Advice From Attorney > Info From Internet > Nothing

Happy Friday dear readers! I had a post planned this week about the whole GamerGate debacle sweeping through Twitter like wildfire, but then my wife went into labor on Monday night and long story short, I'm a dad now and all my energy has been spent taking care of my wife and infant daughter Hannah.

But in the very little downtime I've had at the hospital, I found this chart online and thought I'd share it with you. It lays out in fairly clear terms when you can and cannot use someone else's copyrighted work. I initially hesitated to share this chart because while the information is generally correct, the law in reality is never this clear cut, and reducing it to a simple phrase or image can be a dangerous proposition. As I wrote last October:

I like to give away lots of free legal information on this blog because I think it’s important for artists to have a basic understanding about how the law interacts with them. I was once in your shoes. I’ve had my ideas stolen, my copyrights compromised, and been in situations where a little legal knowledge could have saved me from a jam or two. At the same time, you can’t cut lawyers entirely out of the equation simply because you possess that knowledge. Legal information without analysis is just raw data. It can’t give you advice or insight. It can’t examine your specific situation and provide you with synthesized options based on that data (i.e. just because you know the fair use factors doesn’t mean you know how to apply them). No two situations are the same and everyone’s needs will differ depending on a variety of unforeseeable factors. Only a properly trained lawyer familiar with your circumstances will be able to navigate that minefield.

This is a reasonable view and I stand by it. Law without anlysis is just data, and data without analysis is useless. That said, I'm sharing this chart anyway because some of you may not have the finances to hire a lawyer, and having some information is better than having none. In fact, I've whittled it down to a pretty simple formula.

Advice From Attorney > Info From Internet > Nothing

So hang onto this chart and use it when you need to, but just remember that this is only part of the story and it may not apply to your situation. Be careful out there and call me or another qualified attorney if you have any questions about what this all means.

I'll be back soon with my thoughts on GamerGate and some other recent news items. Until then, Cheers!

If Art Can Be Used To Harm Artists, What Are We Fighting For? A Brief Rant

With all the injustices going on in the world (Ferguson, Gaza, Ebola, Boko Haram, Net Neutrality, the Emmy's being held on a Monday night, etc.) it's hard to gin up outrage over anything else... but my parents didn't raise me to be a quitter.

Today's outrage comes courtesy of Ultra Records. Last month, Michelle Phan, a Youtube Makeup Tutorial Star (a profession that certainly did NOT exist ten years ago), was sued by Ultra Records for using the music of some of its artist in her videos; specifically, the music of Kaskade, Late Night Alumni, Deadmau5 and Haley. Ultra claims that Phan used over 50 songs without their permission, an allegation her spokesperson denies.

If the story stopped there, I would be plenty mad. Even if Phan did use the songs without permission, why is it necessary for a corporation to gang up on her and drag her into the legal system? Why are they suing her for $150K for each infringed work, the maximum statutory amount (totaling over $7 million in damages)? In most cases, a simple cease-and-desist would have been enough to resolve the issue. By suing her for that much money, Ultra isn’t even trying to disguise its greenlust. It’s the equivalent of going pheasant hunting with an elephant gun.

What pushes this case into the realm of the absurd is that Kaskade, one of the musicians Phan is accused of infringing, doesn’t support the lawsuit. In a series of tweets, he’s come out in support of Phan, stating that “[c]opyright law is a dinosaur, ill-suited for the landscape of today’s media.”

Maybe he’s right. It's ridiculous that someone like Phan could be held accountable for millions of dollars for infractions that amount to little more than being a music fan. And whether or not a court finds her liable, the mere fact of being dragged through this process can be debilitating for someone like her who is trying to find a modicum of success on her own. What can be changed? How can copyright law better address a world where media is much easier to use and reuse? I don't really have an answer, although I suspect that disincentivizing lawsuits and shortening copyright term limits are ways to get the ball rolling.

Look, I know it’s hard out there for independent record labels. Being in the business of art is difficult enough in the best of times, and we are not in the best of times. When you factor in illegal torrenting, uncountable revenue streams, and strong-arm tactics by larger companies, you don’t always think straight. And the result is that labels like Ultra and organizations like the RIAA end up brutalizing the little guy in a show of force that that far exceeds the initial infraction.

That’s why I spend so much time railing against these large corporate copyright holders on this blog. Copyright law was never meant to be used a bludgeon to ground out the petty infringers, although that’s how it’s often used. It was designed to make society better and, while we’re at it, throw a little patronage to creators of valuable intellectual property to show them that their toiling hasn’t gone unnoticed.

I know this doesn’t seem like a big problem in light of everything going on in the world right now, but I think it’s yet another clear indicator that our priorities in this country are far afield: focusing on the privilege of the big over the rights of the small. And if we don’t pay attention to this problem, it’ll just get pulverized by something bigger and louder. In times like these, I like to remind myself of a quote that’s often misattributed to Winston Churchill. And even though he didn’t say it, I think it perfectly sums up the battle before us. When Churchill was asked to cut arts funding in favour of the war effort, he simply replied "then what are we fighting for?"

My God! It's Full of Stars! The [Legal] Artist Enters The Terrible Twos

August 17th is a momentous day in the Kanaan household for two reasons. The first and most important: it's the anniversary of my first date with my wife. Thirteen years ago I went on my last first date with a woman who would later marry me and encourage me to follow that crazy idea I had one day to go to law school. I love you Steph!

The second is that today is the two year anniversary of the beginning of this blog. That's right! The [Legal] Artist™ is now a toddler: running around shrieking, smacking pots and pans together, drawing on the walls, and putting its finger into electrical sockets. I am shocked the blog made it this far. When I started it back in 2012, I had just taken the bar exam and was looking for something to kill time until I got a *real* job. I fully expected that my blog would bounce around within my peer group, never to be read by outsiders. Boy was I wrong. The longevity of this blog has everything to do with you, dear readers. You read my musings. You commented on them. You argued with me about my conclusions. You passed these posts around to other artists who really need the information. If it wasn't for you, I doubt I'd still be writing. So for that I thank you from the bottom of my heart.

I've reprinted below my favorite fourteen posts from the last year in no particular order (because I couldn't limit it to just ten). Feel free to take a spin through these and help me rack up some more page views!

• What My Wife’s Pregnancy And Derivative Works Have In Common. Steph and I are expecting our first child (we're two weeks away now!), and on top of using this forum to brag about our kick-ass pregnancy announcement, I was able to shoehorn in a discuss about derivative works... an issue that many artists face, but few know how to deal with.
• Illegal Graffiti Gets Copyright Protection Because It Is Still Art. Few people read it, but I think it's one of my favorite pieces. 
• How American Copyright Law Made Kim Jong-un Look Like A Fool: A Beginner’s Guide to the DMCA. Do you remember back in April how it looked like we were on the brink of war with North Korea? Neither do I. But this piece discusses that very issue in the context of a hilarious anti-American propaganda video that was thwarted by a DMCA takedown letter. Anyone legitimately concerned about Kim Jong-Un's regime should read this if you want a reality check about how incompetent it is.
• Star Wars, George Lucas, and How Copyright Term Limits Can Affect The Death of The Author. This was the equivalent of hunting pheasant and then shooting an elephant. By far the most read piece I wrote this year, which is strange because most of it deals with my conflicting opinions on the length of copyright terms. Proof positive that if you mention Star Wars, they will come.
• John Oliver Might Save Net Neutrality. Saving net neutrality is a big issue for me this year, and this post represents the best of my ability to get the word out there. Quick take-away: the FCC is trying to screw you over in favor of large telecoms. Don't stand for it.
• When The Movie(Maker)s Get It Right: How Colin Trevorrow Turned a Huge Plot Leak For Jurassic World Into a Major Branding Coup For Universal. This was fun to write and was also one of my most read articles. A truly inspiring bit of spin on the part of the makers of the next Jurassic Park film.
• My Take On The Great Monkey-Selfie Copyright Controversy. A monkey took a selfie. No wonder you all read this one. I also felt, weirdly, that this is the post where I finally found my voice as a writer. Better keep it up!
• Here’s My Take On the Tarantino v. Gawker Lawsuit Battle. This post took me over a month to write because every time I started, I ended up feeling differently about the situation. Ultimately, I think my final conclusion is a bit wishy-washy, but that's where I stand today. Eight months later and Tarantino has now fast-tracked the film. I wonder if it means he'll drop the lawsuit.
• When Rowling Met Galbraith: How An English Lawyer Broke The One Unbreakable Rule All Lawyers Must Follow. I always enjoy being able to cloak an important issue in something entertaining. Plus, it's an issue that not a lot of people know about.
• On Being Nice. This was the most important article I wrote all year and probably the most widely read and shared behind the Star Wars one. This is also a piece I reread often myself to remind myself just how awful we can be and how rarely it's necessary to be like that. The events of the last few days in Ferguson, MO have made me revisit this piece a few times.
• Reading Contracts Sucks But You Should Do It Anyway Or MTV Will Broadcast Your Address To A Million People. Just a fun piece that I consider one of my best written.
• Vince Gilligan Thinks Piracy Helped Breaking Bad, Turns Out He Might Be Right. It's important to remember that piracy is never justified, but it may also not be as big a deal as we all think. If Vince Gilligan doesn't sweat it, maybe we shouldn't either.
• Off With Their Heads! Graphic Content On Facebook Is Judged By A Disturbingly Uneven System. Facebook is never short for controversy and this piece I wrote last October highlights that. Yet another example of institutional misogyny at its finest. One of my favorite pieces all year and I think one that had the best response from all of you.
• When The Movies Get It Right: A Great Artist Makes A Bad Business Decision In A Great Film, a.k.a. The Curse Of Llewyn Davis. The closest I'll ever come to doing a straight-up movie review. Eight months later, this film still sticks with me because it perfectly illustrates what it's like to be an artist in our society. A great film with a tough message.

I look forward to making year three great, and I hope you continue reading and giving me your feedback to make this blog even better.

Excelsior!

The Trouble With International Copyright Infringement

You know how every couple of years movie studios will release two movies at the same time with similar premises (Tombstone and Wyatt Earp, Armageddon and Deep Impact, and this year's coup d'grace, Hercules and The Legend of Hercules)?* I recently experienced this very phenomenon in my law practice. Last week, two unrelated individuals came to me with the exact same issue: someone overseas was taking credit for their work and they wanted to know how they could stop it. I gave them several options:

• They could send a cease and desist letter directly to the infringer.
• They could send a DMCA takedown notice to the infringer's ISP and have the infringed work removed from the web, as this artist recently did.
• They could try to negotiate a licensing fee with the infringer and work out an agreement for the infringer to keep using the work while paying a fee to the artist (it's been my experience that most infringers don't realize they're infringing or don't realize there's anything wrong with it. Very rarely have I encountered someone who does it maliciously).
• They could sue (which, for reasons I mention below, can be problematic).

None of these options were well received and I don't blame them. The truth is, fighting back against copyright infringement is hard enough to do domestically. It's costly, time-consuming, and requires specific rules to be followed (i.e. registration of the work, filing in federal court, etc). When you add in the international aspect of the infringement, things get much tougher; unless you're super rich, it may not make sense to fight it.

Unlike domestic copyright law, international copyright law doesn’t really exist as a single monolithic area of practice. The U.S. Copyright Office even has a page explicitly telling you that “[t]here is no such thing as an 'international copyright.’" That's because copyright laws are determined by each individual country, meaning that copyrights created in one country will probably not enjoy the same rights and protections in others. That's how a work of art can be in the public domain in France, for example, but still be protected under copyright law in the U.S.

In order to normalize copyright protections across international borders, two international treaties were enacted, both of which the U.S. signed onto: The Berne Convention and the Universal Copyright Convention (UCC). Very generally, these two treaties are designed to allow artists the same level of protection regardless of which country the work originates from or which country the infringement takes place. The Berne Convention in particular allows artists to use the copyright laws of whichever country the infringement took place in, even if the work originated somewhere else. So if your work originated in Germany but was infringed in Lebanon, Lebanon would be required to treat your art under its copyright laws the same way it would treat art of Lebanese origins.

There are two hiccups with these treaties, however. First, they only apply to signatory countries. So if your work is infringed in Iran or Somalia, neither of which are signatories to the Berne Convention or the UCC, you're pretty much screwed. Second, even if your work is infringed in a member country, you're stuck filing your lawsuit in the U.S. unless you're rich and can afford to defend the copyright overseas, you have to file your claim in a U.S. court, and that means the infringing party probably won't fly to the U.S. to answer the lawsuit. The good news in that scenario is that you'll win a default judgment. The bad news is, so what? The infringer is still at large and is essentially under no obligation to stop infringing your work.

This is a tough area of law and I'm the first to admit that I don't know it well. If there are any attorneys out there who specialize in defending copyrights from international infringement and want to enlighten me, I'm happy to listen and learn.

* Wikipedia refers to this phenomenon as "Twin Films," but we can do better. I suggest "The Cinema Duplication Effect."

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?