Copyright Talk

A ninth circuit court case opinion published last week illustrates the importance of having good, solid contracts in place when you license intellectual property. It also illustrates the complexity of handling works in an age where new technologies continue to be invented.

Orson Welles wrote Citizen Kane, a movie screenplay for one of our cinematic masterpieces, in 1939. At the time it was released, the movie was not particularly successful, at least not in a monetary sense. Welles received very little actual cash for the movie.

Welles’ daughter later sued Turner Entertainment, which now owns the rights and contracts to Citizen Kane, claiming that Welles and his heirs continue to own the rights to a home video release of the movie (and therefore, royalties are owed to them for home video sales made).

The case turns primarily on the original contracts signed in 1939. Although lawyers are pretty good at doing laundry lists of possible rights that may or may not be covered by the agreement in question, it is not necessarily clear whether Welles signed away all his rights in the copyright, or if some new technologies, namely home video in this case, were not covered. If they are not covered, then a new agreement must be made when a company wishes to release the movie in that form. Turner argues that Welles signed a contract giving all his rights to the copyright to the studio (RKO). Welles’ daughter argues that the contrcat clearly stated which rights were being given, and that home video was not on the list. The answer turns, in part, on whether the parties had an intent to encompass everything known and unknown at the time.

There is no question that copyrights can be extremely valuable, although most are not. But everyone that is sold or exploited must be treated as if it was as valuable as Citizen Kane, because you cannot tell at the outset how valuable something may be down the line. Take, for example, the article written by Mary Schmich in which she gave a mock commencement address to the graduates of 1997. The column became a huge viral hit, spawned a musical release by Baz Lehrman and became a hit on radio stations all over.

It can happen. So treat your copyrights as if they are gold. They just may eventually be. Maybe we’ve found the philosopher’s stone after all - technology.

copyright, Citizen Kane, home video, digital rights

A small editorial in the Vancouver (Canada) Sun purports to argue for the death of copyright. Buried in the latter half of the article is this statement, “Copyright was originally created as a means for government to exercise censorship after the advent of the movable type printing press.”

I’ve never heard this before. If anyone out there has some idea of the source or history behind this statement, I would greatly appreciate it if you would pass it on to me.

But that aside, the author of this article argues that copyright is not necessary for authors to be able to get paid for their creative work. He argues that most authors don’t make a meaningful income through copyright anyway, that they make most of their money in other ways, like sponsorships.

First, he’s right that most copyright owners don’t make much - or any - money from copyright licensing itself. That’s because most either don’t try, or don’t try successfully. There’s no evidence that copyright actually prevents them from making money. Some don’t make money simply because they are not very good!

The internet, far from being the inevitable death knell for copyright, is actually the tool that at last allows the potential for a good and useful distribution system for individual creators, who are no longer dependent on being picked up by a good publisher in order to get their works out in front of the public. The internet provides the means to diversify the creative offerings available to the public, whether they are offered commercially or non-commercially.

But it is that same scale that helps individual creators, that also hurts individuals who merely make collages of the work of others. Cute videos backed by popular music, clever retellings of best-selling books or movies, can still be made by individuals, and if they continued to show them in their home to their circle of friends then we wouldn’t be hearing cries for the revision or death of copyright. But because amateurs now have access to the same theater and audience as the pros, but the amateurs do not feel obligated to play by the same rules of permission and copyright, we have a clash of intent.

copyright, derivative works, internet

The Copyright Clearance Center, which I’ve discussed before on this blog, has taken a major participation role in the Special Libraries Association conference, going on now in Denver. In addition to a straight sponsorship role, they are providing personnel for several information workshops.

I’m glad to see this. As I’ve said before, the CCC is a great idea, but is not yet useful in most applications. The more outreach and education on their service that they do, the better the service is likely to become as they have greater resources to add tools and functionality to the clearance process. This could eventually become an additional marketing tool for niche authors and publishers, as well.

copyright, copyright clearance, permissions

Issues regarding dance copyrights don’t come up all that often. I suspect few people even know dances can be copyrighted. C/Net News has an interesting story on a battle over The Electric Slide, a line dance once popular in dance halls and at gatherings of all types.

The story involves a creator in a long battle to preserve the form of his creation. His battle is a little unique in that it wound up with a lawsuit filed against him, which is exactly opposite of how these things usually wind up in court. At any rate, the parties reached a settled agreement, and it is that settlement that I find especially interesting here.

Part of the legal dispute was over what would be a “fair use” of the dance as meant by the copyright law. Rather than go to court and litigate, the parties made good use of their negotiations. The author, it turns out, is not particularly concerned with people posting videos of themselves doing the Electric Slide on YouTube. He IS concerned with videos that show the dance being done incorrectly. Since he doesn’t, in theory anyway, have any objection to non-commercial videos of the dance being circulated, the Electric Frontier Foundation suggested that he use a Creative Commons license to make clear that people could in fact post non-commercial videos of the dance, and he agreed.

The Creative Commons license does in fact make relatively clear what an author will and won’t allow as a use of his/her work. But I am concerned that in this case the CC license seems to have been a method of walking around the fair use provision that attaches to ALL works. Fair Use is not subsumed by the CC license. Fair Use also still exists independently of any CC license. But it is troubling that the CC license here was used as a means of clarifying a right that already existed. If our copyright law is that difficult to understand, then we are indeed heading for trouble.

copyright, dance copyright, YouTube, home videos

Someday, I am now convinced, those little breastpocket devices that the Star Trek crew used to talk to everyone and anything at anytime will become reality.

The question that I’m pondering right now is whether the companies that operate them - the companies we buy our service from, like the telephone company - will have a surcharge for payment of licensing fees to the performing rights societies to cover any incidental background music that may be heard on your transmissions. If you’re standing in a club with a band playing while you call home to let your family know where you are, will there be royalties due on the music filtering in behind your voice? And will the royalty due depend on how the transmission is made? I don’t know what technology will be used to create these littel devices, so the royalty due may depend entirely on whether they use satellite, radio frequencies, or some as yet unknown transmission method.

Hmmmm . . . .