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.
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”
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.
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).
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What the law says about fair use…
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§ 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.
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.
In a world where it has become incredibly easy to make exact copies of others work, when, if ever, does that work become your own?
This is the overriding question in a New York Times article, published on December 6th, entitled If the Copy Is an Artwork, Then What’s the Original?.
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….
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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.
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(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.
While reading Geetesh Bajaj’s Powerpoint blog on his excellent Indezine website, I came across a Powerpoint presentation that I think would be useful to all media producers who struggle with copyright and licensing issues.
The powerpoint presentation deals exclusively with copyright infringement as it pertains to photography and is the work of PACA (the Picture Archive Council of America ). It lays out the basic copyright law but it is the case studies that are included that really make this document worth your time. You get to see actual infringement cases, what the infringement charges were, and you can see side-by-side, the actual photograph and the infringement photograph. Other points…there is no fixed % an image can be changed to avoid infringement. That is a common myth that circulates within design studios.
The presentation deals with Fair Use, the DMCA (Digital Millenium Copyright Act), ISP Safe Harbor and the public domain. All in all, it’s a really good document to know about if you are ever unsure about your usage of a photo or any other work which you want to use but don’t own the rights to.
A good take-away from this presentation that I would emphasize is that often permission and licensing is easily obtainable directly from the source. In other words, instead of going into competition against a photographer, by recreating a photo (the composition), it is cheaper in the long run to contact the creator and obtain permission to create a derivitive work.
The PACA presentation can be downloaded here
ISPs must take responsibility for stopping illegal file-sharing on its network. So says a court in Belgium in a ruling that sets an important precedent in the fight against piracy.
The ruling against the ISP Scarlet (formerly Tiscali) was aimed mostly at P2P networks. The judge said that ISPs have the technical means at their disposal to either block or filter copyright-infringing material on P2P networks.
IFPI Chairman and CEO John Kennedy said: “This is an extremely significant ruling which bears out exactly what we have been saying for the last two years - that the internet’s gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks. The court has confirmed that the ISPs have both a legal responsibility and the technical means to tackle piracy. This is a decision that we hope will set the mould for government policy and for courts in other countries in Europe and around the world.
The ruling may be bad news for YouTube, faced as it is with several copyright-infringement lawsuits. This case says that ISPs definitely have some responsibility or obligation for the content that is displayed across their networks. YouTube has argued that it can’t know everything on its site, that it removes content once a DMCA takedown notice is served. However if a notice is never served, then infringing material stays. The Belgian ruling says that, in its purview, YouTube does bear responsibilty for the content it serves.
Florence-Marie Cooper, the judge in the Robert Tur vs YouTube/Google copyright infringement lawsuit has dismissed motions by both sides for a summary judgement in the case. Her ruling is that more evidence is necessary to determine if YouTube is protected from liability by the Digital Millennium Copyright Act.
As so many have now said, the copyright infringement cases against YouTube are going to come down to this - Is YouTube protected by the DMCA?.
Here are excerpts of her reasoning and decision…
I find it fascinating to see this play out, for a quick synopsis, read her final paragraph.
—————————————-
United States Disctrict Court
Central District of California
Robert Tur d/b/a Los Angeles News Service (Plaintiff)
vs
YouTube, Inc. (Defendant)
YouTube’s Motion
YouTube’s ultimate eligibility for “safe harbor” protection depends upon whether YouTube can prove that it satisfies certain threshold elements common to all of the safe harbor provisions.
YouTube must prove that:
1. it has adopted and reasonably implemented a termination policy for subscribers and account holders who are repeat infringers,
2. accommodates and does not interfere with “standard technical measures” that copyright owners use to protect their works,
3. its infringement is “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider”,
4. it lacked actual knowledge of the infringing material or was not aware of facts or circumstances from which infringing activity was apparent on its system or network and/or acted expeditiously to remove or disable access to the material upon obtaining such knowledge or awareness,
5. it did “not receive a financial benefit directly attributable to the infringing activity,” if it had “the right and ability to control such activity”,
6. it responded expeditiously to remove or disable access to infringing material upon notification from the copyright owner, and
7. it has properly designated an agent to receive such notification.
YouTube maintains it does not receive a financial benefit directly attributable to the allegedly infringing activity and that it does not have the right or ability to control said activity. As the statute makes clear, a provider’s receipt of a financial benefit is only implicated where the provider also “has the right and ability to control the infringing activity”.
As such, if YouTube does not have the right and ability to control the alleged infringing activity, the Court need not engage in the “financial benefit analysis.”
The “right and ability to control” infringing activity, as the concept is used in the DMCA, has been held to mean “something more” than just the ability of a service provider to remove or block access to materials posted on its website or stored in its system. Rather, the requirement presupposes some antecedent ability to limit or filter copyrighted material.
There is insufficient evidence regarding YouTube’s knowledge and ability to exercise control over the infringing activity on its site. There is clearly a significant amount of maintenance and management that YouTube exerts over its website, but the nature and extent of that management is unclear. YouTube also asserts that while it is able to remove clips once they have been uploaded and flagged as infringing, its system does not have the technical capabilities needed to detect and prescreen allegedly infringing videotapes. However, there is insufficient evidence before the Court concerning the process undertaken by YouTube from the time a user submits a video clip to the point of display on the YouTube website. Thus, there is insufficient evidence from which the Court can determine YouTube’s right and ability to control the infringing activity.
Conclusion
Accordingly, the Court DENIES YouTube’s motion
June 20, 2007
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Thus, the great debate is layed out. What makes it difficult is that clearly YouTube is in compliance with some safe harbor aspects of DMCA. If you look at the 7 provisions, as stated by Judge Cooper, I think YouTube is in compliance with 1,2,3,7 and maybe 6 (though that can be argued). Where YouTube is not in compliance, to me, and this is the main infringment argument, is provision 4 and 5.
4) YouTube lacked knowledge of the infringing material and
5) YouTube did not receive financial benefit from the infringing material.
That part of the DMCA case will be hard for YouTube to make.
Add England’s Football Association Premier League as the latest group to sue YouTube for violating copyright law.
Responding to the suit, Google’s general counsel, Kent Walker, said via email that “these suits simply misunderstand the (DMCA), which balances the rights of copyright holders against the need to protect Internet communications. As a result, they threaten the way people legitimately exchange information.”
It appears that defining YouTube as a “service provider” under DMCA regulations will be Google/YouTube’s main defense in these copyright infringement cases. But will a judge and jury accept that YouTube can be defined as a mere service provider under DMCA parameters? The DMCA (Digital Millennium Copyright Act), which was passed in 1998 under President Clinton, relieves ISPs or web hosts of liability if one of their hosted sites violates copyright law. Under DMCA, as long as the ISP immediately removes the illegal content and in some cases terminates the offending sites account, then the ISP is not liable for the actions of the hosted site.
When YouTube’s CEO Chad Hurley was asked about YouTube’s copyright violations by New Jersey Republican, Rep. Mike Ferguson at a May 10th hearing on Capitol Hill, Hurley defended the site’s practices as in compliance with the Digital Millennium Copyright Act.
I believe, as others do, that YouTube is misapplying the DMCA. Under their interpretation the burden is the copyright holders alone. The copyright holder has to maintain constant vigilance against infringement. While this may be true to some degree, YouTube is also basically saying here that they believe no law is broken as long as they receive no notice that a specific video is violating copyright. What if the copyright holder is unaware of the infringement and does not ask for removal, is there then no liability?
The truth is, copyright law is broken as soon as one party uses the copyrighted work of another without permission. Further, the law is broken, not at the moment the copyright holder becomes aware of the infringement, the law is broken the moment the work was used. Trying to wrap this simple statement of copyright law into a provision of the DMCA, complicating it with so called “take-down notices” and filtering software, though beneficial to YouTube, is, in my opinion, not going to fly at a copyright infringement trial.
Google’s Kent Walker interprets the DMCA to say that the exchange of information over the Internet and the need to “protect Internet communications” (not quite sure what that means?) is equally as important as upholding the rights of copyright holders. I don’t believe the DMCA was made law for this reason. It sought to relieve ISPs of liability if, say, one of their sites uploaded a hacked version of Microsoft Word. I don’t think the legislators in 1998 ever envisioned the DMCA being used to offer coverage for a company that freely broadcasts videos that they have no permission to offer.
The New York Times reports that Myspace, faced with possible legal action, has begun offering filtering technology that will the help prevent copyrighted videos from being uploaded and re-uploaded to the site. The new technology is called “Take Down Stay Down” and was developed by Audible Magic.
The Times reports that “copyright owners [will] have access to Take Down Stay Down free of charge. If the social-networking service receives a takedown notice regarding a copyrighted clip hosted through its MySpace Videos hosting service, MySpace’s new feature will take a “digital fingerprint” of the video and add it to a copyright filter that blocks the content from being uploaded again. “(It’s) the ability to have a piece of content imprinted and put in a database so we can identify it,” said Vance Ikezoye, CEO of Audible Magic.”
Similar to YouTube’s upcoming “Claim Your Content” filtering technology, Myspace has now done something concrete to contend with the unauthorized uploading of copyrighted video by its members.
The first copyright infringement suit against YouTube is coming to trial. The case was brought last July by Robert Tur, a helicopter pilot/journalist known for his famous footage of O.J Simpson’s low-speed Ford Bronco chase in 1994 and the brick attack on Reginald Denny during the Los Angeles riot of 1992. It is exactly this footage that is at the heart of Mr. Tur’s lawsuit against YouTube. The suit alleges hundreds of copyright infringements and hundreds of illegal downloads through the YouTube site.
In an interesting development, Viacom and NBC filed a “friends-of-the-court” brief on May 4th asking the court to deny a motion filed by Google to dismiss Mr. Tur’s suit.
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