If a website offers a link to a copyright work (without the author's permission), is that a form of copyright infringement? Is it a copying? Or a distribution?
What if a company offers individual subscribers their own tiny remote antennae - a small device in Brooklyn that picks up all the free-to-view broadcast TV signals in NYC - recording each subscriber's favorite broadcast TV shows and then making just those broadcast TV shows available to that unique subscriber - a form of time-shifting where a user who is traveling can watch local TV shows after they are broadcast from her discrete antenna and digital recorder? Is that Brooklyn- based company or the subscriber guilty of copyright infringement?
Here's a link to some fascinating 2016 guidance from the US copyright office.
Showing posts with label IPR TNUA. Show all posts
Showing posts with label IPR TNUA. Show all posts
Is Intellectual Property Really Property?
If you watched the video of Tina Turner (above, recorded in Sopot, Poland) or you're reading this post, your digital device is probably rendering some type of copy.
Tina Turner first recorded her vocal track for the original hit record on March 7th, 1966 - 51 years ago. And this video of her singing live was recorded August 15th, 2000. And I wrote these words on Wed. March 8, 2017 ("my" words - in this particular order to express some ideas).
Assuming, for sake of argument, that my ideas are original and have some value (not as much as "River Deep, Mountain High", but some nominal value) can I say I own these words?
If I don't own the words - if the actual words aren't my property, but my particular arrangement of them to express my thoughts can be considered a form of property - can I prevent people from copying them?
What exactly makes any claim of "rights" over intellectual property (e.g., a song, a performance or a blogpost) legal?
Is my claim over "my" words ethical?
I want you to share what I write. But what if I didn't?
Is it right that criminal copyright laws (first crafted during a different time, before Tina Turner and I were born, when people used different technologies and engaged in different cultural practices) still apply?
In this era of abundant and ubiquitous information, is it time to re-evaluate our approach to Intellectual Property?
What is the philosophical foundation for saying someone "owns" a work of expression (like a song, a blogpost, a movie, novel, sculpture, ballet, or poem).
Follow this link to a fascinating article by David Faraci entitled "Do Property Rights Presuppose Scarcity?".
Did Fox Take (Without Permission) a Video Game Clip, Then Claim No One Else Could View the Clip?
"Just when you think you’ve seen every ridiculous example of a bogus DMCA-style takedown, another steps up to take the crown."
Today's post illustrates how the law of copyright can trip up even large corporations. Like Rupert Murdoch's Fox.
Rupert Murdoch is a staunch opponent of "fair use" - arguing that even the smallest unpermissioned use of his network's content should be illegal. But, of course, Fox has a history of using content that belongs to someone else without permission.
Which brings us to the May 2016 moment when Fox took a gamer's YouTube video - made while the gamer was playing a 1980s arcade game called Double Dribble. Fox then used the gameplay video (without permission?) in a TV episode. Then, and this is the part where the DMCA comes in, Fox tried (momentarily, as it turns out) to claim the underlying clip as their own...
Let's start at the beginning...
How was Fox able to have someone else's clip removed from YouTube?
The answer requires an understanding of a 17 year old revision to US copyright law known as the DMCA...
DMCA stands for Digital Millenium Copyright Act. (And, if you attended the class we had this week on Copyright and International Trade Agreements, you might also be interested to know that the DMCA is a 1998 US law that implements obligations agreed to under the World Intellectual Property Organization in 1996.)
In 1998, the DMCA imposed new penalties for circumventing copy protection and increased the penalties for copyright infringers. But perhaps the biggest innovation under the DMCA was that internet service providers and other intermediaries could be exempt from liability - when their services were used without their knowledge to infringe copyright - as long as certain steps were followed.
This limitation of liability under the DMCA is known as the "safe harbor" - since an area where there is no liability can be considered a "safe harbor."
What specific steps entitle an internet service provider to the DMCA's safe harbor?
As most students of copyright law know, someone who is not directly infringing copyright, but who contributes to the infringing acts of others, has historically been liable under US law for what has been known as "contributory liability."
Well, in the 1990s it became apparent that online service providers (“OSPs” or "ISPs" meaning internet service providers) might be dragged into court as contributory infringers simply for unwittingly hosting infringing material (e.g., many sites allow users to upload content, and sometimes those uploads include infringing material).
So back in October of 1998, almost 7 years before the domain name YouTube was even activated (in Feb. 2005), the US law was revised to protect providers "of online services or network access, or the operator of facilities therefor” 17 USC §512(k)(1)(B). Specifically, the DMCA created a safe harbor for online service providers against copyright infringement liability.
How exactly does the DMCA safe harbor work?
If companies that allow user uploads (like YouTube) follow the DMCA rules - i.e., promptly blocking access to alleged infringing material or removing such material from their systems when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent - the OSPs will not be liable for copyright infringement.
But note: When an OSP receives a takedown notice from a copyright holder or their agent, under the DMCA the OSP is required to promptly remove or disable access to the accused material - whether the material is infringing or not.
What if the uploader argues fair use?
Or what if the entity claiming to be the copyright holder isn't really the owner?
According to a May 20th, 2016 report in TorrentFreak, that's exactly what happened last week when Fox filed a complaint under the DMCA.
Fox sent YouTube a takedown notice - asserting that a 2009 clip was illegally copied from their 2016 show - when in fact Fox had copied the original clip - and YouTube followed the DMCA and removed the 2009 clip - illustrating how the takedown notice system can be misused to create ridiculous results...
The facts are not disputed. In a May 14, 2016 episode of Family Guy on Fox, Peter annoyingly exploited a glitch in a real world 1986 game from Konami called Double Dribble.
After the episode aired, Fox sent YouTube a letter, instructing that OSP to takedown a video that had the gameplay in it.
That's right.
Fox was asserting they owned the video made and uploaded by a Double Dribble player and fan back in 2009.
Here's the problem: Fox doesn't own the copyright to the Double Dribble game (the characters, artwork, music, sound effects, etc.) and it doesn't own anything added to the Double Dribble video clip by the user who recorded and uploaded his game play.
Never did.
Those rights belong to the game company and the player.
In fact, Fox apparently obtained the clip that they used in their Family Guy episode directly "from YouTube where it had been sitting since it was first uploaded in 2009." Arguably infringing the copyrights of others.
How did the takedown notice happen if Fox doesn't own the gameplay clip?
Apparently Fox uses an automated system that compares everything on YouTube to what Fox has broadcast - and the system was unaware that Fox had copied the original Double Dribble clip (without permission?).
In other words, Fox (or at least Fox's automated system?) simply behaves as if everything broadcast on Fox belongs to Fox. So Fox (or their automated system?) was under the impression that Fox owned the gameplay clip just because it had been incorporated into a Fox television show.
And the takedown notice that Fox sent to YouTube?
Not supported by the facts.
But a delay in responding to takedown letters could deny YouTube the safe harbor. So YouTube dutifully took down the original gameplay clip:
But now (after a few days and some public shaming of Fox) the original clip has been restored on YouTube:
Why did Fox relent so quickly - apparently instructing YouTube to disregard their takedown letter?
The DMCA provides for damages and attorney’s fees for “any person who knowingly materially misrepresents” the facts in a takedown notice.
In other words, Fox claimed ownership of the clip even though they didn't own the clip - and their mistaken takedown letter opened them up to damages and claims for the attorney fees incurred by the party who did own the clip...
Dealmaking Whoopsie
The package?
Sure to attract a great deal of attention.
Big stars (Russell Crowe and James Franco)!
Produced by Hollywood titans (Scott Rudin and Cassian Elwes)!
Based on a book that appeared on Time Magazine's list of the 100 Best English-language Novels from 1923 to 2005 (Cormac McCarthy’s Blood Meridian)!
A launch at the 2016 Cannes Film Festival!
What could go wrong?
Read this!
Because Copyright Protection is NOT Available for Movie Titles - Here's How the MPAA Title Registry Works
In a document known as Circular 34 the US Copyright Office explains that movie titles, catchphrases (i.e., a well-known sentence or phrase, typically one that is associated with a particular famous person), names of people, products, and services are NOT subject to copyright.
Why aren't these short forms of expression (in particular, this post is concerned with movie titles) copyrightable?
The short answer?
Copyright protects original works of authorship. And under copyright law as it exists today, short phrases, names and titles are not considered to be original works of authorship.
Why not?
Where the degree of creativity is minimal, the US system is reluctant to allocate court time and government resources to protecting plaintiffs under copyright law.
These requirements - of originality and authorship - also explain why judges will toss out copyright cases where a mere listing of ingredients or facts (e.g., a recipe or a telephone directory white pages) are lacking in creativity.
There is a grey area (isn't there always?), where a minimum amount of original expression might exist and copyright protection could attach to a very short work (e.g., a music sample). But, in general, movie titles and short phrases are not protected by copyright law.
But note: Short movie titles and short phrases can sometimes be protected under trademark law.
In general, trademark protects names, words, phrases and symbols which identify the source of goods or services in commerce.
Here's an example of a familiar phrase and symbol that serve as trademarks - where the brand catchphrase and symbol identify the source of commercial products and services (note the registered trademark symbol (®) that indicates the marks have been registered with a national trademark office).
But not all titles, logos and phrases can be trademarked.
Understanding the rationale behind trademark (as opposed to copyright) may help to explain why certain titles can obtain trademark protection - and others cannot. Unlike copyrights that deal with the marketplace of expressive ideas, trademarks deal with the marketplace of goods and services.
Basically, protecting a title or phrase under trademark requires that the title, logo or phrase is a brand - in other words, an identifier used on goods or services offered for sale in the marketplace.
Here's what that means: Trademarks exist to protect consumers from being misled. Because trademark law exists to protect consumers from confusion about the source of a product or service - a name like Star Wars can be treated like a brand - insuring that your Boba Fett toy comes from a licensed manufacturer.
Note: Even though trademarks serve the public interest by protecting consumers, trademarks also benefit producers. For example? George Lucas was able to sell the Star Wars brand to Disney in 2012 because "Star Wars" signifies a source of goods in the minds of the public. In theory, legally licensed Star Wars toys, etc. should be of a certain quality - thereby protecting the consumer and the owner of the Star Wars brand from unlicensed works. (Although there are some unlicensed Star Wars toys that are simply amazing.)
So, to recap, while it is not possible to protect a movie title under copyright law, it is possible to register certain titles of films or short phrases as trademarks - but only when those film titles or short phrases have become a brand.
In the US, registration of movie titles as trademarks with the United States Patent and Trademark Office generally requires that the work designated by the title is not a single film, television show, or book. The one possible exception: When the single movie's title has had such an impact that the title has acquired what lawyers call secondary meaning. And "[t]he crux of the secondary meaning doctrine is that the mark comes to identify not only the goods but the source of those goods. To establish secondary meaning, it must be shown that the primary significance of the term in the minds of the consuming public is not the product but the producer."
Ok.
One more question.
Since copyright law doesn't cover movie titles, and trademark law may not protect a movie title (e.g., no trademark unless your movie title functions like a brand), is it possible to protect a movie title in another way?
Yes!
The Motion Picture Association of America or MPAA (a not-for-profit private lobbying group, funded in large part by the 6 major studios) offers a non-governmental system - specific to the motion picture industry - for registering movie titles.
This voluntary registration for titles of movies is intended to prevent public confusion over films with similar titles. And the MPAA system does not rely copyright or trademark protection. Instead, it operates under contract law.
Here's how the MPAA title registry works:
In order to register titles, filmmakers must subscribe to the Bureau’s registry. There are currently almost 400 subscribers, including all of the major motion picture studios.
Subscribers to the MPAA title registry are bound by the MPAA's rules, which set out how to register titles and - most importantly - how to handle disputes between subscribers about previously registered movie titles.
Note: The MPAA system of title registration has nothing to do with copyright or trademark law. The title rules of the MPAA are enforced by contract (when you sign up, you agree to follow the rules, and if you don't follow the agreement, you can be sued for breach of contract).
Is there a recent example of the MPAA’s Title Registration Bureau leaping into action?
Yes. The MPAA system of title registration explains why in July of 2013, the MPAA’s Title Registration Bureau ruled that The Weinstein Company (TWC) could not use the title "The Butler" for their Lee Daniels film. "The Butler' was the name of a preexisting 1916 short film that had become part of the Warner Brothers library. So instead TWC called their film “Lee Daniels’ The Butler”:
The Platonic Ideal of a Cheerleader's Uniform, Adult Diapers, and Intellectual Property Law
Fans of fetish wear might want to tune in when the Supreme Court takes up two cases that were added to the docket on May 2, 2016.
These two cases will likely matter most to copyright lawyers and pervs.
(There is probably a Venn diagram, illustrating that sexual perverts who are also lawyers are the core audience for this post, but I don't want to think about that any longer than I have to... instead...)
Here are the two cheerleader uniforms whose similarities triggered the first case:
In that case, Star Athletica, LLC v. Varsity Brands, Inc., the court will consider cheerleader uniforms (and when a feature of a useful article is protectable under section 101 of the Copyright Act - specifically where to draw the line when it comes to copyright interests in "works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned").
In the second new case, SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, the court will take up adult diapers (and when delays in filing an intellectual property infringement lawsuit might invoke the legal defense of laches, protecting a defendant when a plaintiff has been unreasonably slow in asserting a claim).
The diaper case can be seen as a follow-up to a copyright ruling from 2014 in which the Supreme Court said an heiress - to rights in a 1963 screenplay - didn’t wait too long to sue MGM on infringement claims stemming from Raging Bull.
You can look up court cases about cheerleader uniforms on your own... (although the District Court's invocation of Plato in its 2014 Varsity Brands opinion is in my view a noteworthy piece of legal writing). And note: There are movie industry merchandising implications as to whether a designer or studio can claim a copyright interest in costumes that are also useful articles - like a helmet worn by a stormtrooper.
These two cases will likely matter most to copyright lawyers and pervs.
(There is probably a Venn diagram, illustrating that sexual perverts who are also lawyers are the core audience for this post, but I don't want to think about that any longer than I have to... instead...)
Here are the two cheerleader uniforms whose similarities triggered the first case:
In the second new case, SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, the court will take up adult diapers (and when delays in filing an intellectual property infringement lawsuit might invoke the legal defense of laches, protecting a defendant when a plaintiff has been unreasonably slow in asserting a claim).
The diaper case can be seen as a follow-up to a copyright ruling from 2014 in which the Supreme Court said an heiress - to rights in a 1963 screenplay - didn’t wait too long to sue MGM on infringement claims stemming from Raging Bull.
You can look up court cases about cheerleader uniforms on your own... (although the District Court's invocation of Plato in its 2014 Varsity Brands opinion is in my view a noteworthy piece of legal writing). And note: There are movie industry merchandising implications as to whether a designer or studio can claim a copyright interest in costumes that are also useful articles - like a helmet worn by a stormtrooper.
Copyright, Optical Illusions and the Penrose Triangle
The Penrose Triangle is named after mathematician Roger Penrose who - as a student - saw an exhibition of M. C. Escher’s work in the 1950s and began working on "impossible figures" of his own. One of the objects that Roger Penrose drew was a triangle - a drawing that looks like a real, solid three-dimensional object, but isn't.
Fun fact: Together with his father, a physicist and mathematician, Roger Penrose went on to design an image of a staircase that simultaneously goes up and down - known as Penrose stairs.
After the Penrose's staircase image was made public, M. C. Escher was apparently inspired to produce his own famous "Ascending and Descending" staircase lithograph (first printed March 1960).
The visual conundrum of the Penrose Triangle isn’t the only brain-teaser raised by the triangle optical illusion. Here's how copyright law (specifically the DMCA takedown provisions) became tangled up with Mr. Penrose's Triangle back in 2011.
In early 2011, Ullrich Schwanitz - a Netherlands-based designer - designed a 3 dimensional object based on the Penrose Triangle:
In mid-Feb. 2011, Mr. Schwanitz posted copies of the object he had figured out how to print in 3 dimensions for sale on shapeways.com (a site where people who create unique objects with 3D printers sell those objects). He was asking US $69.95 per physical object - which he would 3D print and then mail to buyers. Note: Mr. Schwanitz was NOT initially sharing his design file with users of the site (some shapeways.com sellers share design files - but many just want to sell the objects they print based on their designs).
Mr. Schwanitz simply offered copies of the object for sale - and (to drum up attention?) he released a video of the shape and (unwisely?) challenged others to see how it might have been done.
Well.. another avid 3D modeler, Artur Tchoukanov, figured it out.
Mr. Tchoukanov designed his own 3D shape that accomplished the same effect. And he uploaded his shape's specifications to Thingiverse.com, a "design community for discovering, making, and sharing 3D printable things," where designers typically offer their 3D designs for others to use without charge.
Mr. Schwanitz was not happy with Mr. Tchoukanov and Thingiverse.
And here’s where the story takes a turn that should be of special interest to anyone thinking about the implications of designing using new technologies...
Mr. Schwanitz sent Thingiverse a DMCA notice (i.e., Thingiverse could be a party in a copyright lawsuit against Mr. Tchoukanov - unless Thingiverse took the shape down immediately).
Hmmm…
There was no claim that Mr. Tchoukanov had copied Mr. Schawnitz’s computer code. Instead, Mr. Tchoukanov's original code simply created objects that were very similar to the one’s Mr. Schwanitz was selling.
Was Mr. Schwanitz right?
What are the legalities here?
(After there was much outcry online, Mr. Schwanitz dropped his complaint against Thingiverse and Mr. Tchoukanov's work. And Mr. Schwanitz's triangles are no longer for sale.)
To take a very extreme position, I guess you could argue that an optical illusion (like the one known as the Penrose Triangle) presents a real problem for copyright law (which is how Mr. Schwanitz initially chose to remedy his feelings of aggrievement).
While copyright can protect original expression, how can the law grant someone a copyright in expression based on a single mind-bending illusion? Couldn’t such a copyright also potentially grant control over the idea of the illusion itself? In other words, most optical illusions are essentially the expression of one idea: An idea that can be expressed in a very limited number of ways. And because the idea behind most optical illusions raises thorny issues of authorship and originality - there is an argument to be made that expression (without other evidence of original creativity) of an optical illusion might not be copyrightable.
In theory, copyright should not give an author control over his or her expression if that interest would prevent others from exploring their own expression of a simple universal idea.
Remember: Copyright doesn’t protect ideas.
And, arguably, because idea and expression are so closely linked in many optical illusions, a monopoly over the simple expression of an optical illusion could also grant a unpermissible monopoly over the idea.
But what about unique expressions? Like a unique object based on an optical illusion? Aren't they protectable by copyright?
Is it possible that Mr. Schwanitz’s design is indeed creative, and deserving of a copyright? And that Mr. Tchoukanov’s work does not violate that copyright?
After all, Mr. Tchoukanov’s work is not strictly speaking a "copy" of the Schwanitz design. It wasn't created by copying the file. Instead, Mr. Tchoukanov’s work is arguably an interpretation of an underlying public domain work. Yes. Mr. Tchoukanov was inspired by Schwanitz's design. But the optical illusion they both are working with is almost certainly in the public domain.
This one never went to trial. So we don't know what a court would have done with the arguments on all sides.
Is it a stretch to say that the legal and ethical problems here remind me of the experience of looking at a Penrose Triangle? The merits change and my sympathies shift depending on how I look at it.
What do you think?
Fun fact: Together with his father, a physicist and mathematician, Roger Penrose went on to design an image of a staircase that simultaneously goes up and down - known as Penrose stairs.
After the Penrose's staircase image was made public, M. C. Escher was apparently inspired to produce his own famous "Ascending and Descending" staircase lithograph (first printed March 1960).
The visual conundrum of the Penrose Triangle isn’t the only brain-teaser raised by the triangle optical illusion. Here's how copyright law (specifically the DMCA takedown provisions) became tangled up with Mr. Penrose's Triangle back in 2011.
In early 2011, Ullrich Schwanitz - a Netherlands-based designer - designed a 3 dimensional object based on the Penrose Triangle:
In mid-Feb. 2011, Mr. Schwanitz posted copies of the object he had figured out how to print in 3 dimensions for sale on shapeways.com (a site where people who create unique objects with 3D printers sell those objects). He was asking US $69.95 per physical object - which he would 3D print and then mail to buyers. Note: Mr. Schwanitz was NOT initially sharing his design file with users of the site (some shapeways.com sellers share design files - but many just want to sell the objects they print based on their designs).
Mr. Schwanitz simply offered copies of the object for sale - and (to drum up attention?) he released a video of the shape and (unwisely?) challenged others to see how it might have been done.
Well.. another avid 3D modeler, Artur Tchoukanov, figured it out.
Mr. Tchoukanov designed his own 3D shape that accomplished the same effect. And he uploaded his shape's specifications to Thingiverse.com, a "design community for discovering, making, and sharing 3D printable things," where designers typically offer their 3D designs for others to use without charge.
Mr. Schwanitz was not happy with Mr. Tchoukanov and Thingiverse.
And here’s where the story takes a turn that should be of special interest to anyone thinking about the implications of designing using new technologies...
Mr. Schwanitz sent Thingiverse a DMCA notice (i.e., Thingiverse could be a party in a copyright lawsuit against Mr. Tchoukanov - unless Thingiverse took the shape down immediately).
Hmmm…
There was no claim that Mr. Tchoukanov had copied Mr. Schawnitz’s computer code. Instead, Mr. Tchoukanov's original code simply created objects that were very similar to the one’s Mr. Schwanitz was selling.
Was Mr. Schwanitz right?
What are the legalities here?
(After there was much outcry online, Mr. Schwanitz dropped his complaint against Thingiverse and Mr. Tchoukanov's work. And Mr. Schwanitz's triangles are no longer for sale.)
To take a very extreme position, I guess you could argue that an optical illusion (like the one known as the Penrose Triangle) presents a real problem for copyright law (which is how Mr. Schwanitz initially chose to remedy his feelings of aggrievement).
While copyright can protect original expression, how can the law grant someone a copyright in expression based on a single mind-bending illusion? Couldn’t such a copyright also potentially grant control over the idea of the illusion itself? In other words, most optical illusions are essentially the expression of one idea: An idea that can be expressed in a very limited number of ways. And because the idea behind most optical illusions raises thorny issues of authorship and originality - there is an argument to be made that expression (without other evidence of original creativity) of an optical illusion might not be copyrightable.
In theory, copyright should not give an author control over his or her expression if that interest would prevent others from exploring their own expression of a simple universal idea.
Remember: Copyright doesn’t protect ideas.
And, arguably, because idea and expression are so closely linked in many optical illusions, a monopoly over the simple expression of an optical illusion could also grant a unpermissible monopoly over the idea.
But what about unique expressions? Like a unique object based on an optical illusion? Aren't they protectable by copyright?
Is it possible that Mr. Schwanitz’s design is indeed creative, and deserving of a copyright? And that Mr. Tchoukanov’s work does not violate that copyright?
After all, Mr. Tchoukanov’s work is not strictly speaking a "copy" of the Schwanitz design. It wasn't created by copying the file. Instead, Mr. Tchoukanov’s work is arguably an interpretation of an underlying public domain work. Yes. Mr. Tchoukanov was inspired by Schwanitz's design. But the optical illusion they both are working with is almost certainly in the public domain.
This one never went to trial. So we don't know what a court would have done with the arguments on all sides.
Is it a stretch to say that the legal and ethical problems here remind me of the experience of looking at a Penrose Triangle? The merits change and my sympathies shift depending on how I look at it.
What do you think?
Intellectual Property Rights Homework Due March 17th, 2016
READING HOMEWORK:
First please read the short introduction to copyright and trademark law that can be reached by clicking this link.
WRITTEN HOMEWORK:
The written homework for March 17th is to write a short business letter seeking to determine who is the point of contact for acquiring the rights to make a motion picture from a literary property (any book you've chosen that might be the basis for a movie).
The sample letter on this page (you can click on it to enlarge it) shows how your business letter should look on the page.
The instructions for what to put in your letter are on the How To Write a Business Letter tutorial which you can reach via this link.
Don't over-complicate this initial business letter. Your job (to start) is to identify who the rights holder is. That's all. You must, however, present a very professional first impression. That means you must study and follow the directions in the How To Write a Business Letter tutorial for how to structure your letter.
Remember: Keep your letter as short and professional as possible.
For this assignment, you are trying to get the answer to one simple question: Who can help me to find out whether the film rights for ____________ are available? Accordingly, your letter should start with a simple statement of exactly what you want: "I am writing to determine if the film rights to ________ are available."
Note: You should finish your letter by telling the recipient of your letter what you want them to do: "Please let me know who I should correspond with to obtain an option."
NOTE: ALL ASSIGNMENTS FOR INTELLECTUAL PROPERTY RIGHTS AND CONTRACT NEGOTIATION MUST BE NEATLY TYPED IN ENGLISH. YOU MUST ALSO SPELL-CHECK AND USE PROPER FORMAT (see my blogpost about how homework assignments must be formatted). This means that for this homework assignment (even though it is not usually part of a formal business letter) I would like you to add the TO: FROM: DATE: RE: info at the top of your letter.
First please read the short introduction to copyright and trademark law that can be reached by clicking this link.
WRITTEN HOMEWORK:
The written homework for March 17th is to write a short business letter seeking to determine who is the point of contact for acquiring the rights to make a motion picture from a literary property (any book you've chosen that might be the basis for a movie).
The sample letter on this page (you can click on it to enlarge it) shows how your business letter should look on the page.
The instructions for what to put in your letter are on the How To Write a Business Letter tutorial which you can reach via this link.
Don't over-complicate this initial business letter. Your job (to start) is to identify who the rights holder is. That's all. You must, however, present a very professional first impression. That means you must study and follow the directions in the How To Write a Business Letter tutorial for how to structure your letter.
Remember: Keep your letter as short and professional as possible.
For this assignment, you are trying to get the answer to one simple question: Who can help me to find out whether the film rights for ____________ are available? Accordingly, your letter should start with a simple statement of exactly what you want: "I am writing to determine if the film rights to ________ are available."
Note: You should finish your letter by telling the recipient of your letter what you want them to do: "Please let me know who I should correspond with to obtain an option."
NOTE: ALL ASSIGNMENTS FOR INTELLECTUAL PROPERTY RIGHTS AND CONTRACT NEGOTIATION MUST BE NEATLY TYPED IN ENGLISH. YOU MUST ALSO SPELL-CHECK AND USE PROPER FORMAT (see my blogpost about how homework assignments must be formatted). This means that for this homework assignment (even though it is not usually part of a formal business letter) I would like you to add the TO: FROM: DATE: RE: info at the top of your letter.
How a College Student, Offering Creative Commons Licensed Photos, Has Become a Leading Political Photographer in the US
Gage Skidmore is a 22 year old accounting student at Arizona Sate University. He is also a photographer of political figures in the US (that's his image of Donald Trump), whose photos are pervasive on the internet.
Gage Skidmore has taken photos of all the presidential contenders and many celebrities - and traditional journalists aren't entirely happy about the way Gage Skidmore is changing the game:
"Skidmore is a paradigmatic example of the pro-am media ecosystem fostered by the Internet — a professional-level photographer without the means or the interest to become part of the traditional journalistic system."
How did this happen?
As a teenager, too young to drive, and "[a] Ron Paul supporter, [Gage Skidmore] began photographing politicians when he was living in Terre Haute, Indiana, attending events held by Rand Paul during his successful 2010 Senate run in Kentucky. [Then, in 2012] Skidmore also showed up at stops on the presidential campaign trail in order to see Ron Paul and took photos of other prominent Republicans while he was there."
From there, Gage Skidmore has continued to take pictures at political events and also at celebrity-rich events, like Comic-Con.
Why are Gage Skidmore's photos so frequently used?
As described in a Jan. 22, 2016 post to priceonomics, "all of his images are filed under Creative Commons. That is, they are 100% free to use - even commercially - so long as attribution is given."
The Nieman Lab covered Gage Skidmore's growing ubiquity back in 2012, and the interview he gave that Harvard University based journalism foundation was greeted with anger from many professional photographers and their families. A typical comment reads: "Of course bloggers and mainstream news orgs want to use high-quality photos for free. Skidmore not only is undercutting professional photographers, but he's eliminating the need for news outlets to pay for his work in the future."
The Hurt Locker and the Right of Publicity
You may remember The Hurt Locker as a 2010 Oscar winner about an army bomb squad.
But intellectual property lawyers may well remember The Hurt Locker as the case that expanded filmmakers' free speech rights.
On February 17th, 2016, the 9th Circuit rendered an opinion - in a case brought by Master Sgt. Jeffrey S. Sarver, an Iraqi war bomb squad veteran who claimed The Hurt Locker's lead character, Will James, was based on his life. The case turned on Master Sgt. Sarver complaints that (even though he had no contract entitling him to money from the filmmakers) he felt cheated out of "financial participation" in the film. To legally justify his claim for millions of dollars, Master Sgt. Sarver argued that the filmmakers had infringed his publicity rights (more on those below) and defamed him. In 2011, Master Sgt. Sarver lost his case at the trial level. But he appealed. Which lead to the 9th Circuit's Feb. 2016 opinion - a decision which may well result in an expansion of the rights filmmakers can claim in the retelling of real life stories under the First Amendment.
Here's an excerpt of what that California Federal Appeals Court had to say about The Hurt Locker case - and about the tension between an individual's rights to exploit their own fame and a filmmakers' free speech rights:
"The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life - including the stories of real individuals, ordinary or extraordinary - and transform them into art, be it articles, books, movies, or plays."
In reaching that conclusion, the Court had to consider California's "publicity rights" law - a law that protects an individual's right to commercially exploit their name, likeness and reputation.
These right of publicity laws (there is no Federal statute protecting these interests, only a patchwork of state laws) has only been addressed by the U.S. Supreme Court once, in 1977.
In that case (Zacchini v. Scripps-Howard Broadcasting Co.) a local TV news crew filmed and broadcast an entire circus act.
In the Zacchini case, the high Court agreed with the creators of the human cannonball act: Allowing a TV station to broadcast an entire performance (as newsworthy?) would undermine the performer's ability to commercially exploit that act in the future.
To reach their (apparently contradictory?) decision in The Hurt Locker case, the 9th Circuit was at pains to narrow Zacchini's holding, ruling that the Zacchini decision only upholds "the right of publicity in a variety of contexts where the defendant appropriates the economic value that the plaintiff has built in an identity or performance."
In other words, the right of publicity doesn't cover everyone interested in exploiting their real life stories in the media.
After The Hurt Locker case, show biz professionals are still covered by the right of publicity. For example, celebrities can still challenge the unpermissioned use of their images in advertising (as when singer Tom Waits sued Lays for using his onstage persona to sell potato chips or when Wheel of Fortune hostess Vanna White sued over an ad for VCRs).
But apparently private citizens have a much more limited ability to sue filmmakers who use real life events to tell important stories.
In The Hurt Locker case, the 9th Circuit ruled that 1) where an informative piece of entertainment is based on real life events and 2) where the depiction is neither false nor offensive enough to be actionable (e.g., causes emotional distress that sends the plaintiff to the hospital) and 3) where the plaintiff has not been engaged in consciously building up economic value in a marketable performance or identity, then 4) artists like filmmakers can proceed without paying the person or persons who are the inspiration for a film or play.
In other words? If you aren't a professional (or a big-time college athlete?) who has been building a brand around your identity or acts, you may not be able to demand money from filmmakers who've used elements of your real life to create a film. At least under a "right of publicity" theory.
Bottom line? When a real-life story of legitimate public interest is retold in a film or play, and the facts of the subject's life are not colorably part of that person's entertainment industry career and are not construed in ways that are false or irreparably damaging to the real life person's ability to function (e.g., damaging to their health or in finding future work), then it seems filmmakers have a much clearer path to making art based on real life than they did before Master Sgt. Sarver tried to cash in.
After Years of Encouraging Star Trek Fans, Paramount + CBS Sue Them
As reported in the December 30th, 2015 Hollywood Reporter, "For decades, Paramount and CBS have tolerated and even encouraged fans of the Star Trek franchise to use their imagination [to create fan films] at will, but on Tuesday [Dec. 29th, 2015] the entertainment companies went to their battle stations and launched a legal missile at a production company touting the first independent Star Trek film."
Here is a link to the actual complaint that Paramount and CBS filed, alleging that a proposed feature length fan film (and the short proof-of-concept film that Alec Peters has already produced - above) "infringe Plaintiffs’ works by using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes.”
The proposed feature length film at the center of this lawsuit, Axanar, was already at warp drive - well on its way to being the most lavishly produced of all fan-made films.
According to Axanar's executive producer, Alec Peters, Axanar was ready to launch as a full length Star Trek film - indistinguishable in quality from Hollywood films. (To see just how much can be accomplished on a small budget, take a look at the 20+ minute $80,000 pseudo-documentary above, also produced by Alec Peters, known as "Prelude to Axanar.")
The feature length Axanar clearly would not have been your typical backyard fan film - having garnered more than $1 million in crowdfunding via Kickstarter and Indiegogo.
Perhaps the scale of the budget and the support of Star Trek veterans (like George Takei) is what tipped the balance. It's simply not clear what got Paramount's lawyers aiming their starship-mounted phasers at Axanar - after years of leniency. It could be that Paramount and CBS - with Star Trek Beyond coming to theaters on July 22, 2016 and CBS developing their own new television series based on Star Trek for a January 2017 bow on their VOD CBS All Access - might be worried about the competition from what Prof. Henry Jenkins calls participatory culture.
Paradoxically, Paramount and CBS now find themselves in the unenviable position of suing their franchise's most ardent fans. Talk about a no-win Kobayashi Maru situation...
UPDATE: April 30, 2016 Attorney Mark Randazza has filed a delightful and legally relevant amicus brief, arguing that the US Constitution's intellectual property clause (Article 1 Section 8 Clause 8) cannot be used by Paramount to claim ownership of the Klingon language. Mark Randazza's point is that while Paramount Pictures may have a copyright on Star Trek, it can't have a copyright on the Klingon language:
"This is not a case about Defendants using specific, previously used Star Trek dialogue... but rather about precluding Defendants from creating original dialogue that happens to be in the Klingon language."
UPDATE: May 22, 2016 Paramount has apparently decided to drop their legal action against the producers of Axanar. If a May 20th, 2016 post to deadline.com has it right, the director of the latest Paramount Star Trek film (Star Trek Beyond, which will be released in theaters on July 22, 2016), Justin Lin, and producer J. J. Abrams were "apparently instrumental in getting Paramount and CBS to change course." Deadline quotes the following statement from Abrams: “A few months back there was a fan movie and this lawsuit that happened between the studio and these fans, and Justin was sort of outraged by this as a longtime fan. We started talking about it and realized this wasn’t an appropriate way to deal with the fans. The fans of Star Trek are part of this world. We went to the studio and pushed them to stop this lawsuit. Within a few weeks, it’ll be announced that this lawsuit is going away.”"
UPDATE: June 16th, 2016 The lawsuit between Paramount and the Axanar fan film filmmakers may not be over just yet. On May 23rd, 2016 the defendant in Paramount's copyright Star Trek fan film infringement claim, Axanar Productions, had a court deadline to file an answer to Paramount's copyright infringement claim. In that answer, which included a counterclaim seeking declaratory relief that its works are non-infringing under fair use, Axanar pointed to the tweets by J.J. Abrams' (see above) that pointed to a likely settlement by Paramount. But then, surprisingly, Paramount and CBS responded to the May 23rd counterclaim with an answer - admitting their public statements that suggested a potential cessation of conflict - but otherwise acting as though the lawsuit was still moving forward. This strategy is a bit confusing, but might be explained as follows: Apparently Paramount isn't ready to walk away from their copyright infringement lawsuit against the fan film producers just yet - perhaps hoping to exert pressure on what the Axanar filmmakers can do while simultaneously NOT acknowledging the fans' rights to fair use. What is Paramount trying to do? Perhaps they want to hold onto their Star Trek copyright while simply giving permission to these Axanar filmmakers to make a strictly limited (controlled by Paramount) type of fan film. In other words, the goal of fighting the fair use case - while letting these few fans proceed with their film, may be more about solving a temporary public relations problem than really acknowledging a shifting relationship between fans and the franchises. To kill the bad publicity being generated by Axanar, Paramount may have decided (under pressure from, Justin Lin and J. J. Abrams) to let the Axanar producers make their film - without opening the fair use door to other filmmakers.
UPDATE: June 24th, 2016 Yesterday (June 23rd, 2016), CBS and Paramount Pictures issued "Guidelines for Avoiding Objections" for fans making films based on the Star Trek canon. The "guidelines" enumerate a number of creative restrictions (e.g., fan films "must be less than 15 minutes for a single self-contained story," "creators, actors and all other participants... cannot be compensated for their services", total budget for the fan film including all platform fees cannot exceed US$ 50,000, etc.). Aside from that laundry list of restrictions, fan films must also use "only officially licensed merchandise" as props, costumes and set pieces. Wow. This effort by the CBS and Paramount lawyers to control elements of the culture (e.g., parodies that are unquestionably legal and have been recognized as lawful, no matter what the budget or source of the costumes, for centuries) is worthy of derision. My least favorite part may be the final paragraph of the "guidelines" - where "CBS and Paramount Pictures reserve the right to revise, revoke and/or withdraw these guidelines at any time in their own discretion." The big media company's lawyers also made sure to include language at the end that effectively nullifies any legal protection that a fan might have earned by following all of the "guidelines": i.e., "[t]hese guidelines are not a license". If this list of items isn't a license (permission to perform particular acts) and can be revoked after I rely on it to make my fan film, then why I am wasting my time reading it? Shame on CBS and Paramount Pictures. Just so there is no doubt about my position now: I hope fans keep creating fan fiction that goes far beyond these guidelines. Apparently the only way that CBS and Paramount's dunder-headed lawyers will learn how culture and fair use work in the 21st century is if they find themselves on the losing end of a number of valid fair use cases.
UPDATE: June 26th, 2016 Now comes word that one filmmaking project based on the Star Trek storyworld is going to pivot away. Star Trek: Renegades was a fan film that promised to "Boldly going where no Trek has gone before!" Perhaps to the consternation of CBS and Paramount, Star Trek: Renegades (financed on Kickstarter and proudly based upon the Star Trek franchise) promised a "new adventure from the creators of Star Trek." That highly-provocative authorship claim (replaced in subsequent fundraising with the all caps promise of "ALL-STAR CAST OF TREK ACTORS") seems to have been based on the participation of several actors from prior CBS and Paramount iterations of Star Trek. Now, just days after the new guidelines dropped online, the renegade filmmaker/fans seem to have made a choice (the logical choice?) - still going forward but disengaging from an actual battle - announcing via their webpage that they are making the necessary changes to delete references to the canon so that their project - now entitled "The Requiem" - can be "a completely original and ongoing series." Notice: Instead of just one film, these (fully-funded?) filmmakers are making a web series that will still use the same former Star Trek actors, themes and public domain plot tropes (the space fantasy genre that has been explored in licensed Star Trek stories isn't owned by anyone - so plots where a starship captain faces an ethical dilemma, or where logic and emotion cannot be reconciled without sacrifice, or where time travel, world-ending events, or dying astronauts are featured - are still possible even without permission). Perhaps the IP lawyers advising CBS and Paramount will see the announcement by The Renegade filmmakers as a victory. But when Star Trek's most ardent fans are erasing any references to the canon while still making Star Trek-ish films - films that won't necessarily engage new fans with the Star Trek storyworld or keep the actual Star Trek universe infused with their creativity - I anticipate a net loss for the CBS and Paramount portfolio. I know many people won't agree with me (there is no shortage right now of short-sighted fear-mongerers arguing that we'll all benefit from stronger borders) and it will of course be impossible for me to prove the better result I foresaw in my parallel universe (a hypothetical alternate reality, where a different relationship with fan films had unfolded). But after CBS and Paramount take their
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