While clicking around last night, I found a fair use scenario that I wish I had known about for the paper. Last August, The National Organization for the Reform of Marijuana Laws (NORML) created a poster of President Obama as a college freshman, smoking what appears to be a joint. In the original picture he is smoking a cigarette, but artist Sonia Sanchez altered the photo to make it look like a joint, and put the words “Yes We Cannibis” on the poster. The president’s classmate at Occidental College, Lisa Jack, took the photo in 1980. NORML never sought Jack’s permission, even though it is selling the poster.

The argument here is whether or not fair use law protects the poster. I think it does.
Its purpose is transformative. Initially, I was thinking it would be a parody, for a parody is defined as a “literary or artistic work that imitates the characteristic style of an author or work for comic effect or ridicule” (as we read in Campbell v Acuff-Rose, who was quoting the Encyclopedia Britannica), and this poster certainly has a comic effect. However, I don’t think it is the perfect example of a parody, because Obama has admitted to smoking pot… it would be different if he had claimed not to and was then discovered to have lied. However, the fact that his signature “Yes We Can” phrase was creatively altered to fit the creatively appropriated photo to send a message is still transformative, in light of the fact that the President admitted to having smoked pot, something that politicians are known avoid coming out with. (http://www.youtube.com/watch?v=cpBzQI_7ez8)

While the poster was made for commercial purposes, we read in Campbell v. Acuff-Rose that “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Besides this, the poster would not hurt Barack’s ‘market’. He has stated he is against legalizing marijuana, and no one who likes him now is going to dislike him because of this picture, which is clearly fake. Obama is a political figure, and this is to be expected for anyone who puts him or herself in the public eye.

On the other hand, I do see why Lisa Jack, the photographer of the original picture, might get upset. Sure she can argue that a substantial amount of her work was used and that those who used her work are making money off of it, but I think these factors are overridden by the fact that it is certainly transformative and doesn’t harm the potential market for her picture… if anything, it would make its worth greater. I don’t think she took this to court, though, so perhaps she realized this as well!

Here’s a link to the article that I also posted on Delicious: http://voices.washingtonpost.com/reliable-source/2009/08/rs-norml5.html

This article was found on the legal section of the Billboard Biz website.  In the story the Australian group Men at Work have been found to have infringed on the copyright of a camping song created in 1930 within the riff of their extremely popular song “Down Under”  What I find to be most interesting is the timing of this infringement suit.  The Men At Work song was released in both 1979 and 1981.  But the suit against them was not filed until 2008.  I wonder what exactly took so long for the suit to be filed.  Why did the Plaintiff wait so long?  I think that the decision may have been influenced by the performance of the song at the closing ceremony of the Sydney Olympics in 2000.  The Plaintiff is arguing that the damages equates to between 40% and 60% of royalties accrued by Men At Work for “Down Under.”  Maybe I am still not clear on how the damages awards are calculated but I definitely do not understand how that large of an amount should be awarded for infringing the copyright on a campfire song–how exactly was the song damaged?

Read the entire article here:
http://www.billboard.biz/bbbiz/content_display/industry/e3i9f46c57380aa314f01b4f4dbd0094105>

So far, much of my copyright infringement research has revolved around music, books, digital works, peer2peer networks, and videos, but I have not read much about copyright in the fashion world. Before stumbling upon some related articles, I did not think that copyright, or any protection for that matter, applied to fashion designs. According to a Reuter’s article I bookmarked on Delicious, various fashion designers/brands, such as: Anthropologie (Urban Outfitters), Anna Sui, Gwen Stefani’s Harajuku Lovers brand, Diane Von Furstenberg, and Bebe Stores Inc have all filed copyright infringement lawsuits against the popular, trendy, and “inexpensive” retail store Forever 21. In this particular case, Anthropologie is suing Forever 21 for the second time for allegedly copying patterns used on several Anthropologie clothing designs. They are charging Forever 21 with, “copyright infringement, unfair competition and deceptive trade practices.” After reviewing Protection for Fashion Design, I agree with the idea of a design needing to be able to substantially exists separately from the article it is attached to in order to be eligible for protection. While the fashion industry is a place of art, creativity, and innovation, it often recycles concepts, and designers are heavily influenced by each other; whether the influence is what to or not to recreate, what is seasonally appropriate, or how to innovate a current trend. However, to be liable for “fashion infringement,” I think that a design really has to explicitly be a replica of the creator’s design, and in a very similar location as it is placed on the original article or garment. What do you think?

Eric Goldman has a nice brief review of Judge Alex Kozinski (of the 9th Circuit Court of Appeals, author of the “Barbie Girl” opinion) and Josh Goldfoot’s recent article A Declaration of the Dependence of Cyberspace, which is obviously a jab at the Barlow piece in the assigned readings for Thursday.

Goldman does a good job of staking out some middle ground between the two positions, reminding us that in some ways, because of the statutes Congress has passed, the internet is now special as a matter of law, whether or not it actually is as a matter of fact. His argument that innovation may be most fruitful in the gray areas between legality and illegality is also worth keeping in mind throughout the rest of the course, as we consider the potential gaps between who is guilty of copyright infringement and who ought to be.

http://genyu.net/2009/11/24/bridging-the-gap-mash-up-artists-and-copyright-law/

Music mash-ups have exploded into popularity in the recent decade.  Before DJ artists were able to acquire tracks and spin them however they liked for events, clubs, parties, and personal occasions.  I assume that most of these DJs would have to legally obtain  these songs in oder to put them together in such a fashion, but now that downloading songs has become yesterdays knowledge and as easy as making your morning coffee, original artists are not being paid for the distribution of their songs and in-store CD sales continue to go downhill.  Who needs to buy a whole CD that has only a few songs you might really like, when you can download songs and arrange your favorites in certain mixes on a burned disk.  Not only is music more convenient to listen to, it also feels more personal, your own mix that you can be proud of.  With the right equipment, everyone can be a DJ.

In the last decade, artists have taken total advantage of this ’splice and dice’ technique of songs courtesy of advancing mixing technology and the ease of internet file sharing.   Gregg Gillis, the mastermind behind Girl Talk, has gotten a lot attention recently because of his ability to find legal loopholes in order to spread his music and not pay any royalties to the original artists.  According to this article, Gillis uses an average of 21 music clips per song, and if he were to pay fully and legally, he would owe $260,000 per song and $4.2 million per album.  Wow.  Even though I can understand why he is getting criticized legally, if I were able to do what he is doing by technically saying he is not selling the albums for commercial purposes, I would totally keep doing that in order to dodge the hefty user fees for the tracks involved.  Could you blame him?  But when does a mash-up artist deserve the same rights as a recording artist?  Girl Talks 2008 album became the second most popular album of that year, bringing Gillis right up to par with the income being received by recording artists.

So far these mash-up artists have remained in the legal middle ground.  Their music is so popular, but marketing companies are to afraid to promote it because of fear of attacks from the legal guys and other record companies.  I think there should be a way so that both sides win, as there are always three sides to every case: side A, side B, and what is actually right.  Mash-up artists need to stop thinking directly in terms of their popularity to consider the legal damages, and the legal guys need to stop worrying about the amount of royalties being taken away and consider the promotion of a whole new genre that gives variety to popular music and could become the next huge money maker.  Copyright laws involving the usage of clips of previously recorded tracks needs to revised.  No mash-up artist is going to want to shake hands on paying full amounts of royalties for using clips on a song.  What a mash-up artist is doing is taking DJing to a whole new level, they are creating entire new tracks, using pieces of a whole to create new songs.  There is an argument for a fair amount of creativity here, but the artist did not create each of the clips.  This is where there needs to be a compromise!  Laws need to be revised, so that a certain percentage of the royalties could be paid to the record companies, not in full, and so that the mash-up artist may be motivated to pay while still receiving individual benefits for his songs.  Girl Talk does not charge a set amount for its albums, but I wonder is there is a minimum?  And if not I wonder how many people have tried to put in less than a dollar for a whole album, and how much total album sales would make in comparison to an actual set price.

I have a friend that put together tracks in a genre known as Dub-Step.  It’s more individual artist created beats and sounds, but with a few warped clips here and there of bits of tracks done by other artists.  If the music is only provided for entertainment at bars without a cover charge, is that considered infringement.  I’m sure many would argue yes, but if people are not directly paying to listen to his work then I believe he has rights to continue to play.   Although I think there is a line crossed when songs are recorded and put onto an album that people pay for.

At the end of the day, mash-up artists have found ways to get around paying in full for their tracks, and they are not going to want to start paying if they don’t have to.  Legal companies are scratching their heads trying to adapt to this new strain of music and possible legal infringement.  All I can say is, compromise people!  It’s the best way to encourage new developments in music variety, while letting the record companies get some shut-eye at night.

The U.S. Department of Justice is taking action in order to stop copyright piracy. Vice President Joe Biden called a meeting in December which was attended by Attorney General Eric Holder, other cabinet officials, and top executives from the movie, music, and book industries. They announced the creation of a task force that would combat this type of crime at a state, federal, and international level. As a result there will be increased focus on links between piracy and international organized crime.  There are estimates that companies lose billions of dollars per year due to copyright theft.

What will this mean for us, the people? Public Knowledge’s Art Brodsky hopes the emphasis will be on shutting down Chinese DVD and CD factories rather than going after individuals. I agree with him. I think that going after the “big guys” first will have an important effect on the piracy market. People can’t purchase illegal movies or buy CDs, at a lower cost, if there’s no one to reproduce them.  Those are the ones who are making a profit. It’s true, I can argue that individuals who illegally download movies and music in his or her home for non-comercial use are also making a profit by not having to purchase them; but it’s so accessible that it’s impossible to find one person who doesn’t know anyone who doesn’t do it.

In order to successfully carry out this task, I think it should be divided into two parts. The first focus is going after the “Chinese” factories that are reproducing the DVDs and CDs at a mass value. It’s important that the ones on the top are knocked down first so the people will be aware of what’s going on, and their options will become limited. The second part involves the people. The government, or those enforcing the law, should warn the people who download illegally through individual notifications. An example is the NYU warning e-mail that many people have received, which has been cited in a previous post. I’m sure most students heard about that notification, but how many of these students have stopped illegally downloading because they simply heard of it? Take it a step further. If I were one of the people who received an e-mail, with my name on top, stating I should stop or further action would be taken, I’d think twice about downloading something illegally. It’s playing on people’s fear, but I think it’s the most effective way to decrease the number of illegal downloaders. And eventually implement further action if those individuals didn’t stop. Once people realize it isn’t a joke, we will see a positive outcome for those who want to protect their intellectual property.

http://news.yahoo.com/s/nm/20100212/pl_nm/us_piracy_1

A recent story in entertainment news was the Conan O’Brien v. NBC (no, not a court case, and will never be) fiasco. As I’m sure we all have heard and read numerous times, Conan was basically ousted from his new time slot as a result of poor ratings for “The Tonight Show” and Jay Leno’s failed experiment. This series of unfortunate happenings has had an impact on everyone involved and has turned into a complete mess.

The part of this debacle that was especially interesting to me was the fact that NBC owns all of the intellectual property rights to Conan’s many characters that were created for “Late Night.”

While this is an obvious work-for-hire situation, it raises a few interesting questions about this part of copyright law. Who wins here? Conan, if he decides to host a new show on a different network, can’t take his characters with him. NBC would be foolish to use these characters in another format or a different show because the characters and segments are wholly associated with Conan O’Brien. Viewers like me and I’m sure many others in the class will never be able to see these characters and segments, such as “Conando” and “In the Year 3000”, in their exact form again.

I understand the law and therefore understand the legal reason NBC has retained these rights. Although Conan claims to not want his hard earned intellectual property, should NBC have granted him rights on the fact that they are taking his show away and want to do the right thing? I think that would make NBC look a little better in the viewers’ eyes at least.

A similar situation to this occurred when David Letterman left NBC to go to CBS in 1993. Letterman changed the names of his characters and bits and went on to use them on his new show. Similarly, what I would like to see Conan do is use the characters that him and his writers created on his new show (if that’s what he chooses to pursue), but apply the fair use doctrine using an alteration on the characters as a parody on the characters that NBC has rights to.

http://www.reuters.com/article/idUSTRE60H0CH20100118

• Radio stations, bars, night clubs, and juke box operators;
• Hotels that play the radio for guests through speakers or headphones;
• Restaurants;
• Stores;
• Telephone intercom systems that play music while callers are on hold” (Source: http://publishing.wsu.edu/copyright/music.html)

In response to the post “Internet2: My Space is Your Space?” I looked up the RIAA. What I found is an article that reveals the “unknown” means by which the RIAA is persecuting downloaders, or at least one of them. “Judge Says Music Sharing Doesn’t Necessarily Equal Infringement”, which comes from Wired, covers Judge Neil V. Wake’s unusual opinion in the case of Atlantic vs. Pamela and Jeffery Howell. I think the title kind of makes what is so unique about this case pretty obvious. Judge Wake felt that music sharing wasn’t necessarily infringement because of the way the RIAA found proof that the Howells were providing illegal access to music: they committed the infringement themselves. MediaSentry, at the behest of the RIAA, “download[ed] 12 copyrighted songs from the Howell’s Kazaa account at two in the morning on January 30, 2006.” Though this proved that the Howells had the potential to provide illegal access to these songs, Judge Wake ultimately believed that there was no proof that, other than by MediaSentry, the material had been downloaded. Essentially what MediaSentry did is like an employee at a grocery store slipping unpaid food into a person’s bag and then accusing him or her of shoplifting. I also find this to be underhanded because, under normal albeit illegal circumstances, both the downloader and the uploader would be held accountable. In a scenario like this, only one party is “guilty” and it is because of the company’s own nefarious actions to prove that the person is guilty. A set up like this makes one wonder how much of the whole situation of illegal downloading is arranged? It’s probably a little too much of a paranoid assumption but then again, if each downloaded song is sue-able for $1000, whereas if it is bought legally it costs $1, the financial gain maybe worth providing easy access to the material.

As a side note, this article was written April 30, 2008, so it’s nothing new but pretty fascinating.  

Here is the link: http://www.wired.com/listening_post/2008/04/judge-says-musi/

The controversial online Peer 2 Peer programs have continually been debated, defended, and criticized by its creators, users and “victims”. I can understand how the public sharing of music and movie files for free is problematic, but where is the line drawn between public and private spheres. Internet2 is a file sharing program that was designed to aid top universities in researching the “next generation” of Internet. This program is private, only allowing access to university members, including students and faculty. However, there has been numerous amounts of music and movie file sharing amongst quite a few top universities, including NYU and Columbia University. Using unknown sources, the Recording Industry Association of America was alerted of the “illegal” file sharing, and took judicial action, placing lawsuits against many college students who “abused” the RIAA’s property. The question remains, does the RIAA really have the authority to deem file sharing in a private sphere, copyright infringement? In my opinion, the answer is no! The way I see it, as a student, I use other forms of compiled documents and media sources, such as Pro Quest that exclusively allows me, as a registered student, to use such resources at my discretion for academic and other reasons of my choice. These acquired resources serve their purpose, and are not then redistributed to “outsiders”, or are they. The fact is that I could access these documents, print them out, and illegally distribute them to as many people as possible. What the RIAA is fighting 18-23 year old students for is an issue that can not be resolved through lawsuits, but instead one that is increasingly occurring throughout the web by many users. Another part of the RIAA’s complaint is that this private network allows for faster downloads, almost half the speed, of traditional illegal or legal downloads of files. This argument is weak because many college students and Internet users alike are constantly downloading free files regardless of time lengths. Instead of monitoring and attacking academic programs such as Internet2, the RIAA, along with the MPAA, and other entertainment creators need to adapt to the changing digital world that is constantly evolving at immense speeds.