Copyright Talk

Have you ever felt like this?

When I was a kid we used to get these little cards sometimes that had a picture on it, but when you tilted it just a little bit, the picture would change, so you’d see, say, a smiling clown and then when you tilted it the clown would be crying. Or maybe it would be a picture of Clarke Kent and when you tilted it, Superman would appear!

If I had a card with a picture of a big media company on it, like the TV networks, or the record labels, and the company spokesperson was talking about the need to prevent piracy and to protect intellectual property so as to encourage innovation and yada yada yada, and then I tilted the card . . . I would probably see something like that little cat. Because while I firmly believe that copyright is good and fair and just and necessary to our society, I also believe that the current “anti-piracy” frenzy - as articulated by large media companies - has in large part been corrupted and is really about extending control and protection of valuable intellectual property far beyond the protection given by our current copyright policies.

I would have no problem with that debate being thrown into the public and policy making arenas. Debate on policies and the viewpoints of diverse groups are essential to democracy and, ultimately, to good public policy. What is not good for public policy and is not good for our society is a debate that is couched as one subject in order to hide the real subject when the debater does not believe it will be a popular position. Instead of doing the work to convince the policy makers that is a good policy, and then accepting the decision made in recognition of the need to live in a society whose needs as a whole may not necessarily match your own personal best case scenario, these media companies are trying to slip one by us in the name of something else altogether.

It’s a “debate” tactic used by teenagers against their parents all the time. In the case of teenagers, it happens because they are not fully developed into adult human beings capable of running a community, be that something as small as a family or as large as the country - notice we don’t let people vote until age 18?

Companies are run by folks over the age of 18. I have no doubt that they would lecture their own teenagers at length about the need for forthrightness and honesty in discussion. Shame on them for being hypocritical in their own participation in society.

Yesterday saw a possibly dramatic development in the YouTube world. The DMCA (digital millenium copyright act) includes a provision designed to address the concerns of copyrght holders over the computer technology that allows easy and instant infringement and, in the view of some large media companies, pervasive and extremely widespread infringment on internet sites such as YouTube. The DCMA allows a copyright owner who discovers an infringing use of their material on a website to deliver a “takedown” notice to the website, alleging copyright infringment and basically requiring the website to pull the material on the word of the owner in their takedown notice in exchange for protection from damages against the website.

Much criticism has been levelled at this process on different sides of the debate. On the one hand, media companies have complained that the burden of policing infringement should be on website owners, in the same way that newspapers and book publishers are responsible for what they print. But users of the sites complain that fair uses of copyrighted material have essentially been ignored in favor of a simple procedure that gives all the power to the owner of the copyright.

One YouTube user fought back, and yesterday won an important early legal argument. Here’s the background: a mother posted a short video to YouTube of her toddler dancing to a Prince song which could be heard fuzzily in the background. Universal Music issued a take down notice to YouTube, which removed the clip. The mother argues (1) that the 30 second clip of the song in the background of the video is a portected fair use, and (2) that Universal Music has a duty to consider in good faith whether there is a protected fair use before they jump in and send a take down notice which is nearly certain to result in the removal of the material.

Wednesday’s court ruling dealt solely with number two (2). The court said that fair use should be considered prior to the issuance of any takedown notice.

While this is a significant ruling in the legal analysis of the DMCA, in practice it may still not make much difference to YouTube users, as fair use is far from a black and white determination. But, it’s still heartening to find that the underlying principals of copyright have not entirely taken a back seat to zealous protection of business assetts.

You can read the short CBS news story here.

Sometimes you get a say, and sometimes you don’t.

Jackson Browne alleges he should have had a say is whether his recording of his song was used in a political commercial for John McCain, and he’s filed a lawsuit for copyright infringement. Reuters reported the story here.

The Jackson Browne song “Running on Empty” was used in an ad produced by the Ohio Republican Party that poked fun at a comment made by Barrack Obama. Jackson Browne, a committed liberal activist, alleges not only that the use violates his copyright because he never gave permission to use the song, but also violates his right of publicity because the use of his voice implies that he supports the views expressed in the commercial. Remember, the commercial used not just the song, but the Jackson Browne recording of it.

The use of a recording in a commercial, movie, television show, or other audio-visual media requires actual permission from the owner of the copyright for the use. While a songwriter cannot prevent anyone from making and publicly releasing a sound recording of their copyrighted song, they can prevent the use of their song in visual media.

McCain has not yet filed a response to the lawsuit, but I can’t wait to hear what it is, what with all the laws the government has been playing fast and loose with lately. Let’s see if his camp apologizes or digs in.

It seems obvious, but it never hurts to have a court say it’s true. Money is not the only thing that makes the world go ’round, and free does not mean anything goes.

Briefly, an open-source software provider sued a company that used a portion of their code in another program without attributing it to the orginator, as required by the open source license. Although the use itself was allowed, they failed to follow the condition of attributing the source. The district court said, in essence, that because the code was distributed for free, there could be no infringement, no damages and therefore no enforcement of the license terms.

The good news is that the software provider appealed and the appeals court said free does not mean abdication of copyright control. So, even though the program was free, the provider has the right to put conditions on the use and to sue for infringement if those conditions are violated.

While this is obviously a great decision for the open source software movement, it’s also a boost for musicians who distribute free music through Creative Commons licenses or their own versions. Many of the Creative Commons licenses allow free uses of the music but with strict guidelines on attribution and modifications. Now we know courts are likely to find infringement when conditions of an otherwise allowable use are not followed.

Good news indeed for the free love movement.

You can read the decision here, if you like to read such things.

Photos, of course, are covered by copyright. If you’ve ever been married, or had professional head shots taken, or you have kids whose after school activity hired a professional photographer to take wonderfully cute pictures of the tykes in their costumes/uniforms, then you know this. You’ve seen the warnings on all the material about what you can and can’t do with the pictures and why you have to go back to the original studio to get more copies even though we all have the machines to make really good copies. (This is very much like the whole music piracy situation, just not as well known or as much talked about.)

But there are times when you actually do own the right to make copies of a photograph. It can. however, be difficult to prove.

Witness the story that came out today about one consumer’s quest to make copies of very old family photographs. She went to WalMart to scan the pictures, and was told by an employee that she couldn’t because “copyright lasts forever.” Aside from that assertion beimg false, it’s still a problem if you have no way to prove you possess the right to make a copy, either because the photo is in the public domain or because you do in fact own either the copyright or an unlimited license. Many copy centers have a policy that they can ask for proof of your right to make copies - so if you’re a very good photographer and you printed you photo in such a way that it looks like a studio shot, you may find yourself being asked for a release or other proof from the “studio” that you have the right to make copies.

The Walmart story is here. And here’s another WalMart photo problem from a couple of years ago.

Every original work of authorship that is fixed in a tangible form is protected by copyright. That includes letters and - these days - email. Which means that when you die, those emails may be part of your estate.

Hmmm.

Is that something you want? Your executor (or next of kin) will already be poking through your underwear drawer. Will people also be able to read all your emails? The answer is: maybe.

If you keep email on your hard drive, then any files on it, including email, can be viewed after your death.

However, if you use a web based email service and store emails on their servers, then whether the email is accessible to others after your death depends in part on your wishes and in part on the policy of the email provider. Some email providers will not release email to anyone. Others will do so with specific documentation, or sometimes even a court order.

The bottom line is that if you want your email (and other types of internet accounts, as well) to be accessible to someone in the event of your death, then you need to leave your account information and passwords where they can be found when necessary. And if you do NOT want to have anyone reading your emails even after your death, then you’ll need to take specific steps, such as checking out the policy of your own email provider, or leaving instructions in your will that the executor is not to access or distribute your email accounts.

Work-for-hire rules can trip up more than just the authors. The general rule is that copyrightable work created by an employee of a company in the course of their employment duties for that company, belongs to the company and not to the individual who created the work. The work can belong to the employee, IF the employee and the company agree in writing.

But if there is no written agreement otherwise, employees’s creations belong to their employer.

Mary J. Blige is being sued for copyright infringement because she recorded a song that was written by one of her producers, Theron “Neef-U” Feemster. No one disputes that the song was written by the producer. The problem is that a New York production company, Dream Family Entertainment, claims he wrote the song while working for it, and that the song belongs to Dream Family.

So is there any problem, beyond having paid the wrong person? Maybe.

Dream Family is asking for damages only, which may be good news for Blige. Here’s how the situation breaks down:
Blige released the song on an album and a single. The first time a song is ever recorded and released publicly, the copyright owner must give permission (or permission can be withheld). Once the song has been publicly released, then anyone can record it and pay the compulsory license fee to the owner. So if the song, “Work It,” had ever been recorded before, then Blige had a right to record it conditioned only on paying the compulsory fee. However, if it had never been recorded before, the compnay could ask for monetary damages as well as the withdrawal of the recording - which would mean recalling all unsold albums and re-pressing the album without the song. Apparently, Dream Family is not asking for this remedy.

The song was also used in a television commercial featuring Blige. Using a song in this way implicates what are known as “synch” rights, or the right to synchronize a song with a video recording. Using a song in this way always requires the permission of the owner, and the payment is individually negotiated. So, once again, Dream Family could ask for the commercial to be withdrawn in addition to any monetary damages they would be entitled to.

At this point, Blige’s camp could do a number of things. They could defend the suit and try to prove that Dream Family does not own the song. They could agree to pay Dream Family for the song and simply sit down with them and work out a number. And they could also turn back to the producer and claim fraud or some other harm caused by his assertion that he owned the song.

Just thought I would note that copyright registration is not a magic thing. It does two main things for you:
1. protects your interests in the event of an infringement
2. makes it slightly easier for people who might want to use your previously published work to find you.

The work of getting paid for what you do does not change whather you have a copyright registration or not. If you’ve released recorded music, you’ll have to register the songs with your performing rights society. If you’ve sold written works or art, you’ll need to stay on your auditing provisions to determine how much you should be paid.

And of course, you still need to sell the work to someone in the first place.

Registering your first copyright is an exciting moment, and you should savor the fact that you actually completed a work. Just don’t think copyright registration is a magic moment, because it’s really just an adminsitrative task, like renewing your driver’s license. It’s exciting when you get your license for the first time, but it doesn’t mean much unless you have a car. Copyright registration is the same way - it’s important, but unless you have a sale, it’s pretty meaningless.

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.