My Take On The Great Monkey-Selfie Copyright Controversy

Happy Friday friends! No doubt you've all heard about the Monkey-Selfie heard 'round the world and I thought I'd weigh in briefly with my take. In 2011, nature photographer David Slater set up his camera in the Indonesian rain forest to photograph the indigenous fauna. When he turned his back for a moment, a black crested macaque took the camera and started snapping selfies. That photo (possibly the greatest selfie in history) was later placed up on Wikimedia Commons and Slater sued to have it taken down, claiming copyright infringement.

Wikipedia, the company behind Wikimedia Commons refused to remove it, however, because it argues that Slater doesn't own the copyright and thus cannot enforce his claim. According to Wikipedia, the monkey took the photo, and because a monkey cannot own and enforce a copyright, the photo is owned by no one and exists in the public domain. Slater of course disagrees, and has spent thousands fighting this case. He even claims that it's even starting to ruin his business.

The case has sparked an interesting discussion online and I've seen many arguments in favor of Slater (it was his camera equipment, he did all the legwork required to get the photo and pressing the shutter was only the final step in a long series of steps that he, and only he, participated in, etc.) and as many against (ownership of the equipment doesn't impute copyright ownership, Slater didn't press the shutter and that's all that matters, there was a lack of intent and creativity on Slater's part, etc.). There's a rundown at Slate from a bunch of law professors explaining why Slater will lose.

Far be it from me to quarrel with a law professor, but I think Slater will win this fight for one very simple reason: copyright laws in this country prioritize financial reward for creativity above other rights. Chris Sprigman, a law professor at New York University, says in the Slate article that, “copyright’s not there to reward people for their labor—it's to incentivize people to create new books or poems." While I agree with Professor Sprigman that the original intent of including copyright protection in the U.S. Constitution was for the benefit of society as a whole, I don't think the legislative history really supports that argument very well these days... especially as far as corporate copyright holders are concerned. The Mickey Mouse Act extending copyright term limits is a great example of Congress prioritizing economic rights over moral rights.

And boy oh boy, if Slater wins, there's a ton of money to be had in monkey selfies. When you consider the fact that the only party in this case that could be financially harmed would be the monkey (who, for obvious reasons, cannot represent himself or be represented in the case), there's really no downside in granting the copyright to Slater. All the rest is window-dressing that a court can easily rationalize away.

What do you think?

What My Wife's Pregnancy And Derivative Works Have In Common

Three weeks ago, Steph and I decided to publicly announce that we're expecting our first child (September 1st, dear readers! Mark your calendars). It was crucial to us that the announcement be memorable and fun, and almost immediately, Steph hit upon the idea that the announcement take the form of a movie poster. I'm a film buff after all, so I think she knew I couldn't say no. My initial concept was to do a horror-themed one sheet in the vein of Saw, but Steph didn't like the idea of equating our bundle of joy with murderous psychopathy, so we quickly settled on another well-worn trope: the bright, colorful, goofy posters for terrible Matthew McConaughey romantic comedies like Failure to Launch, or How to Lose a Guy in 10 Days. The poster would feature us against a white backdrop, Steph as the beautiful, glowing mother-to-be, while I acted the part of the hapless but gold-hearted man-child.

Concept in hand, we hired a friend and professional photographer, Alex Jones, to shoot the poster. I wanted this thing to be perfect and my camera gear - an iPhone 5 - wasn't exactly going to cut it. I also knew Alex could deliver what I was looking for with minimal direction; he did my headshots last year and those were universally praised. As expected, Alex's poster shots went above and beyond. And after two days of experimenting with layouts, fonts, and colors, here's what we came up with:

The announcement was a big hit with friends and family and it was also a creatively satisfying experience. So why am I telling you this? First, I'm proud of the way the poster came out and I just want to brag a little. Second, I thought the poster was a good example of the weird world of "derivative works."

A derivative work is an adaptation, translation, or modification of an existing copyrighted work. You see them all the time without even realizing it. A film based on a book, a photograph of a sculpture, a cover of a song, an English translation of a Russian novel, a collage of cat meme pictures... all of these are derivative works. And with the internet providing unlimited free access to all sorts of visual content, it's become pretty easy to build a career as a derivative work artist. As a result, I frequently get questions from collage artists and photographers asking where the line is when it comes to using the works of others in their own work.

Unfortunately for them, that line is pretty clear; the only person allowed to make a derivative work of the original is the owner of the original! It's codified in our copyright law as an exclusive right, which means that if you author a derivative work without permission of the copyright owner, you could actually be liable for copyright infringement (exception: photographing or painting exterior structures like buildings and sculptures for commercial gain are generally not copyright infringement if the structures are easily visible from a public place). Without that permission, your only recourse is the fair use doctrine, which I've been pretty vocal about being a lousy way to get out from under a copyright infringement claim.

To complicate matters further, if you author a derivative work, you will own the copyright in the parts of the work that are unique to you, even if the derivative was unauthorized. The original copyright, of course, will still remain with the owner. This weird overlap can lead to some sticky situations with both parties claiming some copyright interest in the work and neither being able to profit off the other's creation.

So looking at our faux-movie poster, how does this dynamic play out?

1. The copyright to the original photograph rests with the artist. Contractually, Alex maintains the rights to all his photos unless he conveys them away. The only right I possess is the right of non-commercial display (meaning I can show people the photo but I can't resell it).
2. The modifications I made to turn the photo into a poster do not constitute copyright infringement in this case because I had permission from Alex - I hired him specifically to carry out a preexisting vision - and because I'm not making any money from it. If Alex had not given me permission (either explicitly or implicitly), I would have been liable to him for copyright infringement.
3. While Alex owns the copyright to the photo, I own a copyright interest in the overlay changes I made to transform his photo into a movie poster. Yes I can actually claim a copyright in the layout, the wording choices, the color choices, and the overall aesthetic effect of the piece.

You'll notice that a big reason I'm safe is because I'm not making money off the poster. That, obviously, is no consolation to a working artist who needs to make money to survive. So my blanket piece of advice for artists who rely on the works of others to create their own: do your best to get permission, use older work that's in the public domain, or avoid using preexisting work altogether. And if you're not interested in that, please talk to a lawyer to see if your intended use is protected by fair use.

Ultimately, I think your time is better spent creating new work rather than defending yourself on an infringement claim because you used old work.

[Author's Note: I don't actually know Judd Apatow and A.O. Scott.]

The Maker of Candy Crush Saga Is Trying To Crush Your Ability To Use The Word Candy: A Trademark Misadventure

Can you trademark a single everyday word? Even if you know nothing about trademarks, the answer seems obvious: NO. After all, if you can trademark a single word, what’s to stop you from trademarking “foot” or “bike” or “candy” and then suing someone every time they used that word in a business setting? Such a reality would be absurd. Sadly, such a reality may be upon us because King, the maker of the hit game Candy Crush Saga, has just received approval from the United States Patent and Trademark Office (USPTO) to do just that.

King is trying to protect Candy Crush Saga, its big moneymaker, from a host of imitators who use the word “candy” in their titles. So it did what any reasonably copyright holder would do to protect its financial interest… it submitted an application to trademark the word “candy” in order to prevent other game developers from using it. I’m not being sarcastic here either; King’s response IS reasonable because these imitators have confused the general public into thinking that these other Candy games were just like Candy Crush Saga, maybe even made by King. And with the public assuming all these games came from the same manufacturer, they became less likely to download the real deal and more likely to download the imitation, siphoning profit from King. This kind of marketplace confusion is exactly the type of problem that trademarks were designed to prevent.

The problem here isn’t that King tried to trademark a single word. The problem is that the USPTO let it. This is troubling for two reasons. First, the USPTO approving such an application violates a basic tenet of trademark law: that a trademark must stand out, it must be distinct. According to the USPTO’s own guidelines:

Generic words... are never registrable or enforceable against third parties. Because generic words are the common, everyday name for goods and services and everyone has the right to use such terms to refer to their goods and services, they are not protectable. 

In this case, the word “candy” is too generic; it doesn’t immediately reference a game for most people. It refers instead to a sweet food substance that a man my age shouldn't enjoy as much as I do. If, on the other hand, King had tried to trademark a unique version of the word like “Kan-D” the mark might have been stronger and more worthy of protection.

The second reason King’s application is so troubling is that it’s bad policy. If anyone can trademark any word, they can then clog up the federal court system (where trademark disputes must be litigated) with needless lawsuit after needless lawsuit. King clearly has no intention of legally pursuing every business that uses the word “candy". They simply want to prevent other game developers from making games that reference Candy Crush Saga. But you can’t base policy on the intention of one party. You have to base policy on the potential actions of everyone affected. Frankly, other trademark owners may not be as nice as King when it comes to protecting their trademarks.

Luckily, the trademark process is a long and complication one. Here, the USPTO has not officially registered the mark (which is the final step that grants the trademark owner a wide swath of protective powers). They merely approved King’s application, which means now that anyone who could be hurt by the mark has 30 days to contest the mark and try to persuade the USPTO why trademarking a single generic word is a bad idea. And believe me, there will be a lot of pushback on this, from immediately affected parties and policy wonks.

So what possessed the USPTO to approve King’s application in the first place? Was it negligence? Does it signal a strange new shift in policy? Is it a long-term gambit designed to draw attention to single-word trademark applicants and whip the public into a frenzy, thereby dissuading future like-minded applicants? Who can say? In my estimation, King’s registration will probably fail because of the pushback its application is going to get. But if the mark survives the contest period and officially registers, you can bet this won’t be the end of the story. King may well have just saved Candy Crush Saga from imitators, but it also just painted a huge target on its back.

Anyone Who Argues Against Net Neutrality Is A Greedy Scumbag Who Wants To Take Your Money

I've always wanted to write a salacious hit-bait headline like that. Hopefully it worked and you're reading this. So now that I've gotten your attention, here's what I really want to say... anyone who argues against net neutrality is a greedy scumbag who wants to take your money.

This week, the D.C. Circuit Court of Appeals struck down the Federal Communication Commission’s (FCC) rule protecting net neutrality. And that’s unfortunate because net neutrality is a wonderful thing. For those who don’t know, net neutrality is the principle that all internet traffic should receive free and equal service, regardless of source or content. For the past decade, this is how the internet has functioned. It didn't matter if you were reading an article on a news website, sharing your vacation pics on Picasa, or streaming Raging Bull on Netflix, you could access any content you wanted and it was all treated the same.

Net neutrality is what allowed Google, Facebook, Netflix, and Amazon to get a foothold in the marketplace and become the juggernauts they are today. Realizing the goldmine to be had by controlling access to the internet, the telecoms started implementing policies to do just that. So in 2010, the FCC passed an Open Internet Order allowing it to regulate internet companies the same way it regulates telecoms and cable companies. The goal was to keep access to the ENTIRE internet equal and open to all.

Why Should You Care?

Unfortunately, Verizon hated this, so it sued the FCC, claiming that its Open Internet Order was an overreach of federal power. The D.C. court agreed. That means it’s now legal for internet providers to:

• Block any website they want for any reason,
• Charge ISPs more money to host streaming content, meaning your Netflix subscription is about to increase by orders of magnitude,
• Cap and throttle internet usage with impunity, charging higher fees for better broadband access.

So if Time Warner wanted, it could now block any website it's not affiliated with. Prefer to get your news from NBC, Fox, or NPR? Too bad. Time Warner owns CNN so that’s the only news outlet you might be able to get. Even if it decides not to block those websites outright, it can charge ISPs higher fees to carry those websites, or throttle the bandwidth given to those websites making them load much slower. HuffingtonPost has a pretty solid rundown about how the internet might look in the absence of net neutrality.

Ultimately, the death of net neutrality will mean that a few giant companies can discriminate against sites and content they don't like and funnel your internet experience in ways they deem appropriate (during oral arguments, Verizon’s attorney admitted they would be pursuing different economic schemes if not for the Open Internet Order). With the internet providers controlling content, fewer and fewer startups will be able to get a foothold in the market, significantly affecting innovation.

Net neutrality opponents have argued that so much traffic comes from "big video sites such as Netflix and YouTube, [that it] clogs up the system and imposes delays on everyone else. These companies should be paying their fair share." Which sounds eminently reasonable until you realize that Verizon made $2.23 billion in the third quarter of 2013 alone, so it's not exactly hurting for cash.

Pro-neutrality advocates have argued that there's plenty of bandwidth to go around and charging extra because of the nature of the content is "naked corporate greed." I agree, and so do Facebook, Google, Yahoo, Amazon, and Netflix, who favor net neutrality and stand to lose a lot of money if the telecoms get their wish.

How This Affects Artists

The loss of net neutrality is bad for everyone, but it’s especially bad for artists because art is frequently visual in nature, and unlike text, visual media requires a lot of bandwidth. If I’m a filmmaker and I put my latest film on YouTube, how likely are you to watch if it takes 10 minutes to load because you’re on a lower-tiered broadband plan which doesn’t include video streaming? If I write a song that contains explicit sexual content, how will I get anyone to listen if Comcast starts arbitrarily banning content it deems to be pornographic in nature?

The end of net neutrality becomes another way for large corporations to trample the rights of individual artists, something I’ve railed about on this site for a while now. Limiting the artist’s ability to display and promote his or her work not only affects the individual’s ability to make a living, but it affects society at large because it stifles creativity and limits innovation.

Why There’s Still Hope

The Atlantic's Kevin Werbach offers some credible arguments that, despite the ruling, there’s some hope for the future. First, even though the D.C. court’s ruling now eliminate the only rule preserving net neutrality, no rules even existed before 2010. And it’s not like we were plunged into an internet-restricted hellscape during that time. In fact, immediately following the court’s ruling, Verizon announced that there would be no changes to its services for customers.

Second, the court made it’s decision on a fairly limited technicality and gave the FCC a roadmap for fixing this whole mess. In a nutshell, if the FCC placed internet services into the same category as it did the telecom giants, it would be able to reinstate the Open Internet Order in some form. The fact that internet providers are not classified as "common carriers" like the telecoms is the main reason the rule was invalidated by the court. And throughout the opinion, the court repeatedly references the FCC’s “choice” or “decision” to classify internet providers differently than telecoms.

Given the Commission’s still-binding decision to classify broadband providers not as providers of “telecommunications services” but instead as providers of “information services,” see supra at 9–10, such treatment would run afoul of section 153(51): “A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”

Granted, reclassifying broadband providers as common carriers would require some legal jiu-jitsu by the FCC, and it’s unclear to me that the law would easily permit FCC Chairman Tom Wheeler to make that choice. Even if he could, he might not want to since it would probably result in a  political battle with congressional Republicans, who, it should be noted, absolutely hate net neutrality. Right now, the FCC is more likely to appeal the court’s ruling than reclassify. But reading the decision it became clear to me that the court was telling the FCC how to regain the upper hand. The decision repeatedly slaps down Verizon's claims and states explicitly that it “think[s] it quite reasonable to believe that Congress contemplated that the Commission would regulate [broadband internet service providers].”

Probably the best way to resolve the matter is to get Congress to pass pro-net neutrality legislation, which is obviously easier said than done. Luckily, there’s a lot of money in this fight and for once, it’s not a case of the big guys (i.e. big corporations) lobbying against the little guys (i.e. you). Sure, Verizon, Comcast, and Time Warner have a lot of money to lobby Congress. But you know who else has a lot of money to lobby Congress? Facebook. Google. Amazon. Yahoo. And they fucking love net neutrality.

Off With Their Heads! Graphic Content On Facebook Is Judged By A Disturbingly Uneven System

I've never seen a video of someone being decapitated. I don't think I could handle it, frankly. Whatever morbid curiosity I possess, there are limits to the lengths I'll go to satisfy it. But if your curiosity was harder to tame and you wanted to watch such a video, then you probably won't have to look very far. A few days ago, Facebook lifted a six month old ban on decapitation videos (the ban originated over a user-posted video that showed a Mexican woman beheaded for committing adultery). Facebook now allows users to share graphic videos of decapitations because, according to a Facebook rep:

When people share this type of graphic content, it is often to condemn it. If it is being shared for sadistic pleasure or to celebrate violence, Facebook removes it.

Condemnation or not, Facebook backpedaled today and removed the video that started the whole mess after a public outcry that included Facebook users and British Prime Minister David Cameron. Facebook insists, however, that it didn't change any of its policies, nor will it inherently prevent other violent videos from being posted in the future. Each video will be reviewed on a case by case basis. Turns out that public pressure was a good tool to use in this case because there really are no legal mechanisms that prevent Facebook from allowing users full reign to post whatever content they want. Here's why...

1. Facebook doesn't owe a contractual duty to protect its users from any kind of harm. In fact, Facebook states pretty clearly in its terms and policies that it does not

control or direct users' actions on Facebook and are not responsible for the content or information users transmit or share on Facebook. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook. We are not responsible for the conduct, whether online or offline, or any user of Facebook.

2. Even if Facebook didn't have contractual protection through the above disclaimer, any tort-based lawsuit against the social network would fail because federal law absolves internet service providers like Facebook from legal responsibility when obscene content is posted by their users. The Communications Decency Act (CDA), which was originally passed in 1996 to regulate pornography on the internet, states that

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

It's worth noting that the CDA also prevents users from suing Facebook if Facebook removes content it deems to be obscene or violent. This means that the CDA is a Teflon-coated Kevlar shielded brick wall sprayed in bullet repellant; Facebook is essentially lawsuit-proof.

So if Facebook can't be sued for letting users post the videos, why did it lift the ban after six months only to backtrack when the public freaked out? My guess is that in the absence of litigation, public opinion is all Facebook can rely on to drive its policies. And, until recently, the public has been largely silent on the issue of graphic, violent content. In other words, Facebook assumed that people didn't care about violent content, so it let users upload the videos until the outcry became impossible to ignore.

But this raises a question that I actually find more interesting. Why has Facebook's handling of violent content been so much less even than its handling of sexual content? (For those who don't know, Facebook has a blanket policy to remove all nude media from user accounts, including breastfeeding pictures.) Call me crazy, but I have a hard time understanding why a photo of a mother breastfeeding her child, even when her breast is fully exposed, is more offensive than a video showing some poor fellow having his head sawed off, even when the reason for posting that video is to criticize and condemn the act. And it's not like the public has been silent on this issue either. When I googled "Facebook bans nude pictures," I got 38 million results.

I personally don't have a problem with Facebook censoring any user content (the First Amendment, remember, only applies to government censorship... Facebook as a private party can censor as much as it wants), but I'd like for its censorship policies to at least have some semblance of uniformity, especially if it won't explain why a photo of a boob is somehow more onerous than a severed head, or why decapitation videos get individual reviews by the Facebook team, while nude pictures get a ban hammer. I hope that we can convince Facebook that sexual content deserve at least the same type of case-by-case scrutiny that it gives to decapitation porn. If not, I fear the puritanical society we may one day become.