Monthly Archives: June 2018

Artist Files Completely Frivolous Copyright Lawsuit Against The NRA For Briefly Showing Public Sculpture In Stupid Video

30 June 2018

From TechDirt:

I apologize in advance, but this story is full of frivolous annoying things. Unfortunately, they are frivolous annoying things that hit at the very core intersection of stuff we talk about here on Techdirt: copyright and free expression. Last year, the NRA pushed out a truly ridiculous advertising video, referred to as “The Clenched Fist of Truth” or “The Violence of Lies.” It was a stupid video from a stupid organization which served no purpose other than to upset people who hate the NRA. Trolling as advertising. It generated some level of pointless outrage and people went on with their lives. I’m not linking to the video because I don’t need to give it any more attention and if you really want to see it, you know how to use the internet.

Now, let’s move on to Anish Kapoor, a British sculptor who is also annoying. In the early 2000s, he made a silly sculpture for Chicago’s Millenium Park that people from Chicago (and elsewhere) tend to love to mock. It’s called The Bean. I mean, officially, it’s called “Cloud Gate,” but no one calls it that. Even Kapoor now now calls it the Bean.

However, copyright disputes over the Bean go way back. Back in 2005 there was an article about security guards evicting photographers for taking pictures of the popular tourist selfie photo opp, because the city said it had to enforce the copyright of the artist. No, really. They said that. There’s been a long, and somewhat ridiculous, debate about the copyright on public sculptures. Many of us believe — with pretty damn good justification, I’d say — that if you agree to a commission from a public entity, in which you are creating a sculpture for the government, you should also give up your copyright with it. Barring that, any and all photography of that sculpture in a public place should simply be declared fair use. Unfortunately, courts have disagreed with this — which is unfortunate.

. . . .

However, this week, [Anish Kapoor] took it a step further and filed a really, really dumb copyright lawsuit against the NRA

. . . .

The filing itself screams out how frivolous it is in repeatedly complaining about the political message of the NRA’s video, rather than anything related to the actual copyright related rights at issue.

On June 29, 2017, NRA broadcast on television and the internet a video recruiting advertisement entitled variously “The Clenched Fist of Truth” or “The Violence of Lies”, denouncing the media and the “liberal agenda.” It warns of civil unrest and violence, and states that the only way to save “our” country from the “lies” of the liberal media and the “liberal agenda” is with the “clenched fist of truth,” i.e., with guns (obviously referencing NRA’s previous slogan by Charlton Heston that “I’ll give you my gun when you pry it from my cold, dead hands.”) It is a clear call to armed violence against liberals and the media.

I mean, yeah. But what does that have to do with copyright? Absolutely nothing.

The actual copyright claim is incredibly, laughably weak:

As a result of Defendant’s copyright infringement, Plaintiff has suffered and continues to suffer actual damages in an amount according to proof at trial.

Oh come on. There is no one who is watching that video and thinking that Kapoor somehow supports the message and therefore won’t work with him. Also this:

As a further result of Defendant’s copyright infringement, Defendant has obtained direct and indirect profits it would not have otherwise realized but for its infringement of Plaintiff’s copyrighted Work, including but not limited to increased membership dues following the publication of the Infringing Video. Plaintiff is entitled to disgorgement of such profits,

Nah. That’s not how it works. First of all, if the NRA is profiting from the video, it’s not because the Bean is in it. Take out the Bean, replace it with some other stupid statue and nothing changes at all. There is nothing about the Bean that makes the video. There is no profit because of the use of the Bean imagery.

But the larger point: this is so obviously fair use that it’s not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It’s not key to the video. It’s used as part of commentary.

The nature of Kapoor’s lawsuit, however, is quite obviously to stifle free speech he disagrees with.

. . . .

We’ve talked at length over the years about how copyright often conflicts with free speech. People often respond with some version of “but piracy isn’t free speech.” That’s a silly claim, but there are still cases like this one where the intent obviously has absolutely nothing to do with the purposes of copyright law, but solely as a method to silence speech. The courts shouldn’t allow it and seem unlikely to do so. Kapoor had every opportunity to exercise his First Amendment rights to speak out against the NRA. Filing a frivolous copyright lawsuit attempting to stifle speech, however, goes way too far.

Link to the rest at TechDirt

My three decades at Disney taught me not to fear automation

30 June 2018

From Fast Company:

At a recent conference in Hyderabad, India, I was given second billing to a robot. Not just any robot, mind you, but Sophia, the AI sensation from Hansen Robotics, which has recently been headlining events all over the world. Adding insult to injury, my presentation on creativity and human ingenuity was scheduled to follow directly after the robot. Given the electricity in the air as Sophie prepared to make her entrance, I felt terrified of being eclipsed by a machine.

It’s an increasingly common terror lately. One recent study by Oxford and Yale University researchers suggests that by 2053, robots will beat us at translating languages, writing essays, and conducting surgeries. Worst of all, they expect all human jobs to be automated within the next 120 years.

Disney is by no means averse to technology. In fact, one of the company’s newer high-tech solutions, the Magic Band, uses RFID technology to let guests reserve their favorite attractions and purchase merchandise, and it also doubles as a room key and entrance ticket to the parks. In addition to improving the guest experience (no waiting in lines!), the Magic Band provides a wealth of data to improve real-time operations and plan future products and services. But in my 30 years at Disney, in all the innovative ways I saw technology being deployed, I never witnessed it beat out human ingenuity.

As I stood backstage watching the audience watching Sophia, I found–to my surprise (and selfish delight)–that the crowd’s initial wonder and awe soon turned into nervousness, then visible fear. Sophia was remarkable for everything she could do, but worrisome for everything she seemed to represent for the future of humanity. When I took the stage to remind the attendees of the magic of human creativity and imagination, there was a palpable sense of relief.

The experience, which I will repeat soon in Guatemala, helped reinforce my conviction that robots, big data, and AI, as disruptive and extraordinary as they are sure to be, will never be able to compete with human intuition and the unique and mysterious combination of elements that constitute our emotional intelligence.

. . . .

For as long we’ve been around, humans have sought to express the mysteries of love and companionship, in song, verse, prose, art, film, and more. While robots will surely enhance our abilities and our senses, they can’t yet feel our emotions, nor match the creativity that those emotions spawn.

Link to the rest at Fast Company


Tommy Orange: ‘There’s a monolithic version of what a Native American is supposed to be’

30 June 2018

From The Guardian:

 Tommy Orange is a Native American writer. He teaches creative writing at the Institute of American Indian Arts and his debut novel, There There (Harvill Secker, £14.99), is a New York Times bestseller.

There There is about urban Native American lives. Are these lives and experiences under-represented in fiction?
Yes, you already find Native people in fiction, but there aren’t many representations of us as modern, contemporary and living in cities, so that was definitely something I saw lacking.

. . . .

Did you also want to portray as many different Native urban experiences as you could?
I guess so. There’s a monolithic version of what a Native is supposed to be. Writing a polyphonic, multigenerational novel is resisting this one idea of what being Native is supposed to look like. If we all have to be historical, with a headdress, looking off into the distance, that’s hopeless as far as building a proper, complex, human identity.

Many of your characters are deeply troubled. Why?
I wanted to write characters that felt true and real, and there’s a lot of harrowing detail about the lives of Native people. You can just look at the health statistics and they’re pretty staggering. I wanted the characters to be working-class, because so often the characters in novels that I’ve read are white and upper-middle-class with white, upper-middle-class problems. I didn’t want to go anywhere near the old romanticised view of the Indian as the warrior, the powerful, the unflinching, the brave. That just doesn’t feel whole to me.

. . . .

The novel explores what it means to be Native American today. What does it mean for you?
It’s meant a lot of different things over the years. Currently it means going back to see my dad, who lives in Oklahoma now, and slowly trying to learn the language, because while he’s fluent he didn’t raise us with it. It means making sure my son knows that he’s Native too. It’ll keep meaning more things along the way.

Why didn’t your dad teach you the language?
There’s a lot of pain related to the past, and I think he was wanting a fresh start, wanting to raise us in Oakland and have us figure it out for ourselves. I think if we had been born in the 21st century to a dad who was fluent in Cheyenne, we probably would have been taught it from an early age. But my dad had a lot of pain in his childhood. It was a time of assimilation.

. . . .

What’s the book you most like to give to people as a gift?
Clarice Lispector’s The Hour of the Star.

Link to the rest at The Guardian

“Every Day I Wake Up in a Strange Land”: Remembering the Russian Poet Naum Korzhavin

30 June 2018

From The New Yorker:

A Russian poet died in North Carolina, on Friday. His name was Naum Korzhavin. He wrote three poems that all Russian readers of poetry can quote, and many can recite by heart. Of his ninety-two years, he spent forty-five living in the United States (forty-three of them in Boston, until the death of his wife, Lubov, two years ago; he then moved to Chapel Hill to be near his daughter). Still, he was one of the most significant Russian poets in a century that tragically called forth a lot of poetry.

Korzhavin was born Naum Mandel in a secular Jewish family in Kiev, in 1925. As he pointed out in a memoir, this was eight years after the Russian Revolution, but still a few years before collectivization destroyed life as it had been known in Ukraine, at the cost of millions of lives. Korzhavin’s earliest poems were filled with nostalgia for a revolution whose spirit had already vanished. In 1944, while Soviet newspapers and most Soviet people extolled the heroism of the anti-German offensive, Korzhavin wrote a poem called “Envy,” in which he lamented the unheroic nature of his generation. Written when Korzhavin was nineteen, “Envy” would remain one of his best-known poems.

Three years later, Korzhavin, a student at the Literary Institute in Moscow, was arrested, in the middle of the night, in his dormitory. Some said that Korzhavin was arrested for a poem critical of Stalin. Others said that he fell victim to Stalin’s anti-Semitic campaign against what Soviet papers called “cosmopolitanism.” When Korzhavin wrote about the arrest, forty years later, he described it primarily as absurd. When the secret police woke him up and demanded to see his poems, he recalled, he had nothing to show them: he kept his manuscripts with friends, not because he felt that he had anything to hide but simply because he was incapable of maintaining his own papers. Once he faced his interrogator, he wrote, he subverted the script by earnestly asking what he had done wrong. “I really wanted to know what happened—and what if I had made a mistake and this man knew what it was,” Korzhavin recalled. “Thus I won this idiocy contest. My cultivated sincere idiocy prevailed over his professional idiocy.”

Korzhavin was deemed “socially dangerous,” and sentenced to internal exile. He didn’t return to Moscow until the mid nineteen-fifties. He was thirty-four when he finally graduated from college. He had grown disillusioned with the revolutionary myth and the entire Soviet project. It was only a matter of time before his poems and public statements got him forced out of the Soviet Union. Korzhavin landed in Boston in 1973.

. . . .

Could it be that I’ve fallen out of love with my country?
I would die without it, but this is no life.
Should I run? Nonsense. Running won’t help
Someone who has fallen out of love with his country.

. . . .

Now it’s light, now it’s a shadow,
Now it’s night in my window.
Every day
I wake up in a strange land.

Into a strange near,
Into a strange distance I look,
Into a strange life
I descend the stairs.

Link to the rest at The New Yorker

It is always a temptation to an armed and agile nation

30 June 2018

It is always a temptation to an armed and agile nation
To call upon a neighbour and to say: —
“We invaded you last night–we are quite prepared to fight,
Unless you pay us cash to go away.”

And that is called asking for Dane-geld,
And the people who ask it explain
That you’ve only to pay ’em the Dane-geld
And then you’ll get rid of the Dane!

It is always a temptation for a rich and lazy nation,
To puff and look important and to say: —
“Though we know we should defeat you, we have not the time to meet you.
We will therefore pay you cash to go away.”

And that is called paying the Dane-geld;
But we’ve proved it again and again,
That if once you have paid him the Dane-geld
You never get rid of the Dane.

It is wrong to put temptation in the path of any nation,
For fear they should succumb and go astray;
So when you are requested to pay up or be molested,
You will find it better policy to say: —

“We never pay any-one Dane-geld,
No matter how trifling the cost;
For the end of that game is oppression and shame,
And the nation that pays it is lost!”

Rudyard Kipling

Fair Use and Political Speech

29 June 2018

From Hyperallergic:

On June 19 of this year, artist Sir Anish Kapoor, a knighted and “renowned visionary sculptor,” filed a copyright infringement claim in the United States District Court for the Northern District of Illinois, Eastern Division, alleging that the National Rifle Association (NRA) used a fleeting image of one of his sculptures without permission in a video in order to “support its despicable platform of promoting violence, private ownership of all manner of firearms in the United States, including military assault weapons, and using its money and political power to block any kind of meaningful gun control.”

The NRA video, versions of which have been on YouTube since April 7 and June 30 of 2017, is alternately titled “Freedom’s Safest Place,” “The Violence Of Lies,” and “The Clenched Fist of Truth.” It features commentator Dana Loesch presenting what appears to be a critique of American liberalism and calling on NRA members to “fight this violence of lies with the clenched fist of truth.” For a second at the 0:17 mark, it shows a snippet of black-and-white footage of architecture, nature and crowds milling around Sir Anish’s “Cloud Gate” (2006).

Normally we would have another run-of-the-mill copyright and appropriation dispute concerning art. However, what is a bit unusual about this dispute is how Sir Anish chose to voice his politics and disagreement with the NRA by availing himself of US Copyright law. Whether Sir Anish should leverage a law meant to foster and incentivize creativity and debate to instead silence and censor speech is the question before us. Put another way, does US Copyright law grant a copyright owner the sole and exclusive right to control how their copyrighted work is used?

In general, the answer is yes. Under the US Copyright Act of 1976 (the Copyright Act), the owner of a copyrighted work has, among other rights, the exclusive right to (a) make and authorize reproductions of the work, (b) make and authorize derivative works based on the copyrighted work, (c) the distribution of copies of the work by sale, rental, lease, lending, or transfer of ownership, and (d) publicly display and authorize the public display of the work.

The Copyright Act does not, however, grant a copyright holder the right to keep a third party from using the copyright holder’s work based on the political nature of that third party’s speech. The reason for this is found in fair use doctrine of the Copyright Act.

Established primarily to address constitutional and free speech concerns under the First Amendment, fair use allows for certain exceptions as to how copyrighted works may be used by third parties. The fair use doctrine allows for certain uses of a copyrighted work without consent of or notice to the copyright owner for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. Whether any given use constitutes “fair use” is evaluated on a case-by-case basis using the following four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work (i.e. how factual or fictional is the copyrighted work), (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market. These factors are non-exclusive.

Ordinarily, most copyright infringement cases would hinge on a thorough fair use analysis, but there is another defense to a copyright infringement claim that the law calls de minimis use exception, where a court does not go through a full fair use analysis because the amount of the material copied is so minimal.

De minimisin law is a shortened version of the Latin phrase “de minimis non curat lex,” which basically means “the law does not concern itself with trifles.” When applied to copyright law, de minimismeans that courts are not going to concern themselves with trivial copying.

Built into copyright’s substantial similarity inquiry, a de minimis analysis looks at both the amount and character of the copying through the eyes of the “average lay observer.” As with other copyright disputes, there are no bright line rules and the questions at hand must be decided case by case. Imperfect, perhaps, but the de minimistest serves a vital function, articulated best by federal appellate judge Pierre Leval, “Parents in Central Park photograph their children perched on Joséde Creeft’s Alice in Wonderland sculpture … When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law.”

The Copyright Act also does not stipulate that a third party must first ask for permission before raising the fair use defense. In fact, Sir Anish’s insistence that he would “never have granted [the NRA] permission” to use his work for the NRA’s video is precisely why fair use exists.

Link to the rest at Hyperallergic

Here’s a link to the video in question. PG will warn some visitors that the video is intensely partisan in its support of the National Rifle Association’s political beliefs.

Here’s an excerpt from a New York Times Op-Ed written by law professor Lawrence Lessig and published in 2008:

Throughout this election season, Americans have used the extraordinary capacity of digital technologies to capture and respond to arguments with which they disagree. YouTube has become the channel of choice for following who is saying what, from the presidential campaign to races for city council.

But this explosion in citizen-generated political speech has been met with a troubling response: the increasing use of copyright laws as tools for censorship.

A recent dispute in a race for New York State Assembly is a perfect example. A Democrat, Mark Blanchfield, is challenging the Republican incumbent, George Amedore, in the Assembly district that includes the upstate New York city of Schenectady. Last month, Mr. Blanchfield released television and radio advertisements that included a clip from a video interview with The Albany Business Review in which Assemblyman Amedore said, “I don’t look at the Assembly position as a job.”

Mr. Amedore complained that the ads took his remark out of context, and the newspaper’s lawyers sent Mr. Blanchfield letters calling the ads “an infringement of our client’s exclusive copyright rights” (redundancy in the original), and threatening Mr. Blanchfield if he didn’t cease using the material. Never mind that Mr. Blanchfield’s use couldn’t possibly have harmed the financial interest of The Albany Business Review. Whatever the newspaper’s motive, the result is the censorship of Mr. Blanchfield’s campaign.

This problem isn’t limited to New York Assembly races. It has directly affected the presidential campaigns. Last year, Fox News ordered John McCain to stop using a clip of himself at a Fox News-moderated debate. Last month, Warner Music Group demanded YouTube remove an amateur video attacking Barack Obama that included its music, while NBC asked the Obama campaign to pull an ad that included some NBC News video with Tom Brokaw and Keith Olbermann. No doubt, these corporations are simply trying to avoid controversy or embarrassment, but by claiming infringement, they are effectively censoring political speech.

Senator McCain has taken a lead in responding to this copyright extremism. In a letter addressed to YouTube last week, the McCain campaign rightly criticized the Web site’s decision to remove work that is “clearly privileged under the fair use doctrine” of copyright law and called upon YouTube to be more protective of political speech by conducting a more extensive review of material before it gets taken down.

. . . .

The digital copyright act gives the alleged infringer an opportunity to demand that the content be restored. But in the height of a political campaign, even a few hours of downtime can be the difference between effective and ineffective. The law thus creates a perfect mechanism to censor political speech during the only time it could matter. Recognizing this, campaigns and their allies are beginning to exploit this weapon.

. . . .

What content owners need to recognize is that in the long run, it’s unwise to ask for a definition of “fair use” in the middle of a presidential campaign. Judges are very unlikely to find copyright infringement in a political ad, and a law of “fair use” expanded to allow such uses could well weaken the legitimate claims of musicians and Hollywood studios.

It would be far better if copyright law were narrowed to those contexts in which it serves its essential creative function — encouraging innovation and ensuring that artists get paid for their work — and left alone the battles of what criticisms candidates for office, and their supporters, are allowed to make.

Link to the rest at The New York Times

If PG ruled the world, he would substantially dimish the use of lawfare in politics. If you’re not familiar with the term, lawfare, here’s one definition:

Lawfare is a form of asymmetric warfare,consisting of using the legal system against an enemy, such as by damaging or delegitimizing them, tying up their time or winning a public relations victory. The term is a portmanteau of the words law and warfare.

Carl von Clausewitz famously said, “War is the continuation of politics by other means.” Unfortunately, in contemporary western societies sometimes “Politics is the continuation of war by other means.”

Regardless of one’s personal feelings about gun rights under the Second Amendment of the United States Constitution, the NRA commercial referenced above certainly conveys a sense that the NRA believes it is at war with its political opponents.

PG knows nothing about Sir Anish Kapoor or his reasons for filing his lawsuit for copyright infringement, but PG does have his doubts about whether Sir Anish has suffered significant financial damage as an artist from the NRA’s very brief inclusion of his public artwork in the commercial.

The practice of filing a legal action against a political opponent is, unfortunately, becoming more and more common. Sometimes, the real purpose of such litigation is not to take a dispute through trial and appeal to vindicate a significant legal right so much as it is to cause the opponent to lose focus on the political campaign and divert scarce funds from campaigning to paying expensive lawyers. Hence the common practice of dismissing or abandoning such lawsuits after the election is over.

PG will remind one and all that:

Passive Guy is an attorney, but he does not provide legal advice on this blog. He is most definitely not your attorney unless you and he both sign a retainer agreement. Only then will he give you legal advice and it will be delivered privately, not in a blog post.

Passive Guy’s rants, examples of contract language, discussions of litigation issues, etc., are for discussion purposes only. What PG says may not be appropriate for your circumstances and may make your problems worse instead of better. PG’s ideas may ruin your life, cause bolts of lightning to strike you dead or trigger premature balding. Talk to your lawyer before you use any legal ideas, contract language, etc., etc., etc. that are discussed on this blog. You obtain legal advice from an attorney you hire, not a blog.


Now bless her little soul, she’s not to blame

29 June 2018

Now bless her little soul, she’s not to blame
That’s just the way her mind is
If there’s a way to stir trouble up
The girl was born to find
She’s the queen
She’s the queen

The queen of my double wide trailer
With the polyester curtains and the redwood deck
Sometimes she runs off and I’ve gotta trail her
Dang her black heart and her pretty red neck.

Sammy Kershaw

The Motivations to Create

29 June 2018

From The Social Science Research Network (SSRN):


Economists have long debated the degree to which inventive and artistic activities were either the result of instinctual urges on the part of creators, or the responses of creators to potential pecuniary rewards. Copyright and patent laws are based on a view that rewards are an important factor. In this paper we attempt to provide an empirical analysis of this question by using a recent data set covering the book production industry. We find evidence that authors publish more new books when they earned higher payments for previously written books, although at high enough levels of payment their production of new works begins to decline, consistent with a backward bending supply function. We also find that few authors are in the backward bending region and that the overall effect of payments to authors is to increase their output. Our results are also consistent with the belief that instinctual elements may play a large role in the creation of books.

Link to the rest at SSRN

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