Just pointing out a great article by Patrick Ross at copyrightalliance.org that argues against the prevailing current of opinion that “Copyright owners should accept infringement as a reality and pursue other paths for compensation”
But it’s disingenuous to argue — as even some academics such as Fisher, Lessig and Palfrey do — that just because some people infringe, those being infringed should just give up their rights and hope for the best.
This fine article from Forbes.com describes the current cloud surrounding interpretations of legal doctrine of Fair Use. The Fair Use doctrine is a part of US Copyright law that describes the conditions that have to be in place when using copyrighted material without permission from the creators.
Digitization and the Internet have blown the issue of what is and what is not “Fair Use” up beyond anyone’s imagination. When the concept was originally set as part of copyright law, Fair Use was to
facilitate the quotation of excerpts in a review or criticism for purposes of illustration or comment
allow for the reproduction by a teacher or student of a small part of a work to illustrate a lesson;
allow the reproduction of a work in legislative or judicial proceedings or reports;
to allow the incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.
The Forbes.com article, written by Dan Fisher and Dirk Smillie makes these important points…
The real problem? Copyright laws never anticipated a time when people would be able to broadcast essentially private content all over the world, including scraps of copyrighted material.
Yet for all its importance, [Fair Use] remains a tricky concept courts determine on an agonizing case-by-case basis–making it difficult to determine whether the Next Big Thing on the Web is providing a valuable public service or violating copyright law on a wholesale basis. Judges must consider the nature of the work that has been copied, how much of it has been copied, and whether the copying hurt the ability of the content owner to make money off of it.
Today’s tug-of-war is mainly between Internet content providers, who use the doctrine of Fair Use as the rational behind posting copyrighted material without permission and content creators who believe that some content web sites are infringing on their copyrights and thus their right to earn money from their creations.
In the end, it’s about money. You have web content providers using Fair Use to enhance their business model on one hand and on the other, you have the content creators who feel that today Fair Use is being used to take money away from them.
The article describes how three separate parties, a young musician, Google’s YouTube service and the Warner Music Group, became entangled over the use of the Christmas classic “Winter Wonderland”
The musician, Juliet Weybret, uploaded a video to YouTube that showed her performing the song. A few weeks later she was informed by YouTube that the video was being taken down because of objections by the Warner Music Group. Warner Music Group owns the copyright for Winter Wonderland and currently has no licensing agreement in place with Google.
Ms Weybret rightly felt that she was using the song in a noncommercial way and therefore was within the tenets of fair use. She was not gaining financially in any way by performing the song. It was basically a home video that she put on YouTube. The performance is not a money making venture, it doesn’t compete or impede Warner Music Group from earning income from the song. If you look at the performance itself, it is certainly fair use and does not infringe on the copyright in any way.
Warner Music Group, no doubt, feels the same way about the performance. However, when that performance is uploaded to YouTube and becomes part of the content of a multi-million dollar enterprise, then the notion of the performance (the video) as fair use is challenged. In Warner’s view, the video now contributes to the income YouTube makes from showing videos on the web. The use of the video by Google/YouTube is therefore not fair use.
Use of third party copyrights without permission has dogged YouTube since it became a major Internet presence. The company initially relied on Fair Use as well as the safe harbor provision of the DMCA as an argument for not removing video content. That decision created a substantial amount of push-back from copyright holders and a slew of lawsuits followed. Google now has a very high-tech filtering system that will automatically remove videos that use unlicensed content from YouTube.
From the NY Times article…
Referring to Ms. Weybret, Ben Sheffner, a copyright lawyer in Los Angeles who has worked on antipiracy at the 20th Century Fox movie studio, said, “From her persepctive it’s completely noncommercial because she’s not making a dime. But from another perspective it’s entirely commercial because Google is trying to make money off it”
On June 2nd, the judge in the copyright infringement case Yoko Ono brought against the creators of the film “Expelled” for their use of John Lennon’s song Imagine has ruled in favor of the filmmakers based on a the “fair use” doctrine.
U.S. District Judge Sidney Stein rule that “the doctrine provides that the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright.”.
You can read the judges entire decision here. Those interested in the fair use doctrine should take the time to read the judges opinion because he very thoughtfully describes and then rules on each of the criteria that make up fair use.
The Purpose and Character of the Use
The Nature of the Copyrighted Work
The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work
The judge’s decision seemed mainly to rest on a subsection of “The Purpose and Character of the Use”, namely Transformative Use. Here is the ruling.
ii. Transformative Use
A work is transformative if it does not “merely supersede[] the objects of the original
creation” but “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Although transformative use “is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Thus, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”
There is a strong presumption that this factor favors a finding of fair use where the allegedly infringing work can be characterized as involving one of the purposes enumerated in 17 U.S.C. § 107: “criticism, comment, news reporting, teaching . . ., scholarship, or research.”
Defendants’ use is transformative because the movie incorporates an excerpt of “Imagine” for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views.
Conclusion Regarding Fair Use
The balance of factors clearly favors a finding of fair use. Defendants’ use of “Imagine” is transformative because their purpose is to criticize the song’s message. Moreover, the amount and substantiality of the portion used is reasonable in light of defendants’ purpose. Although “Imagine,” as a creative work, is at the core of copyright protection, and defendants’ use of the song is at least partially commercial in nature, the weight of these factors against a finding of fair use is limited given that defendants’ use is transformative. Finally, plaintiffs have not shown that defendants’ use will usurp the market for licensing the song for non-transformative purposes. In sum, allowing defendants’ use would better serve “the copyright law’s goal of promoting the Progress of Science and useful Arts . . . than [would] preventing it.”
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Ono’s position had been that she had the right to control use of the song by reviewing and choosing licenses. She also had the right to reject uses of the song. She brought the suit because she believe the filmmakers had “looted her of the ability to do so”.
Yoko Ono’s attempt to get an injunction against the film “Expelled: No Intelligence Allowed.” will shine a much needed light on current interpretations of the “fair use” provision of copyright law. Fair use is easily the haziest and least understood aspect of US copyright law.
Yoko Ono (and EMI and Capital Records) is seeking to have about 15 seconds of John Lennon’s recording of Imagine removed from the film. The injunction doesn’t ask for the film to be removed from theaters, it is asking for Lennon’s music to be removed from the film.
Ono sued in state and federal court, accusing the movie’s producers of infringing on the song’s copyright by using parts without her permission.
The movie, which opened on U.S. screens in April and is set for release in Canada on June 6 and on DVD in October, presents a sympathetic view of intelligent design, the theory that the universe is too complex to be explained by evolution alone.
The filmmakers acknowledge they did not ask Ono for permission to use 15 to 20 seconds of the song. But they argue they are protected by the ”fair use” doctrine, which permits small parts of a copyrighted work to be used without an author’s permission under certain circumstances.
At a hearing in U.S. District Court in Manhattan this week, the filmmakers’ lawyer, Anthony T. Falzone, said that if the judge granted Ono’s request for an injunction against the film, it would ”muzzle” the filmmakers’ free-speech rights.
Falzone said the segment of the song in the film — ”nothing to kill or die for, and no religion too” — was central to the movie because ”it represents the most popular and persuasive embodiment of this viewpoint that the world is better off without religion.”
The film, he said, is ”asking if John Lennon was right and it’s concluding he was wrong.”
[Sidenote] Actually I don’t think John Lennon was saying in Imagine that the world would be better off without religion, I think he was saying that people get tied to their own particular beliefs and by doing so a lot of trouble is created in the world. Imagine is about breaking out of boundaries that are created by oneself.[end Sidenote]
The filmmakers’ attorney, Anthony Falzone is the executive director of the Fair Use Project and a lecturer in law at Stanford University. He believes very strongly that copyright law, as it stands now, is in major need of reform. You can read his brief in this case here.
I notice that Mr. Falzone is associated with the Center for Internet and Society at Standford Law School. This is not surprising. A large faction of those that work and think about the Internet (Wired, Fast Company) would like to broaden current interpretations of copyright law and especially fair use.
Getting to a contemporary interpretation of fair use is incredibly important because of the use or misuse of copyrighted work on the Internet. Part of YouTube’s main defense against Viacom will be arguing fair use (amongst other things like DMCA).
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
I’ve been writing about music clearance but the act of getting the legal permissions to use copyrighted content in your production applies not just to musical works but to art and literary works as well. Not taking the time to get the appropriate licensing can land you in legal trouble as ESPN has just found out.
Last year ESPN broadcast “The Bronx Is Burning”, a popular TV series created by their in-house production company ESPN Original Entertainment. The series portrayed the background events leading to the 1977 New York Yankees dramatic World Series run.
Included in the second episode, “Team In Turmoil“, was a full screen shot of Norman Rockwell’s painting “Bottom of the Sixth“. The painting depicts three umpires looking skyward as raindrops begin to fall. It is a classic Rockwell capturing a unique and wonderful baseball moment. The original painting hangs in the Baseball Hall of Fame in Cooperstown.
On May 3rd, the Associated Press reported that ESPN is being sued by Curtis Publishing Company, the owner of the Rockwell painting, for using the image without obtaining a license.
Curtis sent an e-mail to ESPN lawyers notifying them that ESPN did not have a license to use the painting and was committing willful copyright infringement, the lawsuit said.
The lawsuit seeks to bar ESPN from rebroadcasting the series until it withdraws use of the painting. In other words, until it removes any footage of the painting from the episode.
Compounding the problem for ESPN is that The Bronx Is Burning has been sold on DVD and VHS format. Recalling the unsold copies and destroying them and having to issue a new movie with the infringement removed will prove costly for the cable network.
The latest issue of UniqueTracks’ newsletter features an article I wrote that defines Music Clearance - the act of getting the permissions necessary to use music in your production. It also recommends some companies that will handle your music clearance problems when attempting to license a famous or even an obscure recording.
All Clear?
Music Clearance and Music Licensing
Every few weeks or so I’ll get a phone call with an inquiry that goes something like this…
I’d like to use Elvis Presley’s recording of ‘Don’t Be Cruel’ in my film. Can you help me do that?
Regretfully, beyond recommending some other companies to investigate, I am not much help in this regard. Though licensing music is our core business, UniqueTracks only licenses recordings that we have created in-house or that we control the publishing rights to.
What these folks are looking for is a firm that will do “music clearance” work for them. Yes, there are companies you can turn to when you are looking to obtain music licensing rights but have no idea where to turn. These companies will help you acquire the rights to use famous songs but they are even better at finding the rights for obscure songs. Music clearance companies are experts at finding the needle-in-the-haystack information that will eventually track down the song you’re interested in. They will then act as your advocate with the publisher and record company to try and get you the best pricing available.
Democratization of content
Democratization of information
Democratization of media
I’m noticing more and more use of the term “democratization” in articles about the media business.
The term is especially popular in discussions about social media. Social media, a relatively new term, has come to mean those Internet tools that facilitate the “wisdom of the crowd” model where meaning and value are derived through mass collaboration. Examples of social media sites would be such Web 2.0 stars as Wikipedia, Myspace, Facebook Digg, Flikr and Youtube.
Here’s an example from an article by Brian Solis, the owner of the Silicon Valley public relations firm FutureWorks PR.
Social Media is the democratization of content and the understanding of the role people play in the process of not only reading and disseminating information, but also how they share and create content for others to participate. It is the shift from a broadcast mechanism to a many-to-many model, rooted in a conversational format between authors and people.
Democratization, as I understood it, had to do with an authoritarian government moving towards a less oppressive, more open society. When applied to media or content, democratization has come to mean a move away from a perceived old and authoritarian media - the major TV networks, film studios, record companies and newspapers - towards a seemingly less oppressive, personally created environment provided by web technology where content is readily available, is free, and can be delivered based on ones likes and dislikes or even the likes and dislikes of one’s network of friends.
We are naturally attracted to words like democracy or democratization in the United States. It’s in our blood. We learn early on that democracy represents freedom. So when democracy is applied to terms like media and information, it’s easy to believe that this must be a good and positive thing.
My own feeling is that democratization can’t realistically be applied to information at all. By casting the media as authoritarian, the term can be used politically by those technologists who are trying to wrest power away from the established media towards their new Web 2.0 innovations.
Content is evaluated on quality, on how well it informs, entertains, teaches or illuminates truths. Using “popularity” as its measure is to greatly misrepresent it.
I enjoyed this blog post by Andrew Keen, author of last year’s controversial book The Cult of the Amateur. He points out in his blog post The end of the middle that democratization of media is in fact a falsehood and that, in reality, wealth and power are just being reallocated to new companies like Google, YouTube, Facebook etc.
Target Corporation has been using the Beatles classic Hello Goodbye in its recent TV advertising. One spot aired during last Sunday’s Grammy Awards broadcast. They have changed the word Goodbye to Good Buy morphing the song’s refrain into an ad slogan “Hello Good Buy, Hello Good Buy, Hello Good Buy….” The campaign is “Say Hello to Good Buys at Target”.
Hello Goodbye is a song from the Beatles Magical Mystery Tour album and was a number 1 hit for the Beatles in both the US and UK in 1967.
Licensing classic songs is attractive to advertisers (those with deep enough pockets) because they can then begin to trade on the cultural significance of the song. Hello Goodbye is part of the soundtrack for a whole generation (or more). By licensing the song, advertisers leverage this collective, accumulated experience channelling it to sell merchandise. But does our culture (do we) pay a price for this?
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There are several spots using Hello Goodbye. Each has a different musical style or arrangement. Here is one version taken from YouTube.
The article, written by Randy Kennedy, is about the working methods of the artist Richard Prince. Mr. Prince’s art is currently being celebrated in a 30-year retrospective at the Guggenheim Museum in New York City.
One of the methods Mr. Prince uses to create his art is to take photographs of other existing photographs that he finds published as advertisements in magazines.
The strength of the art is that the images he photographs, once removed from their function as advertisements, comment on our culture showing us archetypical images of our society - images that Madison Avenue ad execs have learned have great power. One of Prince’s favorite co-opted images is the Marlboro Man.
But it seems some of Mr. Prince’s photographs are nothing more than enlargements of existing photos. Mr. Prince has done little more than make the decision that the image matches his artistic sensibility. He then calls his enlargement of the existing photo his work and sells that work for increasingly high dollar values. In fact, one of his Marlboro Man pictures set an auction record for a photograph selling for 1.2 million.
The NY Times article centers around Jim Krantz, a successful commercial photographer who took several of the Marlboro Man ad photos “appropriated” by Mr. Prince. One Prince photograph, which sold at Christie’s for $332,300, is an exact duplicate of Mr. Krantz’s original except that it has been blown up to a huge size. Mr. Krantz says, “there’s not a pixel, there’s not a grain that’s different.”
Jim Krantz was paid by the Philip Morris Company for the original photos but has received nothing from Richard Prince. To date, Krantz has asked for no monetary compensation. He is asking for some type of acknowledgement or credit as the original photographer. After all, it’s not just the photo itself, it’s the composition - the conception, the pose, the exact moment to capture - these things were decided by Krantz and re-used by Richard Prince.
The matter provides a stunning look at the challenges facing interpretations of the Fair Use statue within US copyright law. The NY Times article says…
Mr. Krantz, who has shot ads for the United States Marine Corps and a long list of Fortune 500 companies including McDonald’s, Boeing and Federal Express, said he had no intention of seeking money from or suing Mr. Prince, whose borrowings seem to be protected by fair use exceptions to copyright law.
My interest concerns whether Mr. Prince’s use of other people’s photographs truly qualifies as fair use. Here is the law….
—————
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
—————
(1) clearly Richard Prince’s art is of a commercial nature.
(2) a photograph is a copyrightable work.
(3) in some cases, it appears that Prince has used 100% of the copyrighted work.
(4) this is the main issue - the effect upon the potential market for or value of the copyrighted work - when an ad campaign is over, do the elements of the campaign, the photo, the copy, do they have any further value? Has the use by Prince harmed the further value of the photograph? This would be the crux of any fair use challenge.
Mr. Krantz said it best, “If I italicized ‘Moby Dick’, then would it be my book? I don’t know. But I don’t think so.”
Though Jim Krantz owns the copyright to most of his photographs, he no longer owns the copyright to the Marlboro Man photos. The Philip Morris Company, the maker of Marlboro cigarettes, owns the copyright. Any fair use challenge to Richard Prince’s art would have to initiate from Philip Morris.
I keep thinking about an op-ed article I read in the NY Times while flying to Chicago this Thanksgiving. The article entitled Pay Me For My Content, written by Jaron Lanier, urges Internet developers to move away from the “content must be free” mantra and points towards designing systems that fairly compensate creators for use of their work on the web.
The impetus for the article is the ongoing strike by television writers which, among other things, is challenging the studios for a better portion of residual payments from use of movies and shows on the Internet.
“Like so many in Silicon Valley in the 1990s, I thought the Web would increase business opportunities for writers and artists”, Lanier writes. “Instead they have decreased. Most of the big names in the industry — Google, Facebook, MySpace and increasingly even Apple and Microsoft — are now in the business of assembling content from unpaid Internet users to sell advertising to other Internet users.”
“There’s an almost religious belief in the Valley that charging for content is bad.” says Lanier. In fact, Lanier once felt this way himself. Back when the Internet was new, he wrote an article titled “Piracy Is Your Friend”. Now he says he was wrong.
Should information be free on the web? Lanier says, “Information is free on the Internet because we created the system to be that way. We could design information systems so that people can pay for content - so that anyone has the chance of becoming a widely read author and yet can also be paid. Information could be universally accessible but on an affordable instead of an absolutely free basis.”
It’s an important turn. A web pioneer, once firmly behind the idea (the ideal) that information on the web should be free, now says “We need to grow up. Affordable turns out to be much harder than free when it comes to information technology, but we are smart enough to figure it out. We owe it to ourselves and to our creative friends to acknowledge the negative results of our old idealism.”
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An early Internet pioneer, Jaron Lanier is most known as the creator of the term “virtual reality” and for pioneering several early VR products. He is also an accomplished musician and composer.
“What’s to stop an online mass of anonymous but connected people from suddenly turning into a mean mob, just like masses of people have time and time again in the history of every human culture? It’s amazing that details in the design of online software can bring out such varied potentials in human behavior. It’s time to think about that power on a moral basis.”
It’s a very inciteful statement. The damage done by music piracy comes to mind.
Originally written as guides to USENET usage and forum posting, 10 Big Myths About Copyright Explained and A Brief Introduction to Copyright serve as great reference articles for anyone needing basic information about copyright issues. Each article contains a good description of the complex and often misleading aspect of copyright law known as “fair use”.
The articles were written by Internet pioneer Brad Templeton, founder of ClariNet Communications, one of the first businesses to be solely based on the web.
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