Copyright Talk

Today is the first day of the US Copyright Office’s new online registration system. I think. As of 8:11am this morning, July 1, there’s no “portal” evident on their site, despite an announcement declaring that everyone can use electronic, online registration as of July 1. But whatever.

Up until now, the office has offered it’s forms for download on the website, which was helpful, but you still had to actually fill them out and mail them in with a check. Now, all that can be done online, although you will still have to physically mail to them a copy of most registered material. It is helpful, but you may still have truck down to the post office (and maybe to the office supply store to get an envelope first). Works that are being published ONLY in electronic form can be uploaded directly to the Office however. Among other things, this will cover web pages and web graphics, ebooks, and some music. It’s a start.

The incentive to use the electronic registration system is that it is $10 (ten) cheaper than postal registrations. $35 versus $45. That’s a significant enough savings to make it worthwhile. There is a faq page available on the new system, but it’s really pretty easy.

I know that songwriters sometimes get overwhelmed at the thought of trying to get noticed by an adoring public - or even any public at all. Somehow, seeing rows and rows of records in a store and knowing that you were just one of many was less daunting than browsing myspace and seeing bands from all over the world who HAVEN’T been noticed yet and knowing that you are one of many hundreds of thousands who is competing for attention.

However, there are lots of nearly everything. Lots of lawyers, lots of plumbers, lots of data entry clerks, lots of computer technicians, lots of telephone salespeople. It’s a big world, and yet, barring some personal issue, we all seem to be able to make a living and to do the job we choose to do. It’s just that most of us don’t start at the top (I didn’t get to argue at the Supreme Court my first year out of law school. Or in any of the years since then, either. ) The fact that there are lots of songwriters shouldn’t be a deterrent if you really have a passion for songwriting.

However, if you want to make a living, or even just pizza money, you do need to be aware that there are lots of ways to make money being a songwriter without having top ten radio hits. Very few lawyers ever go to the Supreme Court, but lots of them make a living being lawyers, and the same is true of songwriters.

Songwriter Craig Bickhardt talks tough to struggling songwriters with delusions in their eyes. Two of his best appeared in the last couple of weeks, here and here.

I wish I had a problem like this. My teenage daughter draws comic books, so maybe one day . . . .

Back in the 1930’s, two near-kids, Jerry Siegel and Joe Shuster, created the character of Superman. After a few small publications, they were offered some money by Action Comics to sell the rights to Superman, which they did. Superman has since become big, big business. Because of the small amount of money used to purchase the rights ($130.00) and the huge amount of money generated by the character since (comic books, television shows, major Hollywood movies, etc), Siegel and Shuster tried several times to reclaim all or a portion of their copyrights.

At the time the rights were sold, copyrights were issued for a 28 year period, with a right by the copyright holder to apply to extend that period for another 28 years. When the first 28 year period expired, Siegel and Shuster argued that the copyright sold had been only the initial period, and that the copyright then reverted back to them. The Court disagreed, holding that they had sold “all” rights, including the right to extend the copyright.

Several subsequent revisions to the copyright act and its’ terms offered new opportunites for the pair to argue that the rights should revert to them, but it wasn’t until the 1976 copyright revisions that the two were given a new hope. That act specifically granted a right to reclaim a copyright that had previously been sold. In the case of Superman, that right would attach in the late 1990’s. Siegel had died by then, but because copyrights pass by law to specified relatives, his wife and daughter sought to exercise the reversion right.

Warner Brothers, to which the rights had passed, disputed their claim, but last month the court ruled that, at long last, Superman’s rights revert to the family of the creator (Shuster’s estate has not participated so far). There are numerous legal details still to be determined, including rights to which derivative characters are included. Warner Brothers has also filed an appeal of the court’s decision.

Is there a lesson here? Yes, absolutely. First, not matter how desperate you may be to sell something, it is very important to have in writing what the terms of the sale are. Second, it is hard to anticipate what may happen in the future, both with your material and with the law. This second point makes the first even more important. If in doubt, sell as few rights as you can manage, and do your homework on how to word it.

ASCAP (the American Society of Composers, Authors, and Publishers) has just created and released a Bill of Rights for Songwriters and Composers. In other words, a bill of rights on creators, and whether you spell “creator” with an upper case or lower case “c” here depends in large part on how you view the role of copyright as it concerns music in these digital times we live in.

There is nothing new or startling or even controversial, really, in the bill of rights. Everything in it is merely a restatement of the law, or a clearly common sense statement. But what the release of this document does is shift the focus of the copyright debate from the view that the “big guys” are picking on the poor little average guy who just wants to listen to music, to a focus on the (C)c)reators of the music and their place in the universe. Music and songs are not natural resources just lying around for the taking. They aren’t a finite product that once you have it you can possess to the exclusion of everyone else. Music is different than most things, and therefore, the use of it - and payment for that use - must be governed by slightly different rules than those that govern use, sale and possession of, say, a hammer.

So you sold or licensed the rights to a copyrighted work. Congratulations! Now comes the part that is hard for most creative folks - keeping track of the project and your payments. Whether you handle it yourself, or whether you hire an administrative service to do it for you, it must be done. This is remarkably important when dealing with copyright licenses and waivers and agreements, because the “tail” on these things can be oh so very long, especially in light of the technological explosion we’ve been undergoing for the last hundred years or so.

A great example of this appears in a recent lawsuit filed by the estate of JRR Tolkien, author of the books collectively known as the “Lord of the Rings.” The estate alleges that the makers of the recent film adaption of the books, which was hugely successful (unlike several previous films of the series), owe several million dollars to the estate. New Line Cinema has been sued a number of times by various parties over payments related to these movies. It’s not clear to me whether the suits are happening because New Line is not paying close attention to the royalties they owe, or because the sheer amount of money (in the billions of dollars) that these movies have generated makes them a target, but the fact remains that accounting for royalties can be complicated, and is always tedious and detail laden.

Actually, Tolkien originally sold the film rights, with royalty payments specified, back in 1969, when he was still alive. I believe the first movie based on the books, was not made until 1978. And of course, the live films with the huge gross were released 2001 - 2003. That’s a lot of years to wait, pen in hand, to begin counting (and accounting) for royalties. Without a system in place to track your rights, you could lose significantly. While the Lord of the Rings is unusual in that it would have been hard for anyone associated with the estate to miss the fact that several major Hollywood films had been made and were doing quite well, it could easily have been that the estate would have trouble finding the original 1969 terms of the sale in order to ensure proper payments.

Every copyright owner who sells rights of any kind needs a good record-keeping system.

If you have trouble organizing, you may have health problems as well, says Jummy. Read here.

Last year - actually, almost exactly a year ago - I wrote about a lawsuit filed by several students over a school requirement that all papers be submitted to a web-based plagiarism checking site. The gist of the dispute was that submission to the site came with a requirement that permission be granted to archive copies of all papers for use in future plagiarism checks.

Earlier this month, the district court ruled in the case, and the students lost. Thanks to William Patry at The Patry Copyright Blog for a summary of the opinion.

The students lost on two fronts. First, the court ruled that they had entered into valid contracts with the company that allowed the company to do what they did. Second, even without the contracts, the company’s use of the student papers fell within protected fair use.

Fair use usually, but not always, assumes the use of a portion of a written work, not the entire piece, as was the case here. The finding of fair use in this case is based much more heavily on the purpose of the use and the affect on the author’s ability to commercially exploit the work. This is a good sign that actual legal analysis of fair use cases is not entirely dead.

A blog on the Wired network reports an interesting story about a recruiting video used by the US Air Force. The blog, Threat Level, was sent a copy of the video by the Air Force itself. Threat Level uploaded the video to YouTube in order to share it with their readers, and received a thank you from the Air Force for helping to publicize it.

Then things got weird. Last Thursday, a law firm sent a DMCA take down notice (Digital Management of Copyrights Act) to YouTube, alleging that the poster did not have authority to post the copyrighted video.

Threat Level, no doubt scratching their heads till nearly raw over why the Air Force suddenly wants to the video pulled, points out that government produced works are not copyrighted, and also that the Air Force’s own website - one on which this very video plays - includes a statement that “Information presented on the Air Force Recruiting website is considered public information and may be distributed or copied. Use of appropriate byline/photo/image credits is requested.” I couldn’t find a separate statement specific to the video anywhere on the website.

The Threat Level post, along with a link to the letter sent to YouTube on behalf of the Air Force, is here.

But it is not quite so simple as Threat Level maintains (though my own head is raw from scratching over why the AF asked for the video to be publicized, and then got annoyed when it was). The general rule is in fact that material created by the government is not copyrightable, and is therefore available for use and reproduction without restriction. But there are some instances where a government owned work may in fact be protected by copyright. If a work is created by a non-government entity or person, so that the work is covered by copyright, the copyright owner can assign that copyright to the government, which then can act as any other copyright holder, granting or withholding permission to reproduce the work. So, for example, if a private company had created the video on spec, and then offered it to the AF, then the AF could hold a valid copyright by virtue of a transfer of that copyright. In most cases, though, the AF (or other government agency) would hire a company to produce videos like this on their behalf, effectively making them a “work-for-hire” which would result in the video being essentially created by the government agency and therefore not covered by copyright. But it could happen.

Secondly, even works produced by the government and therefore not covered by copyright, are not required to be released to the public. No law requires government agencies to release everything they do to the public, so it is possible that dissemination of a video would be improper even if the video was not covered by a copyright. Of course, that’s not the case with this video, since it has already been released to the public.

Bottom line is that not all government materials can be assumed to be free of copyright and other restrictions, but I’m puzzled as to why the video in question here is alleged to be under the copyright control of the AF. No doubt, we’ll hear more about this.

Raptors - those magnificent birds of prey that include hawks, owls, and eagles - have taught aeronautic engineers a lot about flight maneuverability at high speeds. Our modern fighter jets owe a great deal to the elegant design of the raptors. The jets are not so elegant as the birds, but they are a ton more maneuverable thanks to the fact that hawks do not have a copyright or patent on their bodies.

I watched a show last night on PBS that discussed how raptors are designed to do the things that they do, and showing the adaptations that have been made to fighter planes based on observations of these birds. Fascinating. Anyway, the show also mentioned something which owls and eagles are particularly known for - their vision acuity. Owls and eagles are able to spot and follow prey from great distances, in part because their eyesight is much sharper than that of the human eye. Apparently, this is because the birds have a “dimple” on their retina, effectively giving them two fields of vision at a time, one of which acts basically as a telephoto lens. But they have other adaptations as well, including the ability to see a broader spectrum of light, and the ability to “stabilize” the object they are stalking while moving in on it at a high rate of speed, so as to prevent losing sight of it altogether.

In other words, the raptors have sight that allows them to do multiple things at once, all of which are necessary to find and catch small prey.

So it occurred to me that perhaps raptors can teach us not only how to fly better, but perhaps how to do other things better as well, such as monitor computer data for copyright violations. The greatest concern raised about currently developing technology used by youtube and others, is that it has only the ability to spot similarities in data, but not to spot actual copyright violations versus legitimate uses of material, such as those which fall under fair use. Like the vision of raptors, any technology designed to automatically detect copyright violations will have to be able to do several different things at once - determine similarity, determine context, and determine amount. Anything that fills less than all three needs, simply falls short, and will inevitably lead to errors.

If you’ve ever registered a copyright, you know that you’re required to submit a copy of the work to the Copyright Office as part of the registration process. The US Copyright Office is a government office, and is actually part of the Library of Congress. So does that mean that your work is now available to be seen by anyone?

The Library of Congress does include some of the materials deposited with the Copyright Office in its official collections. The selection can be made at any time after the registration. But the majority of material registered is not included in the official
Library collections. The rest of the material is merely catalogued and warehoused by the Copyright Office.

Any published material deposited with the Copyright Office can be placed in the collections of the Library of Congress. Actual selection is at the discretion of the Library.

Unpublished material is also subject to inclusion in Library collections, and is available for viewing by visitors to the Library. But federal regulations require the Library to treat these works carefully:

“All unpublished copyright deposits retained by the Library of
Congress in its collections shall be maintained under the control of the Library of Congress with appropriate safeguards against unauthorized copying or other unauthorized use of the deposits which would be contrary to the rights of the copyright owner in the work . . .”

Material not placed in the Library collections is kept by the Copyright Office. The Copyright Office materials are not open to the public. Generally, any person can obtain a copy of the registration form itself, but copies of the registered work can be obtained only in very limited circumstances:
1. Where the copyright owner or agent has given written permission;
2. Where litigation involving the copyrighted work is pending;
3. By court order, when the copyrighted work is to be submitted as evidence in a case pending before the court.

The Copyright Office generally keeps the originally deposited copy of the work, or some type of copy of it (such as microfiche), for at least the term of the copyright, but the length of retention is discretionary and some items may be disposed of earlier, particularly if the item has been included in the Library of Congress collections.

And if you go to Washington to look up material, check out this exhibit on Running for Political Office - http://www.about-washingtondc.com/new-exhibit-running-for-office/

Need a how-to lesson? Here you go -

When you create a work, in the US you automatically have a copyright in that work. You do not need to do anything to have the copyright. However, if you want to put the world on notice that you have this copyright, you must register your work with the US Copyright Office. The basic registration fee is $45 for each registration, but in many cases you can include more than one work at a time in the same registration. The Copyright Office has separate forms for specific types of works, and you can get them here. In addition to the registration form, you must provide a copy of the work to the Office. The type of copy depends on the type of work you’re registering, and is explained on the registration form.

Copyright registration is very much a do-it-yourself project, but you’ll find lots of services out there willing to do it for you, for a small fee, of course. Whether you want to use one of these services or not is entirely up to you, but you should know that there is nothing tricky, “legal”, or complicated about registration that would require help form someone else. Filing trademarks are a little more complicated, and many people do in fact benefit from hiring services to help them. Same for patent filings, which is such a different and complicated animal that you should really, in most cases, have an attorney helping you.

But copyright registration is not that way. So if you are thinking about using a service, be sure that you are getting something useful for the extra money you’ll spend.

There are some questions that you might have when filling out the registration forms (like “do I have a co-author?”) but the questions that might come up are pretty easy to find answers to, usually on the Copyright Office website itself, or you can find all kinds of useful and reliable information by searching the internet.

And one last note: mailing yourself a copy of the work has no legal significance. If you need a copyright registration, spend the $45 and register it properly.

Okay, so I’ve said again and again that the person who owns the copyright to a work has the exclusive right to determine when and how it is used. The copyright owner can either give or withhold permission to others for the use of their copyrighted material.

Unless you are a songwriter. There are a few exceptions to the exclusive rights provisions, and perhaps the broadest exception applies to songs.

Section 115 of the US copyright code gives anyone the right to obtain a compulsory license that allows them to record a copyrighted song for distribution to the public, as long as the song has already been recorded and released to the public. The law provides a statutory rate of payment for use of the song, as well as notification and collection procedures.

Songwriters, like parents, must release their babies into the world and hope they find their way. Unlike parents, though, songwriters can expect their babies to send money home, even though they don’t get to approve the way they live.

Copyright will one day be overhauled. It won’t happen soon, and it won’t happen quickly, if for no other reason than that the infrastructure that supports the copyright laws is so huge and far-reaching that it will take some time to make changes that don’t completely blow up the system and leave chaos in the realm. But change will come.

Why am I so sure of this? It’s not because some few are calling for change. The renegade intellectuals, the well-muscled corporate giants, and the confused masses that call for changes - many of which changes don’t even make sense, and sometimes aren’t even real changes - are not the reason I know change will come.

The reason I am so sure that change will eventually come is that the populace has begun to be confused by the law, which leads to ridicule, which will lead to a public debate, and which leads to more and more outright defiance of the law. All of these things are already happening, and the incidence is increasing. It’s not a mere blip on the radar, it’s a surging of the sea that will raise the tidal line.

The tech and legal headlines today read like an exercise in perspective for a writing class: “TorentSpy Loses Case” “MPAA Wins Case” “TorrentSpy loses Lawsuit” “MPAA gets Win”

There seems to be pretty much an equal division of how the ruling is described.

That may be more to do with what the ruling is actually about rather than the biases of the reporting articles.

Brief recap: MPAA sued TorrentSpy for copyright infringement, alleging that they basically aided and abetted and the pirating of movies. The most interesting issue in the case was likely to be whether a search engine, through which users could locate pirated copyrighted material, was responsible for copyright infringement even if the search engine did not host the materials.

However, in an uncommon move, the court has ruled that the lawsuit is over and that the MPAA wins. But the win has nothing to do with the copyright issues, and the trial never started. The problem here was the conduct of TorrentSpy during the pre-trial discovery phase of the lawsuit. During discovery, each side of a lawsuit is required by law to preserve potentially relevant material and to turn it over to the other side if they are asked for it. Those are the rules all companies and individuals have to play by when the courts are involved (and sometimes even before then).

TorrentSpy, the court determined, had changed, destroyed, or hidden material that they were required to preserve. The MPAA argued that TorrentSpy had altered or destroyed so much evidence that it had become impossible to ever have a fair trial. The court agreed, and issued the ruling.

So the bottom line is that TorrentSpy has lost, but the loss has no bearing on any legal issue related to copyright.

Interesting link of the day: For parents here are ideas on ggod hiding places for christmas gifts.

Okay, they’re not really out of date rules, more like out of date forms, but rules rhymes with tools, so the muse demanded I go with that.

Anyway, the new tools are a some applications the Copyright Clearance Center is playing around with. I haven’t had a chance to do more yet than just take a look, so no opinion yet on whether there’s anything particularly useful, but I am excited that this organization is continuing to look into the future with excitement and clever ideas (unlike many companies, who are merely panicking about changes in society, or as “grumpy old man” from the old Saturday Night Live skit used to say, “That’s not how we did things when I was a kid!”) There’s a nice little review of the new service here.

The out of date rules/forms refer to the inadequacy of registration materials for seeking copyright of websites. Nothing from the US Copyright Office exactly fits a website, and although that does not in any way prevent the actual registration of a website, I suspect that in practice, many websites have gone unregistered due to uncertainty on the part of the would-be registrant as to hwo to proceed. Most website designers have a graphics background, which means they are visually oriented rather than verbally oriented, and the need to interpret seemingly inapplicable registration language may just be too daunting. Some tips are offered here.

ZDNet Asia is reporting that a college in the Phillipines has sued Microsoft for copyright infringement.

Yes, I wrote that correctly. The college claims that Microsoft bought a license to distribute a limited number of copies of a manual for Windows XP that the college wrote. However, the college alleges that Microsoft actually distributed a substantially larger number of copies than it had licensed.

This is interesting for a couple of reasons. One, it highlights the fact that subject matter is not copyrightable. The college wrote a manual about Windows XP. Although the college clearly has no claim to copyright in the software itself, copyright does not in any way prohibit the college - or anyone else, for that matter - from writing about the software and holding the copyright to that writing. However, this is not always true with regard to fictional characters. Sometimes, a character may be protected by copyright, and so writing another book about that character might cause copyright infringement questions.

The second thing about this story that I thought was really interesting is the irony of having a large corporation, which spends massive amounts of time and resources on the protection of its intellectual property, be accused of failing to pay close attention to the copyright of the material it uses. Now, in this case, there’s apparently no question that Microsoft started out handling the material appropriately. It determined that it wanted to reproduce and distribute the manual, and it then bought a license allowing it to do so. But after that initial distribution, it somehow failed to properly keep track of what it had a right to do. I suspect the situation was compounded by the fact that the manual was actually about one of it’s own products, which would have made it easy for employees to assume that Microsoft owned the copyright. But the bottom line is that if the allegations in the lawsuit are true, this is a very good example of how complicated keeping track of rights can be. Even those who make a living tracking their own intellectual property can get confused.