Copyright Talk

Many publishers and record labels discourage unsolicited submissions. They say they won’t take them, won’t consider them, and will hate you if you send them. In real life, companies can refuse to listen to them, look at them, or read them, but they can’t stop them from coming, no matter how often and how loud they say “Don’t send unsolicited submissions!”

So I was amused when I discovered the following on the “Terms of Use” page of indie record label New West:
“SUBMISSIONS
New West Records does not accept unsolicited material. By uploading any material, in any form (text, photograph, music, etc.) and in any manner (bulletin board, email or otherwise), you (i) grant to New West Records the non-exclusive, worldwide right to use, post, publish and display your material on the web site, without royalty or compensation of any kind, (ii) expressly waive any and all rights of privacy, moral rights or rights of attribution and integrity, in and with respect to the material, (iii) attest that duplication and distribution of the material will not violate any right of or require any compensation to any person or entity, (iv) avow that you are the copyright owner of the materials comprising the submission or have all rights necessary to authorize its unfettered use and distribution and (v) confirm that you are eighteen years of age or older. You understand that, once your material is posted, anyone can download and/or distribute that material. You expressly waive any and all claims you may have against New West Records and release New West Records and its officers of any liability herewith.”

My first thought was, “Would this language actually insulate New West from a copyright infringement claim if they posted and allowed downloads of an unsolicited submission?”

But before I got through analyzing the legal issue, another thought occurred to me. Might this threat actually encourage submissions from unknown bands? After all, with so many musicians hungry for exposure to a potential audience, and perfectly willing to give away music in exchange for exposure (see my earlier post on Samantha Murphy), if a band believes that New West would actually post their music as a “punishment,” but it’s on the website of a label with the likes of Dwight Yoakum, Steve Earle, and Kris Kristofferson, wouldn’t a lot of bands consider that a good thing?

I didn’t have to analyze that question for long - the answer is yes. If anyone is naive enough to think that New West will actually put their stuff up for download alongside their well-known national musical acts, then they are absolutely going to send it along, in spite of the warnings to the contrary.

Oh, if only it were that easy to get your music noticed.

I came across this article in a publication from American University. It’s a summary of a panel discussion held on the campus about copyright issues in the digital age. One of the panelists was a songwriter, Samantha Murphy, who records and publishes her music on the internet. Her comments impresses upon me (again) how little most people really understand about these issues. So I thought a deconstruction of her comments, as reported, would offer a good setting in which to discuss copyright law as it applies to digital copying and sharing. And I’m also going to invite Samantha to respond here.

From the article: “Samantha Murphy, owner of SMtv Music and an independent singer/songwriter, said it is more important to protect freedom of expression and the forward movement of technology than to be paid for her music.

She is a proponent of fair use and said that she doesn’t see any problem with people making copies of her albums to share with family or friends.”

My Comments: Fair use allows a person to use, in specific, limited ways, copyrighted material without having to seek prior permission from the copyright holder. Fair use does not currently allow the wholesale copying of music as an alternative to buying it. But the thing is, copyright law does not prevent people from copying music without paying for it. Copyright law prevents people from copying music without paying for it, if the copyright holder does not want them to do so. Copyright law says to people that if you want to copy a piece of music, you must have the permission of the copyright holder. That permission can be given in a couple of different ways. One way is for the person who wants to make the copy to simply ask for permission. “Dear Copyright Holder, May I copy your record and give copies to my friends without paying you for it?” Copyright holder can say yes or no. The second way to give permission is for the copyright holder to say in advance that they do not object to free copying and distribution of their record ( and list any restrictions they might want to put on that).

So if Samantha wants to let people copy her music and give it to their family and friends, she can simply put a notice on her cd’s and on her website that says: Copyright 2007, Samantha Murphy. Permission granted for unlimited copying and performance of this recording.” Or it could say “I give permission for any person to copy and give this recording to his or her family and friends.”

If that’s what she wants to let people do, then she just needs to say so. She can also include any restrictions she may have, such as “I do not grant permission to copy and sell this record to others without specific permission. I do not give permission to use this music for free in a commercially distributed film, television show, or any advertising format. These recordings may not be used as the theme song for any event, company, organization, or political candidate without express, prior permission.”

She can be as specific as she wants to be in her notice, such as “I give permission for this recording to be used in a student or independent film with a production budget less than $20,000.”

From the article: “Murphy said she would rather have her music be available to everyone than she be paid for every single c.d. She even allows consumers to listen to her albums in their entirety on her Web site.”

My Comments: All well and good, but be careful what you mean. Would Murphy be okay with a small label copying and selling the recording without her permission? After all, that would get the music to more people. If she fails to retain control of her copyrighted material, she may find herself in exactly that position. It is better to understand that you can control the use of your copyrighted material in the specific ways that you wish by giving permissions, rather than to say that “music should be free.”

From the article: “Murphy described this practice as getting to know the music “as you would look at a painting before you buy a painting, as you would be able to try on clothing before you purchased it.”

My comments: Looking at a painting is not the same as slapping it on a copy machine and getting yourself a free copy to take home. Now, of course most people will say that a copy of a painting is not a substitute, and anyone that really wanted to buy the painting would not be satisfied with a copy machine version. That is probably true. But in the world of music, our technology has reached the stage that the copies are in fact, in most cases, the same as the original. In the days of cassettes, the quality wasn’t as good, but also the distribution was more limited. At least one person in every social group probably had to buy the record in order for cassettes to get made for a few other people. But in the digital age, it would theoretically be possible for one purchase of a recording to end up replicated for free on the computer of every music lover in the world.

From the article: “Murphy compared her philosophy on the fair use of media content to sharing clothing. “If you buy a shirt, you can lend it to a friend,” she said.”

My Comments: This is the best comment in support of current copyright laws that there is. I agree, if you buy a shirt and want to share it with a friend, you can. Just as if you make a recording and want to share it with whoever, you can - copyright law gives you that right. But the friend cannot MAKE you share the shirt with her, and you cannot force your friend or even a complete stranger to share their shirts with you. They have the right to decide what to do with their shirt, just as copyright owners have the right to decide what to do with their music. And they shouldn’t be forced by law to give it away for free any more than I should be forced by law to hang my wardrobe out on the sidewalk for all to share.

Links of the Day
Band Blogging: How To Release Music Online
A Wiseguy I think is kind of funny

I love creative lawyers, those who come up with new ways to reach their client’s goals without simply running to court and fighting. I also love someone who takes down a bully. So this little legal skirmish was wonderfully satisfying to me.

DirectBuy, a company that advertises below retail prices on home products, set out to maintain a squeaky clean image. So they took it badly when a former customer posted an unflattering review of them on several internet sites. The proceeded to have their lawyers send scary, threatening letters to the poster. The poster turned to a non-profit consmer rights groups, Public Citizen for help. And Public Citizen wrote an absolutely marvelous response to DirectBuy, which they posted, along with DirectBuy’s original letter, on their website. Don’t worry about any legal language in these letters - the message comes through loud and clear and is great reading.

Now, why do I mention any of this on the copyright blog? Because the DirectBuy lawyers got very creative in their letter. The letter is what is known to lawyers as the “cease and desist.” That is, a common first volley when a legal wrong is being committed is to notify the wrong-doer, and ask them to immediately stop whatever they are doing that may be legally out of line. Lawyers frequently use this because if the wrongdoer does in fact stop, the client’s problem is often solved without having to spend naymore money on legal fees.

But for some companies, public image is a concern and the sending of a cease and desist can backfire if the recipient makes the letter public and it looks like the “big” guy (a larger company) is “picking” on the “little guy.” In fact, that’s about what happened to the RIAA with their scary notices to college students who were allegedly illegally downloading music. Even though many of the students were actually acting illegally, the RIAA’s approach looked heavy handed and unfair to a lot of observers.

So to get around this potential problem, the DirectBuy lawyers came up with a strategy. The last paragraph of their letter specifically notes that the entire letter is protected by copyright, and that the recipient is not authorized to reproduce it. And furthermore, said the lawyers, if he does reproduce the letter, they might go ahead and sue him for that, too. The whole thing is absurd enough to wind up on a TV show.

Newspapers and magazines are, as a rule, diligent about ensuring that the material they publish does not infringe anyone’s copyright. Print media generally approach the question of copyright with a “don’t publish unless you’re sure” attitude. Google, on the other hand, is diligent about “unpublishing” infringing material, IF the copyright owner notifies them. They do not, as a general rule, inquire into or verify that a person uploading material to their site actually has the right to do so.

Why is there a difference? Partly, the difference is a result of a law, the Digital Millenium Copyright Act (DMCA), that is aimed at digital publishing. The DMCA was created in response to issues that arose surrounding the use of bulletin boards and chat rooms in the early days of the internet. The DMCA was created largely before the Google and YouTube style business models that are based on user-generated content in a way far beyond the original bulletin board concept, came into existence. However, so far Google has asserted that the DMCA, with it’s “don’t ask unless someone brings it up” approach, applies to it’s pages.

Google, the one time darling of just about everyone, has been taking more and more heat for their business tactics. Now, a small non-profit ethics group is taking Google to task before Congress. What I find most interesting about the group’s approach is the way they found several hundred pirated movies on the Google site - they hired an 18 year old student for a week at ten dollars an hour.

I have long felt some sympathy for these internet giants who have provided an outlet for the creative talents and interests of literally millions of ordinary people all over the world. I’ve tended to think that the technology that allows that to happen also means that it is not economically feasible to have actual people, with actual eyes and ears, that can review all the submissions. The pros of better content review versus the cons of bottlenecking a service that I think is extremely valuable have seemed to me to be difficult to balance. But I don’t think so now. Even a relatively small staff of internet surfers could drastically cut the numbers of pirated videos being posted. And Google can easily afford more than a small staff to do that work. What a great part-time work-at-home job this would be! Not only major studios, but independent filmmakers would benefit from this as well.

Google ethics are seriously failing the “smell” test.

Copyrights are owned by the creators of the work. The law assumes that all authors are equal owners, unless there is an agreement otherwise. What does this mean?

In broadway music, it is common for lyrics and music to be written by different people. So if there is one lyricist and one composer, each will own 50% of the copyright. But suppose there is one composer and TWO lyricists? Under the law, each will own 33%. But if the three people agree that lyrics and music should each have 50% of the value of the song, then they can all agree that the composer owns 50% and each of the two lyricists own 25%. Or if the lyrics were substantially written by one person, and a second person assisted in making some minor changes, then the parties could agree that the second lyricist might own 10% and the first lyricist own 40%. Essentially, the parties can agree to any split that want, but if they do not have an agreement (in writing and signed, so that their intent can be proven), then each will own an equal share.

If Linkin Park writes a song, all the members own an equal share - unless the members all agree to varying percentages among the members. Shakira, on the other hand, is a solo artist and does not write with a band - but if she writes with a partner, then once again she will own an equal share of the copyright along with whatever other people participated in writing the song - unless they agree in writing to different percentages.

There is no magic form that these agreements, commonly called “split sheets,” need to take. Simply write out the date, the name of the composition or work, all authors, and the percentages that each owns. Then have all the authors sign the agreement. When the work is sold,n licensed, or registered with a performing rights society or other entity, make sure that the proper percentages are assigned to each author.

How timely. I’ve written a couple of times, including earlier this week, about what I believe is the biggest obstacle to convincing young adults not to download any music they can find whether it’s legal or not. And now today Eric Heels, on his copyright/baseball blog, tells us about a Norway based service that might just have figured out how to deal with this problem. There will certainly still be questions about the legality, but this comes closer to sitting around the dorm room listening to records than the downloading approach does. Rhapsody uses a similar model, where you listen to music for free - but Rhapsody pays the record companies. On the other hand, Rhapsody is a commercial venture, and they should pay for the music.

Personally, I think that the Ezmo model should be pursued. It will probably need tweaking, and I hate that there’s almost certainly bound to be lawsuits coming rather than civilized summit meetings, but Ezmo is on to something. The smart money is on them and other companies that are sharp enough, creative enough, and visionary enough to pursue this.

The internet has shown it’s ability to simultaneously shrink the world and expand the mind. I want humans to be clever enough to embrace the changes and adapt to them, not waste precious time and resources imitating Dana Carvey’s Grumpy Old Man. Especially in what is bound to be a losing battle - things can and should change, and since it’s inevitable that things will change whether we want them to or not, we ought to jump in and have a say about how the changes occur.

The Rocky Mountain News has a great editorial on the recent attempt to force US colleges to play enforcer in the battle between music owners and college students who download music illegally from the internet. The proposal to strip federal financial aid from colleges with the highest level of illegal downloading activity is a stupid idea for a number of reasons. Until the social issues are addressed, enforcement is never going to be very effective. And frankly, those who will be most likely to abide by the rules are the more studious students who are also more likely to be those with financial aid. The team enforcement approach may work in military units, but college is not set up that way. More to the point, college administrators are staffed and financed to be run an educational experience, not to provide investigation and policing services to private business.

I have nothing against the movie and music industries suggesting these approaches. But it’s the job of the Congress and other policy makers to analyze the pros and cons and the relationship to our overall public policies, and to make good decisions.

How about this? If the loss of revenue from illegal downloads is as high as the industries say it is, then it would be quite cost-effective for them to pay for a staff person on each college campus to provide information and education services to the students on this issue. Let the industry pay people to come up with alternative social constructs for sharing music and hanging out. That’s a job I might even like to have.

“Today I begin using images in my posts. Most of them will be from a stock photo service - places that have been around for a long time, even before the internet (oh my!). They charge varying fees for their photos, some are even free, but they save the user money over hiring a photographer to do a custom photo. However, the user - that means you - must read the license that you are being given. You may not have unlimited use of the photo. And more importantly, you may have use of the photo but not the subject of the photo.

The photo on this post comes from Stock.xchnge (sxc.hu). Below is a clause from their standard license:
“Since SXC does NOT require a written Model Release for each Image that has identifiable people on it, We cannot guarantee that you will be able to use the Image for any purpose You like. Also, if there is a model release for the Image, We do not represent or make warranties whatsoever as to the legality or validity of it.

Each photo on the site has a sidebar with various information, including a notation as to whether a model release is available or not.

The issue here is the right of each individual to control the use of their image or likeness in some instances. It’s a right that goes beyond the copyright of the photograph itself. Which means that the person in the photos has to agree to let their likeness (the photo) be used in the way that the user wants to use it, in addition to the user obtaining permission from the copyright owner of the photo itself.

Got it?

Sometimes the issue is about commerce - if my picture is being used by a business to help their bottom line, then I probably want to be paid for it. But sometimes, the issue is about privacy and control of your own fate, as the situation with Allison Stokke so clearly illustrates. Allison had not agreed to have her photo used this way, contrary to the intent of the “Girls of the SEC,” who presumably signed all the necessary releases.

And by the way, the reason I have a photo of a fingerprint up is that a fingerprint is one of the truly unique images in the universe. You can copy a copy of it, but the actual thing will never be copied again. Only one person per finger, please.