Internet Copyright Wars: Do We Really Need Any More Laws?

In case you have been living in a cave, or just busy trying to make a buck in this economy - like me - let me cue you in on some Internet developments that everyone needs to be aware of. This isn't just going to affect those of us whose livelihood is integrally connected with I/P production and distribution.

Let me sum up a few of the latest developments, as I understand them. These are legislative and treaty developments, and the piracy issues that allegedly prompt them and make them necessary, all of which may gravely impact intellectual property rights for all of us:

1) SOPA and PIPA. These potentially very destructive bills would have allowed a broad range of takedown retaliations to those complaining of copyright infringement. So broad, that many entertainment companies (who would theoretically benefit from additional copyright policing) themselves worried that they wouldn't be able to pass muster and boycotted the bills by blacking out their websites or otherwise making statements against them. Fight for the Future, a non-profit defender of internet freedom, proclaimed victory on their site, with respect to the January 18th online protest (phone calls flooding into Washington, website blackouts including Wordpress and Wikipedia) shifted the opinion in DC, such that the bills were shelved for the time being, effective January 20th.

SOPA, aka the Stop Online Piracy Act, is the House of Representative's offering and PIPA, the so-called Protect Internet Privacy Act was courtesy of the Senate.

Both had provisions that would permit the blocking of websites that were accused of copyright infringement, and allow payments to be blocked to these sites as well, while granting immunity to the payment processors or ad networks that cut off sites with "reasonable" belief of infringement.

The non-profit Electronic Frontier Foundation points out the potential for abuse and bogus claims of infringement could seriously impact anyone with third party content, including social media sites like Facebook. All that would be required is for an IP rights holder to notify a payment processor like Visa/MC that there is an infringement, and that site's payment capabilities could be suspended. No actual legal action (i.e. court order) would be required for payments to be blocked. A series of claims and counter-claims are the only recourse.

In their own words: "In essence, Hollywood is tired of those pesky laws that help protect innovation, economic growth, and creativity rather than outmoded business models. So they are trying to rewrite the rules, regulate the Internet, and damn the consequences for the rest of us." Under current law, a copyright holder can request that infringing material be removed, but can't shut down an entire website (as SOPA/PIPA might have allowed).

In his story, "The Real Reasons Google Killed SOPA / PIPA," Forbes contributor Scott Cleland names Google as the chief architect and organizer of anti-SOPA/PIPA efforts on the internet. Their motivation is to protect their own interests which institutionalize internet piracy and - among other sins - minimize offenses by others by failing to penalize infringing sites with lower rankings, while lowering rankings for sites which compete with Google.

2) The MegaUpload takedown. What a crazy story. Hard to know what to make of that one. Like other famous takedown stories (Napster comes to mind), this is a case where file sharing led to what is alleged to be $500 million dollars in stolen revenue from pirated films, music and other I/P. Federal prosecutors cited the fact that the site was set up to specifically reward users who uploaded pirated content, and that requests from copyright holders to take down pirated material were ignored.

Whether the timing was geared to the SOPA and PIPA bill online boycotts, the day before, is hard to say.

The Electronic Frontier Foundation criticized the arrest of MegaUpload owner Kim Dotcom (that's his legally changed name) saying the arrests set a "a terrifying precedent. If the United States can seize a Dutch citizen in New Zealand over a copyright claim, what is next?" Hmm, not breaking the law, maybe? I guess our Feds used the fact that the company had servers in Virginia as its legal foot in the door to get indictments and enlist NZ authorities to make arrests.

The USA Today article which speculates that this takedown might somehow threaten internet commerce - as file sharing is a vital part of life on the net - is a bit overwrought, I think. The fact that MegaUpload was ignoring copyright complaints sets them apart from operations like YouTube, which takes them seriously and supplies plenty of warnings about using other peoples' I/P. Also, Kim Dotcom has an admitted background as a hacker and has prior convictions for manipulating stock prices and insider trading. All in all, not a choirboy.

3) Kim Dotcom starts to look almost heroic compared to what's on the horizon in the form of ACTA, the very veiled Anti-Counterfeiting Trade Agreement which is on its way to a vote in the EU Parliament.

Forbes contributor and blogger E.D. Kain describes this international treaty as having been largely been contrived behind closed doors (starting with the Bush administration, and now signed by Obama as of last year). It allegedly contains many of the same broad takedown provisions as SOPA and PIPA. Those bills were so punitive that even content owners protested it to Congress to block its passage, as mentioned above. Many European countries have signed ACTA already, although some nations strongly oppose it.

A petition to the European Parliament, opposing ACTA, has been initiated by AVAAZ, an international internet democracy advocate. When on considers the importance of the internet in movements like the Egypt protests, one begins to realize that this goes far beyond just I/P and copyright protection. In that situation, social media like Twitter and Facebook provided vital communication links that propelled the democratic protests in that country. Oppressive regimes would certainly have an interest in controlling or limiting that access.

Laws exist to protect I/P infringement, as voiced by many observers of the MegaUpload takedown. The rule of law prevailed. We don't necessarily need more law or regulation as much as innovation, as mentioned in the PCWorld coverage which included this quote from Techdirt, which points out that the apparent battle between the advancers of technology and the owners of content is not going to be solved by legislation: "As we've seen over and over again, the most successful (by far) 'attack' against piracy is awesome new platforms that give customers what they want, such as Spotify and Netflix."

In addition to I/P provisions, ACTA will also reportedly introduce new regulations about buying medicines online. In effect, it would enforce the patent protections of Big Pharma at the expense of making generics available to poor countries who might not have access to medicines at higher costs.

Laws like ACTA may be more about internet democracy and freedom of speech than simply protecting copyright, or forging international treaties. Another one in the works, the TPP (Trans Pacific Partnership Agreement) is of concern to the US, according to the Electronic Frontier Foundation. Like ACTA, the negotiations over the TPP are held in secret and without public scrutiny.

I think the takeaway from this past week is that we need to be very alert to new laws and treaties that seek to control the internet and "solve" content abuse and piracy problems by usurping all of our freedoms.

The Internet is too important to the commerce and freedom of speech of too many to be lax about opposing those that would try to restrict this vital pipeline of communication.

Some Love from China for Doc Filmmakers

Doc production is a labor of love, so we are always glad to see them get a little in return. This post is devoted to the doc film, with some news from far and near that might help them along their way a bit. The first is a story about a windfall for the traditional doc resulting from China's recent decision to crack down on reality TV and its perceived vulgarity.

The policy change, as told by Peter Hamilton, reality TV consultant and developer, from his blog DocumentaryTelevision.com, has shifted China TV programming in the direction of more content-driven fare.

Hamilton cites the recent NY Times story about the show that broke the camel's back and jump-started the new policy. Titled If You Are the One, it's a dating show with multiple female contestants being suited by a horde of male contestants, who boast of their assets. Complete with nude photos of one contestant circulating online, and a lawsuit where a former male contestant is trying to get a girl to return the BMW he gave her... it's not too hard to see how the show offends a number of cultural taboos in conservative China. Aside from "vulgarity," officials cite excessive materialism (what, that's a problem??). The show doesn't really set the tone for Chinese youth that the Chinese government is craving to portray. Interestingly, the producer/developer of that show was a Fremantle Media employee who was looking for Chinese production companies to buy the rights to develop foreign TV show ideas. We, in America, tend not to think of Fremantle (creator of popular giants like American Idol and America's Got Talent) as a purveyor of corruption.

Be that as it may the new government policy will, according to DocumentaryTelevision.com, leave a place in CCTV's programming for a surge in "less unhealthy" entertainments, i.e. documentaries along the lines of A&E or History Channel long-form shows. As a result, CCTV's (China Central Television, the predominant state-owned broadcaster) Documentary Channel is thriving.

In more local news, IDA (International Documentary Association) is sponsoring an educational Fair Use event as part of its "Doc U" program. In their own words "Doc U is the International Documentary Association's series of educational seminars and workshops for aspiring and experienced documentary filmmakers. Taught by artists and industry experts, participants receive vital training and insight on various topics including: fundraising, distribution, licensing, marketing, and business tactics."

The IDA is a great filmmaker resource, a membership-based non-profit that provides advocacy and various filmmaker services, including fiscal sponsorship (you can fundraise for your doc under their 501(c)(3) umbrella, saving you the paperwork hell of filing your own paperwork with the IRS, etc.), news, education and networking opportunities. They also administer annual grants totaling $75,000 to doc filmmakers, through their Pare Lorentz Documentary Fund.

40 Stunning (and PD) Old Photos

Over the last year, I've had many occasions to research old, public domain photos. There are many sources of these - including the National Archives - which has a number of collections, some of which are downloadable in high-res, digital format.

Recently, someone shared this link to Top Design Mag's feature on 40 Stunning Old Photos, which I wanted to pass on.

Most of these are pre-1923 and can be re-published freely. Enjoy!

Donald Rumsfeld, Spicy Peanuts and Christmas Miracles

This is one of those stories that is just begging for an avalanche of bad puns (are there any other kind?) and the authors of this Time article - about how Donald Rumsfeld's picture ended up on Tyrrell's spicy peanuts - have not held back. ("Whichever way you look at it, it's nuts.")

The one way they haven't looked at is from a publicity rights perspective.

Let's just say, to continue the double entendre, it is a Christmas miracle that someone didn't get sued or at least upbraided for this commercial use of a photograph of the former Chief of Staff on the peanut package by this cheeky UK snack company. It appears that their marketing director thought that if he licensed the image from Getty, he'd be all set. He says the use of Rumsfeld was coincidental, and one wonders if he even realized it was Rumsfeld in the photo from Getty (which limits the use of the photos it licenses, often restricting or charging a lot more for commercial uses, presumably to include royalty payments.)

I took a look at that particular image on Getty's site (wasn't hard to find, it was the only result under "Donald Rumsfeld and Geisha") - and noted this restriction: This image has no model or property release. Any commercial use requires additional clearance. "

Needless to say, if you read the Time article, nobody in Rumsfeld's camp (to say nothing of the Geisha) knew about this use. I guess Rumsfeld had a sense of humor...or vanity about the whole thing, and didn't press matters with Tyrrell or Getty... and the photographer may have already sacrificed any copyright interest he had as a government employee. All I'm saying is there's a whole lotta stuff that could have blown up on this one!

Merry Christmas Tyrrell, and Getty... I wouldn't try this at home!

Justin Bieber and YouTube: Modern Day David and Goliath?

If you have been following it, there's been a long tale in the making about Justin Bieber's rise to fame on the pages of YouTube.... and recently some hype about a new bill that could send him to jail for uploading video covers of other artists' songs.

Most of us know that Biber got discovered on YouTube, after posting performances of himself covering various artist's tunes, all while he was competing in a Canadian talent show. The story goes that the uploads were originally his way of letting distant family members see him perform, since they weren't able to make it in person.

The precocious and talented kid singer got noticed by some producers (Justin Timberlake among them) and eventually got a record deal and a catapult to fame out of it.

In recent months, Bieber has become a bit of an emblem for those who are fighting for net copyright freedom. A non-profit called Fight for the Future has been mounting a "Free Bieber" campaign that looks to be a bit of a sham, in light of the fact that what it criminalizes isn't what Bieber has been doing.

What is Fight for the Future's real motive with their Free Bieber gambit? They are most likely using his example in trying to being attention to a new bill afoot, S. 978, which will criminalize performing others' songs without permission. That, however, will not materially change what's been happening on YouTube for years now. According to legal analysis (see the Copyhype blog) those artists aren't, in fact, performing in the sense that will be prohibited by law. What they are doing is recording and uploading other artists' compositions without licensing them (a fine point of difference by a difference nonetheless).

According to law, it is YouTube that is doing the "performing." Apparently, performing society payments are already made by YouTube out of their revenues from advertising and whatever ways they make their money these days.

On the other hand, strictly speaking, artists should license the songs they cover from the publishers of the songs they upload. And they don't. And no one is enforcing that they do. Why? In all likelihood, because the artists who post their videos on YouTube, singing in their bedrooms and strumming their guitars - aren't making a dime from these recordings and the publishers know it. No one's getting rich.

Well, except maybe Justin Bieber.

And, as the Hollywood Reporter tells it, Bieber won't go to jail for posting videos on YouTube, any more than any other kid uploading bedroom performances of hit songs.

There are several layers of rights needed to use another's song, in particular the synch rights which allow an artist to "synchronize" a composition written by another into a new filmed performance. These are also referred to as the publishing rights for the song.

But, as mentioned, for whatever reasons, publishers have not been aggressively getting artists to take down their videos with uncleared synch rights. And that includes Justin Bieber.

As the Electronic Frontier Foundation (internet rights advocate) points out: "As far as we know, no typical YouTube user has ever been sued by a major entertainment industry company for uploading a video. We have heard of a couple special cases, involving pre-release content leaked by industry insiders, but those aren’t typical YouTube users. And there have probably been a few lawsuits brought by aggressive individual copyright trolls. But no lawsuits against YouTubers by Hollywood studios or major record labels. That’s right — millions of videos have been posted to YouTube, hundreds of thousands taken down by major media companies, but those companies have not brought lawsuits against YouTube users."

Bieber and millions of others have infringed copyrights in posting videos, but no one is going to jail. And no one, not even Bieber apparently, is getting sued for copyright infringement!

As Copyhype goes on to point out, "Given that over 48 hours of video are uploaded to YouTube every minute, the percentage of people who face liability for copyright infringement on the site is effectively zero."

The odds are in favor of the aspiring Biebers of the world, who can safely croon and strum and upload away, without fear of lawsuits or criminal charges, or much more than a takedown notice (and even that's not likely for the typical user). The sheer impossibility and impracticality and futility of enforcing copyrights on casual users is.... a beautiful thing.

If Bieber took down Goliath, it's not YouTube at all, but more likely he demonstrated that one can still get around the lock hold that the publishing world has on music. You can still sing songs for your friends and family and upload them and build a rep for yourself. And the new law won't change that.

Steal This Blog

In 1970, famous Yippie, anarchist, anti-capitalist and overall rebel Abbie Hoffman published a manifesto on sticking it to the man, entitled Steal This Book. As described on Amazon: "A driving force behind the social revolution of the 1960s and 1970s, Hoffman inspired a generation to challenge the status quo. Meant as a practical guide for the aspiring hippie, Steal This Book...became a cult classic with over 200,000 copies sold. Outrageously illustrated by R. Crumb, it nevertheless conveys a serious message to all would-be revolutionaries: You don't have to take it anymore."

The internet and new generations of artists who are challenging large corporate control of copyright... are in fact changing the attitude of the public and the courts about the protections of free expression built into copyright law.

As this recent story in the Kansas City Star points out, the changing legal landscape is making it easier for producers who are genuinely creating new and transformative works, to sample and use the copyrighted works of others within the framework of Fair Use.

Or, in the words of Hoffman, "You don't have to take it anymore."

Sample this! Authors say use of fair use is growing...

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This post is dedicated to the memory of my dear friend and clearance colleague, Sue Brownstein, who had a deep sense of social justice... and would appreciate this.

Copyright Infringement: What It Is... What it Ain't

"The industry custom of obtaining 'clearance' establishes nothing other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits."

- Polydoros v. 20th Century Fox Film Corp

If there's an issue which is often confused by producers, actors, and the general public...it's copyright vs. trademark.

The point being: producers clear a lot of stuff they don't need to through - among other things - ignorance or false assumptions regarding their First Amendment rights of expression, the Fair Use principles which follow from the Constitution, and a failure to differentiate between Copyright and Trademark issues.

This costs productions money, time, and establishes a culture where clearances become the rule... rather than following from an understanding of fundamental rights of expression, and correct analysis of risk.

So let us differentiate a bit here. I was fortunate to attend a special seminar on Fair Use principles for CLEAR, Inc. (association of research and clearance pros) here in LA, with special guest Alonzo (Al) Wickers, of Davis Wright Tremaine. As an entertainment lawyer who consults on a variety of hit TV shows and high profile film projects, Mr. Wickers has his pulse on a lot of the copyright and trademark issues of greatest interest to producers and their business and support staff. I want to sum up a few of the salient points from that seminar (and add a few of my own).

Copyright is a Constitutionally granted right, which flows from Article 1, Section 8: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

What's copyrightable:

Writings

Visual art

Music

Choreography

AV works

Maps

Not copyrightable:

Ideas

Single words

Short phrases

Corporate logos (trademark)

The above tells you not only what you need to "clear," therefore, but what you don't.

Where it comes to Fair Use in copyright, there are no bright line tests (eg "less than 10 seconds"). There must be a case by case assessment.

Some of the principles involved are:

Purpose of use - Commentary, criticism, parody, reporting

Nature of work -

Published vs. unpublished - unpublished have greater protection because creator is supposed to have right to first publish

Creative vs. factual - anything that took creative effort gets greater protection

Amount used

Effect on market

A great website for Fair Use is the one created by the American University Center for Social Media, which relates to documentary fillmmaking, primarily. Nonetheless, their analysis points and codes of best practices apply to all Fair Use arguments, and it's a great resource. I believe that most producers would do well to spend some time studying the general principles of Fair Use, particularly in light of some recent cases where it's been successfully and poorly argued - one would think they would know better. (Carol Burnett v. 20th C Fox case, the former...Hangover 2, the latter... both cited in this blog).

Bottom line: You do your analysis and decide whether you have a Fair Use argument before you decide to reach out, or not, to seek a permission or license.

Trademark protection is established primarily by the Lanham Act in the US, "a piece of legislation that contains the federal statutes of trademark law. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising."

There are some important distinctions between copyright and trademark violations, from a producer standpoint. A key one is that copyright violations are subject to injunctive relief by courts. That means that a big picture can be shut down, fail to open or release to DVD as planned by a court action granting that relief to a plaintiff.

It may not happen often, but it can happen. See the recent "Hangover 2" story on this blog for an example of threatened injunction… needless to say it makes the producer position for negotiation a bit strained when the possibility of an injunction is hanging over the studio's head.

Conversely, trademarks appear on products to be seen…. they are a protection for the owner, but they are also a perpetual ad for its products: the Nike swish, the Starbucks logo, the apple of Apple proclaim the product as what it is. And further, "buy me!"

A key factor in using them in expressive works, then, is whether they appear for their intended use or one that is not intended. Thus, fair uses of products in TV and film would include such things as:

newspaper or mag titles in dialog

cars in car chases

clothing, shoes

appliances, electronics

ipods, ipads

As long as only enough of the mark is shown as is reasonably necessary (or incidental) to establish that it is a "coke", for example, and that no implication of sponsorship or endorsement is present… such uses are protected by the First Amendment in expressive works (NOT commercial uses, like T-shirts or other merchandise).

Tarnishment of the mark - using it in a defamatory way, or one which creates an unfavorable association, is one way to dilute a trademark. Blurring a mark, causing it to lose its unique identification, is another way to dilute it.

The Trademark dilution act of 2006 - limits dilution to primarily commercial cases, not expressive works.

Hence, this artistic commentary on "Barbie" - Stir Fry Barbie - is protected, as an expressive work.

Furthermore, exemptions exist (as in all Fair Use) for parody, comment, criticism. In the case of Carol Burnett v. 20th C Fox, the plaintiffs alleged not just copyright infringement but a violation of the Lanham Act, as regards trademark infringement. (Burnett lost):

"An episode of the TV cartoon "Family Guy" made fun of comedian Carol Burnett's image and signature characters from her 1960's comedy variety show. In Carol Burnett v. Twentieth Century Fox, the court ruled that the show's use was fair, in part because the "Family Guy" episode was designed to parody Burnett as a public figure, using a relatively small percentage of copyrighted material, and would not substitute for the original in any market."

The case was dismissed under the "Anti-SLAPP" laws here in California: "A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition."

Here's a summary of the case from the California Anti-SLAPP Project's website: "In response to this Family Guy clip, plaintiffs Carol Burnett and Whacko, Inc., filed this suit against defendant Fox for: (1) copyright infringement; (2) violation of the Lanham Act, 15 U.S.C. § 1125; (3) violation of California’s statutory right of publicity, Civil Code § 3344; and (4) common law misappropriation of name and likeness. Defendant now moves to dismiss plaintiffs’ claims. Defendant also brings a special motion to strike Burnett’s supplemental state law (claims) under California’s anti-SLAPP statute, California Code of Civil Procedure § 425.16." Whacko, indeed, as it turns out.

Product Placement has changed the trademark landscape to a degree, because the public (and producers, and trademark owners) now may grow to assume that the casual appearance of a product implies an endorsement. This might relate back to the over-clearance argument which opened this discussion. It has its downside.

However, ad sales departments of networks are often far more conserned about keeping national brands out of its shows (to avoid alienating potential advertisers) than Legal departments at the same networks. Again, these trademark issues have more to do with relationships and not stepping on toes than on actual legal infringement.

Producers tend to know who the really obnoxious trademark holders are, and tread carefully.

Circling back to the quote from Polydoros v. 20th Century Fox Film Corp:

"The industry custom of obtaining 'clearance' establishes nothing other than the unfortunate reality that many filmmakers may deem it wise to pay a small sum up front for a written consent to avoid later having to spend a small fortune to defend unmeritorious lawsuits."

As long as Wisdom exists, then….one can reasonably expect that Clearances will never go away, nor should they. Having a diligently laid paper trail, knowing the comfort for risk of the production team or studio or distributor on the project, and having a savvy legal and clearance team - all can save a lot of cost, unnecessary clearances, and a possible injunction that would be the nightmare no producer wants to ever experience.

Producers, ignorant of their rights, who then "clear everything..." help establish a climate where everyone expects everything to be cleared, always.... driving up costs.

Real wisdom (as opposed to acting out of fear, or superstition) in clearances would begin with an understanding of some of the basic principles which govern our expressive rights. Knowing the difference between Copyright and Trademark infringement is a good place to start with such wisdom, and I hope this blog article helps shed some light therein.

Tattoo Mania! Don't We Own The Artwork On Our Bodies?

Most of us have followed the Hangover 2 / Tattoo saga from the highly publicized efforts to prevent the movie's opening this past May. This summer saw the resolution of the very high-profile lawsuit against Warrner Bros over the film's depiction of a tattoo intended to parody Mike Tyson's tribal facial tattoo.

For many in the entertainment industry, this settled case now leaves new questions about production of feature films, reality TV, commercials - any of which might feature talent with tattoos. How zealous do we now have to be in clearing these works of body art? And how careful do celebrities or actors or.. anyone.. have to be in securing the copyright for their tattoos - if they can - when they get the work done?

The case also no doubt left many producers a little shakier about the parody defense, and Fair Use in general. Relying on that kind of defense while boldly ripping off an artist's work was a bit naive, since the film was parodying a situation or a character perhaps more than an actual work of art... if you follow that logic. When Weird Al sings "Eat It" to the tune of Michael Jackson's "Beat It," there is no question that he's parodying a song. This film really copies an artist's work, almost line for line, to make a joke. A subtle difference but a difference nonetheless. And so, the joke was on them in the end.

It possibly came as a big surprise to a lot of people, not the least of whom were the Warner film producers, that a tattoo artist could claim copyright protection. But the suit was taken very seriously by the judge of the federal court which, although it denied the artist's request for an injunction (to prevent distribution and exhibition of the film) did "see merit" in the case.

This case is interesting in that it illustrates an important (and often confusing) point of copyright law: One can own an original work of art and yet not have the right to sell copies or reproductions of it.

S. Victor Whitmill, the tattoo artist who gave Tyson the original tattoo in Vegas in 2003, claimed that he owned the copyright on the original tattoo on Tyson's face. The artist claimed that he had an agreement with Tyson that Whitmill would retain the rights to the tattoo. He supposedly registered the work for copyright in April, 2011 (shortly before filing the lawsuit). Whether the agreement with Tyson was an oral or implied agreement, or one that was committed to writing, it doesn't matter much in copyright law. Nor is a formal registration required, although it probably helps to bolster the artist's case.

According to copyright law, as expressed in this US Copyright Office FAQ: "Your work is under copyright protection the moment it is created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device." So, you paint it... it's in a tangible form, it is protected.

I got a call, recently, from studio colleagues who are working on an anthology of drawings and illustrations. They were surprised to find that they might have to approach an artist for permission to use his artwork in their book, even though the owner of the illustration gave them permission. If you think it through, you can see some logic for this. If an artist does a painting, and sells the original, he/she can still sell lithographs or other numbered copies of the original, and would be the sole person to retain that right, by law, unless it was transferred by a written agreement.

Both instances - tattoo and oil painting - illustrate the same principle of copyright law which is, quite literally, the right to make copies of and distribute a protected work. Giving up the original art doesn't necessarily surrender the right to copy it, or "copyright" that is automatically awarded to creators of original works, by law.

According to a May article in the NY Times, there are a few precedents for such tattoo lawsuits as the Hangover disaster: "David Beckham and his favorite tattooist, Louis Molloy, had a public dispute that year over his plan to highlight them in an advertisement. The feud culminated in an interview with Mr. Molloy in The Daily Mirror that ran under the headline - I Own Beck’s Tattoo .. and I’ll Sue.”

Predictably, Warners sought to invoke a Fair Use argument. They argued that the use was parody, and the inability to make fun of this in its depiction would stifle the creativity of the producers. Fair Use involves a number of factors, including how much the protected work is featured in the derivative work, whether it truly is parody, commercial benefit derived from the use of the work, and... most importantly... the question of whether something new was created using the derivative work, or if the original was merely copied. Since some of these arguments can be subject to counter-argument (as we've seen here) and since most producers don't want to end up in court, these works are often either cleared and paid for up front to avoid later claims (Warners wishes that it had taken that course, you can bet), or the claims are settled out of court.

Why didn't they clear it? This is a new area of law, and it is evident that no one thought that it was going to get to this point. They must have really though the Fair Use argument was strong enough that there wouldn't be a challenge to the use. Besides, it's only a tattoo, right? 20/20 hindsight shows that they were sadly mistaken in whatever logic they exercised, and that is why the people that do clearances have jobs (yay!) Although, a script clearance person may have lost theirs, over this particular fiasco. I'd like to think that this got flagged and the producers chose to charge ahead, anyway. That has happened to me more than once, sometimes it works out OK for the producer, and sometimes not. Most cautious producers would rather clear than risk a lawsuit, particularly if it can be cleared easily and for a reasonable license fee. In many cases it's easier to clear it, certainly easier than adhering to a point of law that might be questionable. (End of self-promotion).

I will add that there are clear-cut cases of Fair Use where producers of derivative works should obviously exercise their rights, notable ones being the Obama artwork that was itself the subject of a lawsuit, and the Wikipedia / FBI face-off - both discussed earlier in this blog. In any event, one must do a thorough analysis and make the best decision given one's understanding of the law, and the realities of clearing or not clearing the work. I also constantly refer people to the Center for Social Media website which, although it's really geared to documentary filmmakers, still gives a lot of understanding of Fair Use principles for any producer.

Celebrities and others who may anticipate needing the copyrights to their tattoos may think twice about paying for and getting a release of the rights when they get their tattoos done. And it might become customary for these kinds of written agreements to go into use, where the artist is granting all of the rights to the client, and warranting that it's an original work, and perhaps even indemnifying the actor against any claims. Of course, that might mean some larger fees to the artist as well.

Matt Damon Schools Wall Street, and the White House... in "Inside Job"

With the DVD release of Inside Job, the Oscar-winning doc that clearly lays out the players and the scheme that led to the 2008 market crash and massive bank failure, Hollywood sends a message to Wall Street, and the White House.

That film, narrated by Matt Damon, gives new insight into Obama’s jab at Damon in the President's recent speech at the White House Correspondents Dinner. The address, loaded with jokes about the birth certificate circus, pointedly addressed to Trump (who was in the audience) also landed a barb at Damon: “I've even let down my key core constituency: movie stars. Just the other day, Matt Damon -- I love Matt Damon, love the guy -- Matt Damon said he was disappointed in my performance," Obama told the crowd. His retort: "Well, Matt, I just saw The Adjustment Bureau, so...right back atcha, buddy."

But after seeing Inside Job, viewers will be doubtful that it's The Adjustment Bureau that has galled the President.

The actor’s comment on CNN that “Obama has misinterpreted his mandate” takes on a new meaning with the broad release of this tell-all doc. In fact, after seeing the film, one wonders if Matt was softening his real sentiments. Indeed, producer Charles Ferguson began his Academy Award acceptance speech with the comment that three years after the world’s worst financial meltdown, “not a single financial executive has gone to jail.”

Compare that to the S&L disaster in the late 80s when 1,500 bankers went to jail.

But, beyond that, the White House has given jobs to some of the most egregious perpetrators of the banking disaster – and placed or retained some in regulatory positions for which they have clearly demonstrated their unfitness; the film leaves no doubt about that.

Damon, a strong Obama supporter, has appeared remorseful at having to relinquish his hope. With Inside Job, we get a very skillful telling of an economic story that is really, in the final analysis, a bank heist, as Ferguson tells us: "It is not so technical that average people cannot understand it. It was simple. It was a bank robbery - not committed by someone who walked into the bank but by the president of the bank."

It is hard to watch this doc and not to hope – more than anything else - for some criminal indictments.

Handshake Deals Are Alive And Well In Hollywood

Handshake deals, oral or verbal agreements. Call them what you will, they still hold weight in Hollywood.

A show developer has won a $4 million claim against A&E...again! this time in appeals court. The high court upheld the South Carolina court award to the plaintiff who pitched and developed the hit reality show Flip This House (remember the housing bubble? yeah, back then).

Apparently Richard Davis, a real estate broker and house-flipper, brought the show idea to A&E, with an oral agreement to split the show profits 50-50 in exchange for Davis developing and appearing on the show, even though the compensation wasn't nailed down in writing at that time. Davis appeared in the first season of the show but left as a result of the compensation dispute to develop a competing show for TLC.

The S.C. court recognized the validity of the original oral agreement, and this week that decision was upheld by the higher court.

THR makes the point that this should be a lesson to producers to memorialize their agreements with followup documentation. Indeed. I draw a slightly different conclusion, namely that producers should not assume that their deal partners will fail to remember, have supporting evidence for or to enforce their oral agreements with producers.

The oral agreement has an interesting history in Hollywood. In spite of the famed Samuel Goldwyn line that "an oral agreement isn't worth the paper it's printed on," the handshake deal is still a valid contract and its breach can still be taken seriously by courts.

Erickson Law, on its blog, cites the case of Lisa Kudrow and her verbal deal with former manager Scott Davis who sued for unpaid commissions based on that agreement. The court did take the agreement as valid, and the case was appealed on other issues. As for how to prove that such a deal was in place, Erickson attorney Erin O'Kane suggests "there are several ways to do this including having witnesses to the agreement, showing that the parties acted in reliance of the terms of the agreement, and providing evidence that supports the existence of the agreement."

Of course, no discussion of this subject in recent history would be complete without telling the tale of the the case that sent shock-waves through the entertainment world, the famous Basinger vs. Main Line case, settled in 1993. In that case, Kim Basinger was ordered to pay $8.9 million to Main Line Pictures for breach of her oral agreement to appear in “Boxing Helena,” a picture on Main Line’s slate. In that case, Basinger switched agencies after getting the script and agreeing to the role. The new agent at ICM, who stood to make no commission on the deal, advised her against the role. Main Line alleged that was the motive for the advice from ICM, and claimed that the agent induced the actress to breach her agreement. Both ICM and Basinger got sued, although the judge later dropped ICM from the suit.

celebrity profile

The apparent reason that ICM got off the hook, based on motions from the lawyer who rep’d both ICM and Basinger, was that the advice from the agent was in her best interest and protected by law. (However bad that advice turned out to be, I might add).

The Variety article from that time discusses various motives on the part of the agency, and tactics such as “script control” in order to have a rationale for backing out. However, Main Line had followed up with a deal memo (so they did follow THR’s admonition).

But, deal memo or none, as evidenced by the recent judgment with the A&E house-flipper deal, the oral agreement by itself holds weight.

I’ve had my own share of nerve-wracking experiences with talent backing out of deals that were made by their Rep’s, notably while working on Disney's "Cinemagique" starring Martin Short, produced initially for the Paris theme park. Cinemagique involved a host stepping into and interacting with the movie characters in a collage of clips, and as such involved moral rights in Europe, since we would be altering the original footage (see the Oprah blog entry, below). It was a complicated clearance mess. When one of the biggest stars of the time (or his rep) took back a permission they had given us months before, shortly before our launch date, I found myself essentially being deposed by a VP of Legal for the studio. I had just barely enough info in my file to document who said what, when. That harrowing experience really made me a believer in the confirming letter (or e-mail), itself a form of deal memo, to affirm the oral agreement made in a phone conversation.

With the advent of email, I’d say that this happens less. Rather than a phone conversation, these agreements are more commonly made in an email before the agreement is formally signed. That email traffic, saved, is a pretty good safeguard.

Of course, there is nothing like the signed agreement in hand. But many TV shows would never be produced, let alone make it to air if a signed agreement had to be in hand. Deal memorandums, follow-up confirmations (even a polite thank you email worded along the lines of “so happy to hear your client has agreed to this use”) can go a long way. These provide the electronic paper trail that can be used in case of a dispute, and which will also serve to protect the producer in the event of a lawsuit or an E&O claim.

One place an oral agreement is going to do you no good is in the case of a minor. Even written contracts have been disaffirmed by minor actors, exemplified by the Vanessa Hudgens (of High School Musical fame) case with former lawyer Brian Schall. The star claimed that $150,000 in wages to the lawyer weren't payable because the contract was signed when she was 16. Schall sued in 2007 and the case was settled in 2009.

Brian Wilson, of the Beach Boys (pictured here in a publicity photo of the band, rear center) sued to reclaim his publishing which was sold by father and former band manager, Murry Wilson, for $700,000 to Irving Music in 1969. It's quite a wild story as Wilson had a long string of problems with drugs and the mental difficulties undoubtedly brought on by them. His relationship with the father was very contentious as well, with claims of abuse. Pertinent to this discussion is this, according to the LA Times article at the time, "The lawsuit claims that in 1962 Brian and Murry Wilson agreed orally to divide profits from their new publishing company, called Sea of Tunes, and that between 1962 and 1969, the son wrote or co-wrote more than 100 songs for the company. But, the court filing claims, since Brian was underage and there was no court approval of the oral agreement, the contract was not legal."

Although Wilson didn't recover his copyrights, he was awarded $25 in damages and unpaid royalties.

Oprah: Don’t Try This In Paris!

A federal judge in Pennsylvania has tossed out a book author's $100 million lawsuit against Oprah Winfrey for violating the copyright in the political booklet, How America Elects Her Presidents.

The judge in this case ruled that the use of questions from the book (which Oprah supposedly read out loud in a quiz session with a whiz kid first grader, who got the answers right... btw) didn’t constitute infringement.

Why?

The copyrightable thing was the compilation, the arrangement of the facts in the book. But apparently, the author didn’t copyright the book as a compilation. The facts, themselves, weren’t copyrightable and the judge agreed that the facts were “not original.”

(Oprah is pictured above in a publicity photo for her OWN cable network.)

In a copyright infringement case from France involving Carla Bruni, chanteuse and French first lady, the outcome may be different. Bruni is suing a French newspaper for publishing an audio clip of her performance of a classic French song, in connection with the songwriter's recent death. Certainly a topical use.

However, that country and many European nations have stronger protections for artists, known as “moral rights.”

According to Wikipedia: “Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work.”

Moral rights were first recognized in France and Germany and were later included in the Berne Convention in 1928. These rights respect the creator’s rights to attribution, anonymity, and the maintaining of the integrity of the work.

Apparently the audio clip that was posted by Midi Libre was a “draft version” of the song. While that kind of use might be protected as a news item and “fair use” according to US law, the enhanced protections for artists in France make Bruni’s case a plausible one.

I would include a photo of her here, but I'm scared.

:(

Photo Libaries Cash In On Government Works

While doing some research about government-owned photos, I came across an interesting blog entry from The Online Photographer. Apparently, Getty Images (and other big image banks) license out images that they don't actually own any rights to, but simply obtained from the National Archives:

"It seems that Getty Images learned a few years ago that they could buy 4x5 negatives of images from the US National Archives for $5 each. They bought thousands. Now they are selling these same images through their stock agency and claiming copyright on them. The vast majority of the images in the National Archives were taken by government employees and are public domain."

And, as one blog reader comments:

"Getty Images and Corbis both license public domain content from the National Archives, Library of Congress and other government sources and have done for years. The agencies provide PD content on their sites with enhanced keywording and quick availablilty for professional usage. The Libray of Congress and the National Archives will provide images but not licenses."

There are several distinctions to be made here.

First of all, some photo and footage archives provide master copies of the images in their libraries, but do not claim to have all the rights (or any rights) to license the photography. They aren't the copyright holder, nor do they represent them. They are only a source for the masters.

Although they should tell you this, it is also your responsibility - ultimately - to find out if they are licensing this image to you and indemnifying you for any possible claims regarding the rights to the photography. (One simple way to do this is to read their license language, another is to have them sign your license to ensure you have the coverage that you need). It sounds like Getty is doing their due diligence, discovering that these photos are in the public domain (as the overwhelming majority are) and then providing not only a high-resolution digital image, but also a license which indemnifies the licensee.

Another copyright fine point to consider in the area of Government Works is when they are, or are not, eligible for copyright protection.

According to US Law, "Copyright protection... is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."

That means that a work created by the U.S. government or its employees cannot receive copyright protection, but a work done by someone outside the government with its copyright protection could be later transferred to the U.S. government, and in that unusual case, it could still have copyright protection.

Here's an example, courtesy of Photo Attorney (I feel like there should be a trumpet flair, enter... da da da daaa... Photo Attorney! ok, never mind). Anyway, this guy has some interesting points about this scenario. He cites the common practice of photographing public statues for postcards, and so forth, which copies would be unrestricted if the original work had no copyright protection, right? Copyright means, literally, the right to copy.

But, what if the statue wasn't made by the government or its employees, but was commissioned? Photo Attorney?

"Sometimes, however, copyrighted works are created by non-government personnel for the government, such as when the government commissions a piece of art. The artist later transfers the copyright to the government. The "government works exception" then allows the federal government to hold the copyrights for those works transferred to it by assignment."

He goes on to point out that some observers feel that the government may abuse this exception to get copyrights to which they might not otherwise be entitled. And suggests that you consult someone like, Photo Attorney! Not necessarily a bad idea.

The Vietnam Women's Memorial Foundation is using

the Government Works Exception as a basis to sue

those who have sold photographs of the memorial.

(Photo courtesy of iStockphoto.)

But, as far as using photography from the National Archives, the archives themselves point out that most of the photography is free of copyright. That would apply, similarly, to photography from US Govt agencies like NASA, US Fish and Wildlife Service, etc. Of course, one would have to carefully research each image from the archives on the respective government sites to ensure that the photo is in the public domain. And, other rights issues could apply. Even if they are copyright free, if people appear in the photos, they may have publicity or privacy rights, or other contractual protection (a model may have appeared in the photo and re-using that person's image commercially may require clearance, for example).

In the photo, above, of the Statue of Liberty... the statue itself is owned by the US Government. But, who took the photo? Aha! They will have rights to the photo, potentially, even though they don't owe anyone a dime for the right to take a picture of the statue. You will have to get the photographer's permission to use that photo, unless it's a photo taken by the government, itself. (Above photo is courtesy of the US Dept of the Interior, National Park Service, PD).

Confused?

Best to consult your friendly, local clearance person. . . I bet he will be cheaper than Photo Attorney.

Courtesy of Smiley Face