Category Archives: Intellectual Property

Cook’s Source plagiarism fallout

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A recent pilfering of a writer’s intellectual property has caused more than a bit of a stir in the online community. Response was so heated, in fact, that the guilty party, Cook’s Source Magazine, has ceased publishing as of its November issue.

The Story

The editor of Cook’s Source Magazine published a story in both the print and electronic versions of their magazine. But, as it turned out, the story’s author hadn’t given permission for Cook’s Source to publish the article. In reality, the author didn’t even know the article had been published until a friend asked her about it.

Apparently, the editor simply copied and pasted the article from the author’s website. The page is on a domain that the author owns and there’s even a copyright notice at the bottom.

Needless to say, the author wasn’t happy.

In a polite response, the author asked for two very reasonable things.

1. An apology on Facebook and a printed apology in the magazine.
2. $130 donation to the Columbia School of Journalism.

After a colossal blunder like that, one would expect the editor to humbly acquiesce to the author’s more than reasonable demands. Instead, the editor made it clear she would do nothing of the kind, claiming that she and her staff had to do so much editing to the article that the author should thank her for such a good portfolio piece.

However, the really frustrating part of the whole story is the editor’s assumption’s about things that are published on the Internet. Boasting that she had 30 years publishing experience, she actually claimed that the Internet was public domain.

As shocking as this story is, the concept of the Internet as public domain is far too pervasive. The fact remains that anything published anywhere has a copyright owned by its author until that author relinquishes their rights (usually through a transaction of money).

It doesn’t matter which medium is used (print, video, audio, Internet), a copyright is a copyright.

The Fallout

In this case, the general public rose to the aide of the offended author, filling Cook’s Source Magazine’s Facebook fan page with so many angry posts that Cook’s Source was forced to pull down their Facebook page.

Cook’s Source had worked hard to build their fan page to over 6,000 members and with one simple infringement, it was all gone. They appear to be trying to rebuild with a Facebook group, but I doubt it’ll work. After all, the third post is already a call to pick up the discussion where it left off on the old Facebook page.

In fact, because of all the bad publicity, the editor of Cook’s Source decided to pull the plug and cease publishing the magazine. The last issue was the November issue.

One of my favorite blogs is the Copyright Alliance Blog written by Patrick Ross. Here is his take on the closing of Cook’s Source and this whole series of events.

This story went viral on the Internet. Some video spoofs have recently appeared on YouTube…

Can you copyright your name and face?

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That’s the question behind a class-action lawsuit aimed at video game publisher Electronic Arts. Sam Keller, a former quarterback at Arizona State, is bringing the case claiming that Electronic Arts profited from the use of his image and the images of other college athletes in their NCAA Football and NCAA Basketball video games. Amateur rules prevent the use of athletes’ names in commercial products but the games have the same team colors, team numbers, body-types and even athletic moves of the actual college athletes.

The case if blowing up beyond the right to use images of college athletes in video games. A ruling in the case could set a First Amendment precedent defining when a person’s right to control his image trumps the free-speech rights of others to use it.

An early attempt by Electronic Arts to have the case thrown out was rejected by US District Court Judge Claudia A Wilken. Judge Wilken argued that Electronic Arts did not sufficiently “transform” the images into a work that would qualify as free speech.

Major media companies, The Motion Picture Association of America, the Gannett Company, ESPN, Viacom, are lining up in support of Electronic Arts.

Keller has support from significant organizations too including the players unions for professional baseball, basketball, football, hockey and soccer. Each has filed a brief supporting Keller. Keller also has the support of the Screen Actors Guild, the AFL-CIO, and the American Federation of Television and Radio Artists.

Nathan Siegal, who represents the media companies has said…

Treating the right of publicity as if it were a copyright – as if you could copyright your name and face – goes too far, and it would give people too much power to control the First Amendment speech of others

Representatives for the athletes and other famous figures say Electronic Arts has gone too far. Duncan Crabtree-Ireland, the general counsel of the Screen Actors Guild said

The real life consequence would be that anybody making anything other than a television commercial or a print ad – what is very clearly commercial speech – would essentially have the right to use people’s names and likenesses in those projects without any consultation.

Some scholars believe this case could eventually land in the US Supreme Court.

The Tricky Task of Defining “Fair Use” in an electronic world

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Almost every copyright infringement dispute regarding the Internet and electronic media comes down to the tricky task of defining what is Fair Use.

The Fair Use provision of US Copyright law was meant to ease the ways in which copyrighted material could be used to facilitate research. Teachers could reproduce portions of copyrighted material to illustrate a lesson, news reporters and broadcasters would not have to worry if copyrighted material was used incidentally during a news report.

This definition was crafted before the Internet was even a speck on the horizon. At that time using copyrighted material posed a bit of a challenge but in today’s world, where copyright infringement is a right-click away, Fair Use has blown up into a political issue with lobbyists now attempting to stretch the initial intent of the law to fit in digital world.

So far, determining how to apply Fair Use to the Internet and electronic media has proven to be a complex task for the courts. In the mammoth Google/YouTube v. Viacom copyright infringement case, the final decision of the court revolved around an interpretation of the Digital Millennium Copyright Act (DMCA), which addresses the liability of the online service provider, while dancing around the proverbial elephant in the room…the definition of Fair Use.

Cory Doctorow has an interesting post in which he discusses a very concise definition of Fair Use put forth by Tim Wu. Wu’s proposed definition of Fair Use is as follows:

If it adds new value, it’s Fair Use. If it substitutes for the original, it’s infringement.

It’s simple enough, to be sure, but it’s far more favorable to the users of content than it is to the creators of that content. It tracks along the lines of the ideas in Lawrence Lessig’s book Remix which argues that creative content should become something freely available to all for the benefit of moving the culture forward (how did our culture ever move forward before Lessig?). With Remix Culture, content can be used and turned into something else without the permission or remuneration of the original creator. Take a Beatles song, put some new beats on it and viola, you’re a composer.

Lobbyists now talk of the Fair Use Industries and a Fair Use Economy. I would ask – Fair Use Economy vs. what? The Copyright Economy? There is some heavyweight positioning going on trying to broaden the interpretation of Fair Use. To me this is almost always being done to restrict or remove the existing rights of content creators.

To see how the digital world can quickly skew the concept of Fair Use, one need only look at homemade videos uploaded to YouTube. Here you have a non-commercial, family video that uses a popular song as a soundtrack (obvious fair use). But then it gets uploaded to YouTube and becomes site content. Fair Use? It’s now an issue of interpretation. Is the content still Fair Use because the user created the content for private use, or does it infringe on copyright because that content is now an asset of YouTube, a money-making enterprise.

Yes, things get murky in an electronic world. Here’s my understanding of copyright and Fair Use. It’s also a simple definition but it’s one that is being rigorously challenged.

If the content in question is not original to your project (not created by you/in-house or work-for-hire) and its usage is contributing to a commercial enterprise then it is not fair use and the media should be legally licensed.

Don’t ignore copyright infringement

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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”

The article is titled Infringement is Real, Ignoring it is Unreal

Here’s a brief quote…

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.

Copyright, Fair Use and the Internet

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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 USA  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

  1. facilitate the quotation of excerpts in a review or criticism for purposes of illustration or comment
  2. allow for the reproduction by a teacher or student of a small part of a work to illustrate a lesson;
  3. allow the reproduction of a work in legislative or judicial proceedings or reports;
  4. 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 many angles of Fair Use in copyright

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A recent article in the New York Times draws into focus the many differing interpretations and perspectives surrounding copyright law’s doctrine of Fair Use.

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”

Yoko Ono loses copyright suit over use of Lennon’s Imagine

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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 naivety 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.”

    –
    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”.

    Fair Use of Lennon’s Imagine in Expelled?

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    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.

    from the New York Times coverage…

    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).

    ————–
    What the law says about fair use…
    ————–
    107. Limitations on exclusive rights: Fair use

    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.

    ESPN’s copyright clearance gaffe

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    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.

    Music Clearance and Music Licensing

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    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.

    Read the complete article.

    Subscribe to the newsletter – Underscore Secrets of Successful Soundtracks