Archive for the ‘Copyright Education’ Category

Down Under Copyright Infringement

Wednesday, October 12th, 2011 by

On my commute to work this morning, over the din of chattering businesspeople and the train whizzing through the tunnel, I heard a man listening, and pleasantly bopping along, to Men at Work’s “Down Under.” Initially, I felt like bopping right along with him, that familiar, infectious rhythm making me smile despite myself. After a couple stops, it got me thinking about the lawsuit brought against the band in 2009 for allegedly using several bars of the Australian folklore song “The Kookaburra Song” in the melody of their international pop hit without permission. Never a missed chance to ruminate on copyright infringement!

The music industry is replete with these sorts of hairsplitting accusations that dominate the world of rights and permissions, a vital part of any creative endeavor.

When Lady Gaga released her highly anticipated single “Born This Way” from her most recent album of the same name in February, the crowd went wild. The internet was inundated with people wanting to give their thoughts on the pop maven’s newest musical venture – they loved it, hated it, idolized her, thought she had gone too far. The most echoed of the voices, though, was the claim that the song copied its melodic structure from reigning pop queen Madonna’s “Express Yourself.” Critics had a field day with this. Suddenly everyone was listening to the two songs back to back to see if they could spot the similarities. After giving both songs a very thorough listen, I have to say, I have a clear favorite, but I also can’t quite make out the supposed rip off. Gaga agrees.

But don’t just take my word for it. Check them out for yourself and see if you can find merit to this allegation littering the web.

Madonna – “Express Yourself”
Lady Gaga – “Born This Way”

So what does Madonna have to say about all of this? After all, she and co-writer/producer Stephen Bray do hold the copyright for the iconic anthem released in 1989. Do they feel their artistic integrity and legal rights have been infringed upon? At this point, it’s hard to say. CNN reported shortly after the release of Lady Gaga’s contentious single that though Gaga told Jay Leno she received an email from Madonna’s representatives sending along the pop veteran’s love and support, those same reps claimed to have never told Gaga anything. The world may never know.

This brings up an interesting question of the difference between simply using someone else’s work as inspiration while making nods to their style and downright copying. Critics find Cee Lo Green’s “Bright Lights Bigger City” to be reminiscent of the much-beloved “Billie Jean,” something which doesn’t seem to bother the fans at all. In fact, sampling of beats, loops, and whole sections of other artists’ songs has been a popular form of music creation for decades. Take a look at Gregg Michael Gillis, better known by his stage name Girl Talk. He’s made an entire career out of doing just that. (One of the oldest songs using this mashup style was recorded in 1956 by Bill Buchanan and Dickie Goodman, then known as “break-in,” a hilarious predecessor to the now insanely popular music genre.)

The real question here is: is all of this legal? And if it is, should it not be?

Girl Talk’s label Illegal Art assures that the musician is operating fully within his rights under a Creative Commons license, and even provides an exhaustive list of all the songs, and their respective artists, sampled in his latest album on their website.

Men At Work, however, were not quite as lucky. Larrkin Music Publishing, who owns the rights to “The Kookaburra Song” filed suit against Ron Strykert and Colin Hay, the two Men At Work who wrote the song, as well as their former record label. The men were said to have reproduced a “substantial portion” of the old folklore song, and had thus infringed upon Larrkin’s executive rights. After a lengthy appeals process, Larrkin eventually won out on the grounds that the 1981 hit did, in fact, reproduce a noticeable part of the old song, which I believe to be the right decision. Take a listen and see.

“The Kookaburra Song”
Men At Work – “Down Under”

That offending flute, which is so recognizable in the unofficial Australian anthem, clearly plays out the melody of this childhood tune.

I’m all for artistic interpretation and using great works that came before you as inspiration for your own form of expression, but does that mean we should do away with copyrights altogether? Do they stifle creativity?

I think quite the opposite, actually. Copyrights allow for the people who spent the time, energy and mind power on an original project to receive the acknowledgement (and compensation) for their work, especially if it’s benefiting the population enough to warrant imitation.

Shepard Fairey’s Tale: A Missed Opportunity for Copyright Legislation

Thursday, January 20th, 2011 by

As of Jan. 12, 2011, the Associated Press and Shepard Fairey have agreed on a settlement. The feud was over a 2006 photo of then Senator Obama (left), which AP said Fairey used without permission for his HOPE poster. (AP Photo/Mannie Garcia/Shepard Fairey)

After almost four years of deliberations and legal maneuvering, Shepard Fairey and AP agreed on a settlement. While I’m not generally pro-litigation, this was one of those rare occasions when the law would have benefited from a trial. What the settlement means is that, once again, the courts were not forced to rule on what is meant by “transformative use,” which was introduced—but left largely undefined—in 2003. Instead, the courts left it in the hands of the litigants to scratch out a backroom deal. They missed an opportunity to expand the doctrine of fair use, which protects our constitutional notion of a commonwealth of ideas and the progress of science and the arts, and we, as a society, poorer for it.

Unfortunately, Fairey made a critical misstep and misrepresented his source material, and as a result, we have a settlement rather than a decision. Those of us who think that conglomerates are essentially having their way with copyright law—specifically in the form of a bogglingly long copyright term that is crippling our artistic, intellectual and cultural progress—will have to wait. And probably wait and wait and wait. And while we wait, our creative commons will continue to be owned and controlled by companies like Disney, Warner Bros. and AP.

It’s not that I don’t see where the original AP photograph “inspired” Fairey’s work; I do.  But do I think that Fairey’s work is merely derivative, or a slavish copy?  I do not. I took the time to go see the actual work in the National Portrait Gallery. It is a complex and rich canvas with incredible artistic detail. Fairey’s work clearly supersedes what is, when boiled down, a routine journalistic photograph. Ask yourself how many photographs, particularly of public figures, you have seen like this one? Is this photograph, more or less, a “scene a faire” at this point? I would argue that it is.

Allowing this case to be settled privately prevents the judiciary from continuing the discourse between lawmaker and the judges who interpret those laws. (See “Separate but equal,” “Don’t ask, don’t tell.”) And it’s not just for important civil liberties. I’m not suggesting that copyright law is as important as constitutional law, the Founding Fathers insisted that it was, which is why they inserted it directly into the Constitution itself. Article 1 (Article one!), 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.

Without this commonwealth of ideas—both the incentive to create and the public benefit of building on those ideas—essentially all progress comes to a complete standstill.

But over the last, oh, 83 years or so, copyright law has gotten sick. I say 83 years because the problem originated that long ago in the form of a little mouse wearing black lederhosen. I’m talking about Steamboat Willie, of course. (You may know him better as the predecessor of modern day Mickey Mouse.) Since the invention of Steamboat Willie, conglomerates have more or less had their way with lawmakers over the protection granted to artistic “authors.”  Protection at the time of the Founding Fathers: 14 years (with another 14 years if you filed to renew).  Nowadays: life of the author plus 70 years. There’s a reason the Sonny Bono Copyright Term Extension Act is also called the “Steamboat Willie Act.”

Which brings us back to Shepard Fairey. In a critical case decided in 2003 by the seriously influential 9th Circuit, the court finally fought back against corporate control of all things copyright, by introducing a concept called “transformative use.” It wasn’t really a new concept, per se, but a clarification of a copyright law term: derivative. It was the court doing its job and balancing out the lawmakers.  Essentially, transformative use means that the second work supersedes the original work, as opposed to being merely “derivative.” It adds something—something beneficial to the public.

Alas, while this case looked like a major step forward for copyright law and for creative authors, we seem to be back at square one. We finally had the attention of the nation and the opportunity passed with no impact on this critical but poorly defined area of the law.

A Copyright Dinner with Photog Friends

Monday, August 9th, 2010 by

The Professional Photographers Society of Greater Washington was recently kind enough to have us at one of their dinner meetings.

We discussed sharing sites, fair use, transformative uses, sending takedown notices, and licensing work through

Here are some of the highlights:

Covering Your Assets

Wednesday, March 24th, 2010 by

Since the advent of the Internet and digital technology, it has never been easier for someone to rip off your work. It happens every day, despite the parameters of copyright law, which give an author exclusive rights to his or her creative content. The idea behind this legislation is to give creators an incentive to create, thus benefiting us all by enriching our culture, economy and society as a whole. Without it, we might be faced with a world in which copycats rule, creativity is stifled and content has the same stale taste.

But even when your works are copyright protected, there is still potential for infringers to take advantage of that content’s accessibility and to use it without giving you credit or monetary compensation. We’ve partnered up with PicScout, which offers a service unique to this Internet dilemma. Its image recognition software combs the web for your image(s) and reports every usage on specific sites. This is where we step in and provide the legal component. We contact infringers, send out takedown notices or negotiate licensing terms and fees, obtaining the compensation you deserve. In a recent case, we were able to procure a nice chunk of change for a nature stock photography site that found out its images were being used on several sites without its knowledge and permission. And it’s not just the bigger image vendors; the same can be done for independent photographers. It’s one small step for your pocketbook, one giant leap for copyright enforcement.

Technology never ceases to amaze me. It continues to circumvent, challenge and redefine the laws attempting to maintain order in the Wild Wild Web. I understand how it can be daunting to take the law into your hands and track down the “bad guys” (or the blissfully ignorant — “I saw it on someone else’s web site. Doesn’t that mean it’s public domain?”). Stealing may be as simple as right clicking an image, but now there are ways to fight back, technology with technology.

What is Copyright Violation Worth?

Tuesday, January 26th, 2010 by

Well, the mutant’s outta the bag… Not so much now, as we near a year after the original controversy, but that’s what people were thinking last spring when a bootleg copy of “X-Men Origins: Wolverine” leaked onto the Internet a month before its intended theater premiere. In fact, I recall the initial buzz about the premature release. A few of my friends, who are comic book junkies and avid X-Men fans, informed me of the event with mingled giddiness and disgust. We agreed that a few weeks of waiting was worth maintaining our nerd integrity, and (to my knowledge) we were all untainted when we saw the blockbuster in theaters.

But what ever happened to the leaker? Little did he know, the now infamous “Wolverine” leaker, Gilberto Sanchez, a working stiff from the Bronx, was in for a rude awakening. Gilberto, who says he bought a DVD of the unfinished version of the film on the street, was literally awakened by F.B.I. agents pounding on his door in December. He was arrested and indicted by a federal grand jury on charges of uploading the copy of the 20th Century Fox movie to the Web site If convicted, Sanchez faces prison time and a fine of $250,000 or twice the gross gain or loss in regards to the offense, whichever is greater. Though Sanchez, released on bail, seems to be bearing the brunt of the film studio’s wrath, the F.B.I. continues searching for the true criminal: whoever stole the copy of the film in the first place.

So, what was the total damage wrought by this clear copyright violation? “Wolverine” ended up grossing $373 million worldwide, making those 15 million downloads (by Fox estimates) seem like a drop in the bucket. But just try telling that to the film studio. Or Sanchez, for that matter. More than anything, I’d love to ask him the question that will be on my mind as I pop a Netflix DVD of “Wolverine” into my laptop this week: “Was it worth it?”

Don’t Steal Content

Friday, January 15th, 2010 by

Most copyright infringements are not intentional but rather a lack of education on the part of the person using the content without permission.

Maybe they didn’t know they weren’t suppose to copy that image from Flickr onto their blog.  Maybe they thought because they bought the CD they could use it as a sound track for their commercial.  Maybe they didn’t realize that non-commercial Creative Commons license conflicts with their corporate website.

Even when the user does seek permission for use from the source there may be other issues present like additional rights holders that require model release or ambiguous licensing terms that would put the user in violation if they, say, used it in a print brochure in addition to on their website.

Education in the area of intellectual property rights will become increasingly important as more and more people publish works like blogs, podcasts, and video casts, and use creative content from sites like Flickr and YouTube.

We hope this blog can be a resource for some of that education for you.