Copyright/Intellectual Property

The Investment Firm That Commissioned Wall Street’s ‘Fearless Girl’ Is Suing the Artist for Making Replicas

20 February 2019

From ArtNet News:

Fearless Girl, the bronze statue that immediately went viral after it was installed in downtown Manhattan two years ago as a symbol to promote gender diversity on Wall Street, is now at the heart of a trademark and breach of contract lawsuit.

State Street Global Advisors, the Massachusetts-based investment company that commissioned Fearless Girl, filed a lawsuit against its creator, Delaware-based artist Kristen Visbal, on February 14 in New York State Supreme Court.

State Street says that the artist has made at least three unauthorized reproductions of the statue so far: one for Maurice Blackburn, an Australian law firm that specializes in personal injury, class actions, and financial services; one for real-estate investor Christian Ringnes, who is the owner of the Grand Hotel in Oslo; and a third statue that Visbal brought to the Women’s March in Los Angeles last month.

. . . .

State Street wants to “safeguard its interests” in the Fearless Girl statue and uphold the message it stands for, the company says in its complaint, alleging that Visbal’s unauthorized reproductions could damage its status in a global campaign to support corporate gender diversity and female leadership.

Link to the rest at ArtNet News

A word on State Street’s behalf – The owner of a trademark can lose its rights to exclusive use of the mark if it fails to defend the mark when it is improperly used by others. Trademark infringement is fairly self-explanatory. Trademark dilution permits the owner of a mark sue someone who is using the mark in a manner that dilutes the distinctive quality of that mark, either through “blurring” or “tarnishment” of that mark.

Here’s a photo of Fearless Girl:

The full meaning of Fearless Girl also includes the statue’s location vis-à-vis another famous Wall Street statue, Charging Bull.

Digitized Images of Works in the Public Domain: What Rights Vest in Them?

19 February 2019

From IPKat:

A few days ago the German Federal Court of Justice (BGH) released the full text of its recent judgment concerning protection of digitized versions of public domain images. The IPKat is delighted to host, in two posts, the analysis provided by Tobias Lutzi (Research Fellow at the University of Cologne), and John Weitzmann(General Counsel at Wikimedia Deutschland e. V. in Berlin), respectively.

Here’s what John writes:

Note: The German Wikimedia Chapter had also been defendant in this case, but was acquitted by the court of first instance, while parallel proceedings against the US-based Wikimedia Foundation as service provider of the Wikimedia Commons platform are still on-going at the High Court of Berlin. 

. . . .

From the perspective of the Wikimedia Movement, the most disappointing aspects of the judgment are its treatment of § 72 UrhG, putting additional means of control over public domain works in the hands of those cultural heritage institutions, that regard control as an integral part of their public mission. As mentioned by Tobias here, it is highly questionable whether publicly funded museums should even consider using injunctions to go after digital copies of public domain works they hold in their collections.

If private owners of artworks are involved, there might be an argument for control on behalf of such private interests, in order to get the respective works into museums and before the public’s eye in the first place. But to limit the visibility of publicly owned works of art in any way, to leverage related rights in photographic depictions even with public domain works, can hardly be anything but a gross misunderstanding of the role and mission public cultural heritage institutions have. Such institutions must do anything within their power to hold as much of our cultural heritage in the public’s awareness, including on the internet, and therefore must not hide or withdraw public domain works from the public’s conscious perception.

. . . .

In all this, the judgment in the rem case almost tragically brings to bear the fundamental flaw of the hybrid rule that the German legislator produced by legally synching the neighbouring right in photographs, § 72 UrhG, to the proper copyright in photographic works, § 2 UrhG, in the 1960s. The intention behind this synching was a well-meaning one at the time: Parliament wanted to relieve judges of the close-to-impossible task of discerning non-original photographs from those that are actual works of art. Thus, § 72 was amended to let the same rules that apply to photographic works of art simply also apply to non-original photos – with the one exception of the protection term, which is shorter for non-original photos, lasting only 50 years after publication, whereas photographic works are protected until 70 years after the death of the photographer.

. . . .

[T]he High Court of Stuttgart had argued that even the meticulous reproduction photos in question (i. e. the ones made by the museum’s photographer for a catalogue that had later then been scanned by the defendant and uploaded to the Wikipedia’s media archive Wikimedia Commons) were not “mere technical reproductions”, but represent …

[22] (…) an independent new fixation into a new work form [and are photographs] initially made with creative intention. [own translation]

Now, one does not need to share the infamous fondness of dogmatic detail present in German civil law to find it odd that a second instance court introduces terms like “work” and “creative intention” (in German: “Schöpfungswillen”) when actually speaking about a neighbouring right in photographs. Usually, under German copyright law the term work (“Werk”) is much more narrowly than in the Anglo-American tradition reserved for works of authorship. That is the very reason de être of all those neighbouring rights in “non-works” in the first place. There’s a whole universe of arguments about the special bond between the work and its creator, and why that bond is so very special and valuable, even producing unwaivable moral rights.

. . . .

[C]an there actually be such a personal intellectual contribution or achievement in a photograph if the subject of the photograph is entirely fixed?

It can’t be stated enough: The content of reproduction photos is fixed in all thinkable ways. By definition they must as exactly as possible give the same impression as the works they depict, nothing added and nothing taken away. How can those repro photographs be more than “mere technical reproductions” if all the photographer can work with are shutter time, light, aperture and such – all of which go beyond technical in nature only if and where they are tools for creative expression? It must be emphasised yet again that any kind of creative expression is forbidden for repro photographers, who in this role strictly have to limit themselves to replicating the visual impression the object reproduced makes on viewers.

. . . .

[T]he pictures are indeed limited to getting the technicalities right to carry the exact impression of their object, being repro photographs in the proper sense. In that case, however, they can’t qualify as more than technical reproductions – very elaborate reproductions, one might add, that require a lot of expertise to make, but still reproductions.

. . . .

So, how can a tech-and-expertise-only reproduction photo still be covered by a neighbouring right that does not cover mere technical reproductions? The apparent contradiction is solved by invoking an additional criterion. The Court itself, turning to legal scholarship, established in 1989 (I ZR 14/88) the notion that only the first-stage exact photographic depiction taken of any subject is legally worthy of a neighbouring right protection, while further photos taken of this first photo are not and are seen as mere reproductions. This so-called “Urbildtheorie” has no explicit foundation in the wording of the German Copyright Code. It is purely a development of the law (in German “Rechtsfortbildung”) through judicial deduction and interpretation.

. . . .

There are paintings made by artists a long time ago, and exact photographic depictions of those paintings, protected under a neighbouring right because they are taken directly from the public domain works in the museum. However, had those artists of old used photography instead of brush and canvas to express their creativity, equally exact photographic depictions of such works of photography would not be covered by related rights. In other words, an exactly matching photo of a painting is protected, while an equally exactly matching photo of a photographic work is not.

Link to the rest at IPKat

Here’s a link to the first part the IPKat summary.

PG agrees with the criticism of the decision contained in the commentary (although he claims no expertise in German law).

The fundamental structure of copyright law in the US and, via international treaties, many other places, is based upon the proposition that the creator of an original intellectual property (painting, book manuscript, sculpture, for example) should have the exclusive ability control the exploitation of that property via copying or creation of derivative works for a period of time. An author can prevent someone from replicating the contents of a manuscript without the author’s permission, for example.

Once the copyright term has expired, the creator’s rights under copyright law expire as well.

The rationale for providing an ability to prevent a non-author from simply copying the work of an author, then exploiting it commercially or otherwise is that society in general is benefitted if creators are encouraged to create and share their creations by allowing them the exclusive right to profit from those creations. If there were no effective right for a creator to profit (monetarily, through enhanced reputation, etc), he/she would have to take a job at McDonalds flipping burgers for material support and thus would have less time to create and could well give up the creative activity altogether. Or a great artist would make paintings and never allow anyone to see them so the artist would avoid having others make copies of the products of the artist’s works of genius.

In exchange for a creator being permitted to prevent others who admired a work from simply making a copy of it for their own enjoyment or for commercial exploitation (a natural human instinct) and bring the creations into the public sphere for the artist’s exclusive benefit, the creator’s right to prevent the public from making knockoffs or derivative works was time-limited. Society would protect the creator’s work from reproduction for a period of time so the author could profit and society would benefit from being able to enjoy the work right away, but eventually, the creator’s exclusive rights would expire so other creators or non-creators could use the work for all sorts of new and interesting purposes.

However, intellectual property must have a meaningful element of originality to be protected. If I pick up a rock and paint it red, then seek to prevent anyone else from commercially exploiting rocks painted red, I’ve done something unoriginal and obvious, not truly new or unique or creative. The same analysis would prevent me from copyrighting the words, “and they lived happily ever after.”

With that rambling foundation, why was the German court so wrong?

The artist who created the painting that is now in a German museum owned the copyright to the original painting. The clock was ticking on the copyright’s exclusive period of protection. Presumably, when the artist sold or gave the painting to someone else, the person who acquired the painting acquired the associated copyright, including the right to exercise the rights granted under copyright law in the same manner as the original artist could.

(It is possible for the artist to retain the copyright, while only selling the painting itself, but absent some sort of clearly documented agreement to that effect, the copyright is presumed to go with the painting. This is why authors should only license their copyrights rather than assigning them to publishers unless the publishers pay a large lump sum (not an advance against royalties) up front. If the publisher fails to pay royalties and the publisher owns the copyright, the author has a more difficult time reverting rights to him/herself. An artist who creates a painting is more likely to sell a painting to someone who wants to own it and who pays to acquire the painting rather than agreeing to pay the artist a certain amount for each copy of the painting the purchaser might or might not make.)

What (in PG’s inarticulately expressed opinion) can a museum that has just acquired a painting for which the artist’s copyright has expired do if the museum wants to profit from selling copies of the painting?

The museum could do what the original artist could do, not show the painting to anyone to prevent copying.

Or, the museum could prohibit anyone from bringing a camera into the museum and search pockets/purses, etc., to make certain everyone complies. Or a museum could bind visitors to a contract under which visitors agreed they would not take photos of the painting and further agreed that they would pay the museum $1 million in damages if they violated the contract.

In the German case, the court held that the museum could make a photograph — a copy — of a painting that is no longer protected by copyright, claim a copyright in the photo, then use its copyright of the photo to prevent other people from making, publishing, selling, etc., copies of the original painting because doing so would be the same as making a copy of the museum’s photo of the painting.

In addition to the arguments cited in the OP (a perfect copy of the painting made via a camera does not include elements of creativity to sufficient for the photo to be entitled to copyright protection), PG suggests permitting a photo of an original painting that is not protected by copyright to be copyrighted as if the photo were its own separate creative work, thus starting a new period of copyright protection that prohibits copies of the painting to be made and sold without the permission of the museum is the most slippery of slippery slopes.

When the copyright on the photo is nearing expiration, could a future technology that is not like a camera be used to make another copy of the painting, thus generating a new period of copyright protection that would continue to prevent anyone other than the museum from making copies of the then way, way, way out of copyright painting?

How about using the new technology to make a new copy of the previous copy of the museum’s copyrighted photo and claim a new period of copyright protection on the same basis the court recognized a perfect copy of the original painting to form the basis for a separate copyright – that the operator of the new technology made adjustments necessary for the use of that technology to make another perfect copy?

The museum claimed all of the things the photographer did in order to make a perfect copy – setting the camera properly, lighting the painting just so, etc., represented new creativity that was incorporated in the perfect copy of the painting.

In the United States, this argument would be termed as a claim of copyright based upon “sweat of the brow” activity. See Genesis 3:19 – “In the sweat of thy face shalt thou eat bread, till thou return unto the ground”

From Wikipedia:

According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or “originality” is not required.

Under a “sweat of the brow” doctrine, the creator of a copyrighted work, even if it is completely unoriginal, is entitled to have his effort and expense protected, and no one else may use such a work without permission, but must instead recreate the work by independent research or effort. The classic example is a telephone directory. In a “sweat of the brow” jurisdiction, such a directory may not be copied, but instead a competitor must independently collect the information to issue a competing directory. The same rule generally applies to databases and lists of facts.

Link to the rest at Wikipedia

This argument was rejected by the US Supreme Court in  Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991).

Discussing the principle that facts are not copyrightable, but that compilations of facts can be, the Court said,

Article I, § 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable. Although a compilation of facts may possess the requisite originality because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively, copyright protection extends only to those components of the work that are original to the author, not to the facts themselves. This fact/expression dichotomy severely limits the scope of protection in fact-based works.

Applied to the German case, if the photographer’s objective and accomplishment was to make as perfect a copy of the original painting as is possible using current technology, then, if copyright protection extends, per Feist, only to those components of the photograph that are original to the photographer, not to the components of the photograph that are original to the artist who created the original painting, there is no copyright to a perfect copy of the painting.

If the photographer had used the camera to make a photo that looked different from the original painting, substituting red for blue, for example, an argument for originality might be reasonable and anyone else making a copy of the red/blue photo might be violating the museum’s copyright on the photo.

But a perfect copy of the original painting includes nothing original to the photographer. Anything the photographer might have done that isn’t reflected visually in the resulting photograph doesn’t indicate anything original to the photographer is protected in the perfect copy. PG would argue that even trivial differences between the photo and the painting that result from the transfer of the image from one medium to another don’t constitute originality necessary for copyright protection.

Following is an English version of the German Court decision (per Google translate – PG does not speak German, so he can’t vouch for any level of accuracy)

A1 - BUNDESGERICHTSHOF

Instagram Celebrity faces another Copyright Infringement Claim after posting picture of herself on Instagram

15 February 2019

From The IPKat:

Social media is a real spanner in the IP works, since it’s all about sharing content that IP is in the business of restricting. Social media platforms were crowned a haven for counterfeited goods by the UK IPO report Share and Share Alike, and they can also cause havoc for copyright holders as their content is shared without permission, not to mention the dubious terms and conditions! Recently GiGi Hadid has found herself in the hot seat for sharing images on Instagram, and not for the first time. Here’s the latest:

GiGi Hadid (Jelena Noura Hadid) is an American fashion model, named International Model of the Year by British Fashion Council.  She has modeled for Versace, Chanel, Elie Saab, Fendi, Marc Jacobs, Anna Sui, Miu Miu, Balmain, Diane Von Furstenberg, Tommy Hilfiger, Fenty, Puma, Isabel Marant, and Giambattista Valli and has appeared on the covers of magazines such as Vogue.

Hadid manages her own Instagram account, which has over 44 million followers worldwide. On 12 October 2018, she posted a picture of herself to her Instagram account. The copyright holder of the image in question, which was captured on October 11, 2018 in New York City is Xclusive (a photo agency that represents over 40 photographers worldwide).

Xclusive have now brought a civil complaint against Hadid in the United States District Court for the Eastern District of New York seeking a trial by jury and damages for copyright infringement.

. . . .

In the claim Xclusive argue that Hadid’s Instagram account includes at least fifty (50) examples of uncredited photographs of Hadid in public, at press events, or on the runway, posted by Hadid without license or permission from the copyright holder. The claim states that Xclusive believes these acts of infringement are willful and intentional, in disregard of and with indifference to the rights of copyright holders.

. . . .

A similar situation occurred when Khloe Kardashian posted a photo of herself on her Instagram, also owned by Xposure Photos in 2017. Xposure filed the complaint in the U.S. District Court for the Central District of California, stating that posted the photograph along with the caption ‘going for a meal at David Grutman’s Miami restaurant, Komodo’ in September 2014, without a licence from the copyright holder. The Photograph was taken by Manual Munoz and licensed for limited use to The Daily Mail, which published it on 13th September 2016 together with a copyright notice and watermark. The following day the photo was posted on Kardashian’s Instagram account, with the watermark removed. Similarly, according to a March 2018 mediation report, the case was “completely settled.”

These previous cases didn’t deter Hadid from continuing to post photos of herself on her social media platforms. She even posted this argument about the situation on her Instagram: “Yesterday I heard from my management that I am being ‘legally pursued’ for my last (now deleted) Instagram post…sue me for a photo I FOUND ON TWITTER (with no photographer name on the image) for a photo he has already been paid for…”

She goes on to say:

 To all the fan accounts being taken down and being sued themselves…to the photographers… demanding money from young fans…is just wrong.

This raises the broader issues of the confusion and tension of copyright uses on social media, celebrities right to control their image as well as the classic tensions between paparazzi and privacy. Whilst the US recognises some personality rights, consent is not required for the “use of a name, voice, signature, photograph or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign”. Some might consider it a fair trade-off for living the life of a celebrity. In the social media and influencer age, it is more common and lucrative than ever to be using one’s own image for remuneration.

Link to the rest at TheIPKat

As the OP indicates, there is a tension between what might formerly have been called “free publicity” for a celebrity and the money a celebrity (or other dedicated self-promoter) can earn directly from their own social media account.

If you search Google for How to Make Money on Instagram, you will discover that there are many ways to do so.

Here’s a summary:

1. Become an influencer and make money from sponsored posts.

With your influencer status, you can propose to brands to help to promote them in your posts. An influencer is someone who has built a reputation by doing and sharing things online. They have a good following and they are able to convince their audiences about trends because of the level of trust they have built with their online presence.

. . . .

2. Become an affiliate and make money selling other people’s products.

You can sell other people’s products and receive a cut. Many brands sell their products through affiliate programs. There are many people that make money from Instagram this way.

. . . .

3. Sell poster photos and other virtual products.

Instagram is all about visual content. Photogenic products would sell well on Instagram. You can sell poster photos, paintings, drawings, animations, videos, and other image or video-based virtual products. On each post, refer readers to visit the link in your bio. This is another popular way that people make money from Instagram.

. . . .

4. Sell your own physical products.

You can sell any physical product that you produce yourself or purchase from suppliers. This conventional ecommerce retailing usually requires stocking some inventory, meaning you’d need to spend some startup capital to stock some products.

. . . .

5. Sell dropshipped products.

Dropshipping is a business model which you can use to run your store without ever holding any inventory. Once you’ve made a sale your supplier will ship your products from their warehouse, straight to your customer’s doorstep. You’ll never need to worry about storing, packaging, or shipping your products.

Link to the rest at Oberlo

PG is entirely unfamiliar with GiGi Hadid, but notes that some public personalities are known for their talents in other fields, often in the performing arts, while other public personalities are known because they are famous for being known (see almost anyone named Kardashian, for example).

How much can you earn from Instagram?

This question was posted on Quora and the responses from answers receiving the most upvotes include the following:

The best social media influencers can earn up to tens of thousands for a single sponsored post. For an instanceif an influence has a few million followers it is most likely that they earn up to 10K per a post. If the following is something under a million, the estimated numbers are between $500-$1500 per a sponsored post.

. . . .

The market rate has settled at approximately $10 per CPM (cost per thousand impressions). The standard assumption is that only 10% of followers see any given post. That means that if you have 50K followers, you will have 5K impressions (50K x 10%) – or be paid $1 per 1,000 followers – and make a total of $50 per post. However, these rates are more for raw numbers of followers. Popular influencers with online communities that put their name and reputation behind something can charge a premium for it.

I have experienced a wide range, but as mentioned above, the average influencer with a blog and/or any sort of loyal following makes 10x this amount per post. Basically, they get the same ~$10 CPM, but without the 10% adjustment. You can expect to make $500 for a post if you have 50K followers. You can easily make $10,000 if you have 1 million followers.

. . . .

Gabrielle Epstein, 21, said she earns more from posting a selfie than she would working four days as a regular model. The 21-year old has almost 800,000 followers on the social media site, and cannily mixes her feed with fun-loving pics of her everyday life alongside product placements.Each post can generate up to 25,000 likes, with companies keen to piggy back on Gabrielle’s popularity by getting her to endorse their product.

. . . .

I know plenty of influencers who hit 100K followers and then quit their jobs.

We’re looking at conflicting legal interests here.

A photographer is making creative work in which he/she has an interest protected by copyright law in the same general manner as the author of a novel or short story or the artist who creates a painting. The individual who creates the work is, generally speaking, the owner of the work. The creator has the exclusive right to control the use of the work, enter into agreements that permit others to use the work, etc.

On the other hand, there is a difference between taking a photo of a sunset at the beach and taking a photo of an identifiable person. The sunset has no legal rights, but a person may.

From Wikimedia Commons:

When dealing with photographs of people, we are required to consider the legal rights of the subject and the ethics of publishing the photo in addition to the concerns of the photographer and owner of the image. These former issues are quite distinct from the copyright status of the image and may restrict or impose obligations on those taking, uploading or reusing a photograph. A Creative Commons licence or public domain status, for example, means that the photographer (or other owner) has waived or lost certain rights and that their permission to use the image is not required. However, the photographer is not able to remove any rights belonging to the subject of the photograph.

The subject’s consent is usually needed for publishing a photograph of an identifiable individual taken in a private place, and Commons expects this even if local laws do not require it. In many countries (especially English-speaking ones) the subject’s consent is not usually needed for publishing a straightforward photograph of an identifiable individual taken in a public place. However, the term “publishing” should not be construed to include commercial use, as consent is usually required in these situations. Moreover, the country specific consent requirements vary. Many factors can determine whether and what degree of consent is required.

. . . .

There are two forms of personality rights that govern the taking, hosting and use of photographs where the subject is a living person: the right of publicity and the right of privacy. Care should also be taken not to defame the subject.

. . . .

The right of publicity is the right to control the commercial use of one’s likeness. The most obvious example of this is in advertising (and it applies whether or not the advertisement itself is for commercial purposes). This right concerns the subject of the photograph and is distinct from the photographer’s copyright license which may impose its own terms or grant freedoms regarding commercial reuse.

. . . .

The right of privacy is the right to be left alone and not to be made the subject of public scrutiny without consent. The right to privacy is enshrined in several international laws though the details with regard to photographs vary from country to country. Images must not unreasonably intrude into the subject’s private or family life.

The law on privacy concerning photographs can be crudely divided into whether the photograph was taken in a private or public place. A private place is somewhere the subject has a reasonable expectation of privacy while a public place is somewhere where the subject has no such expectation – the terms are unrelated to whether the land is privately or publicly owned. For example, a tent on a beach is a private place on public land and a concert is a public place on private property. A place may be publicly accessible but still retain an expectation of privacy concerning photography, for example a hospital ward during visiting hours. Whether the place is private or not may also depend on the situation at the time: for example that same hospital ward would have been a public place during a tour before it opens.

Link to the rest at Wikimedia Commons

In a number of countries, consent is needed for just taking a photograph of one or more identifiable people, not to mention publishing it and/or using it commercially even if the person is in a public place. Here’s a country-specific list of consent requirements from Wikimedia Commons. PG notes that, in the United States, some individual states have state-specific laws that apply to photographers. See, for example, Texas Penal Code § 21.15. Invasive Visual Recording.

In the United States, most of the laws relating to taking photos of others without the express consent of the subject of the photos were established long before the existence of Instagram and cell phone cameras.

In the days when quality photos were made by professional photographers with Graflex cameras and movie stars were mostly happy when their pictures appeared in magazines or newspapers because it was good for ticket sales, the balancing of interests between the photographer creating a photo and the subject of that photo was less complex than it is today.

Back to the OP, it is unlikely that GiGi Hadid gave her express consent for the photographer to create the original photo and she certainly did not provide explicit consent for Xclusive, the photo agency, to have the exclusive right to license her image in the photo to others.

Absent Ms. Hadid’s 44 million Instagram followers, a photo of her would be much less valuable as content for The Daily Mail, so the likelihood of either the photographer or the photo agency receiving as much of a license fee would be much lower.

Indeed, Ms. Hadid almost certainly earns a larger income from Instagram, based upon her personality (and valuable personality rights licenses) than she does from being a fashion model, so preventing her from using the photo deprives her of the type of material that generates most of her income without her express consent. Under the arguments made by Xclusive, only the photographer is entitled to reap any income from Ms. Hadid’s image.

 

 

How AI Will Change Authorship and Plagiarism

14 February 2019

From Plagiarism Today:

Depending on to whom you’re speaking, AI is either a groundbreaking technology that is going to cause major upheavals in our society or it’s fad that will probably burn itself out in due time.

. . . .

But, while there has been wide exploration as to what AI means for a variety of jobs, what hasn’t gotten nearly as much attention is what it means for writing and plagiarism, in particular when looking at academic integrity.

Though the idea of robots writing school papers might seem to be the realm of science fiction, the truth is robots are already writing content. In September 2017, the Washington Post announced their AI reporter, dubbed Heliograf, had penned some 850 stories in the prior year. This included some 300 reports from the Rio Olympics.

The year before, the AP announced that it was going to exploit AI to produce some 3000 quarterly earnings reports, up from 300 per quarter the prior year.

In short, you’ve likely already read things written by an AI and didn’t realize it. While these dispatches are, generally, short and formulaic, the technology is moving forward and dipping its toes into more and more complicated tasks.

. . . .

Currently, there is no commercially available AI tools that students, or any writers, can use as a substitute for original work. All of the tools that do exist are enterprise-level tools that aid in the writing of short, formulaic work that don’t really require a human author.

. . . .

The closest thing that does exist are so-called automated paraphrasing tools that are able to semi-intelligently replace words in text with synonyms. Though they have been touted as a threat to academic integrity, they are best known for producing low-quality work that, while able to pass inspection in a plagiarism checker, is ultimately unreadable.

But while it’s easy to make fun of these primitive tools, it’s important to remember that, just over a decade ago, they were pinnacle of technology in article rewriting and were actually expensive systems that spammers paid thousands of dollars per year to use.

What was previously a high-prized secret, in 2019, can be found by any student with a Google search and is easily used by simply pasting text into a form. No money or skill is required.

. . . .

Just like we didn’t jump straight into self-driving cars, we’re not going to jump straight into bots that fully automate the writing process.

Instead, the first real push into AI will likely be automated editing tools. Much like how lane assist and automated braking are a natural extension of cruise control, automated editing tools are a natural extension of spelling and grammar checkers that we have now.

To some extent, we’re already seeing this. Grammarly, for example, offers a suite of writing assistance tools, many of them going beyond regular grammar/spell checking and replicating the function of a human editor. The Hemingway Editor does something similar using the famous author as its inspiration.

As time goes on, tools such as these will become better and better substitutes for human editors. Though it’s unlikely that they’ll fully replace human editors, they will be able to provide more of the function and edit works in more significant ways.

However, at this point such tools don’t raise any real ethical concerns. The changes to the work are decidedly human-driven. It is up to the author to approve or reject the proposed changes. This leaves no question to authorship of the work and certainly is no more dangerous from a plagiarism perspective than a human editor.

. . . .

[I]t stands to reason that the tools will become more and more automated. We’ll go from approving every little change that suggested to tools that, in large, edit a work at the push of a button.

These tools could, in theory, also fact check a work. For example, if a student lists the wrong year for a big battle in their essay, it could correct the statement.

From an authorship standpoint, this is when things start to get complicated. The first time students or reporters are dealing with authorship and AI likely won’t be trying to take credit for what an AI wrote, but trying to blame the AI for mistakes the program inevitably makes.

However, this raises an interesting authorship question. If an AI significantly edits a work and those changes are not expressly approved by the original author, who really is writing the piece? Is it all the responsibility of the original author? A joint authorship? Or is the AI responsible for its mistakes.

. . . .

The endgame for AI and writing is, obviously, push button writing. The ability to feed a bot a topic and some paramaters and then have it spit out a fully formed work.

. . . .

[W]hat happens when an AI bot commits plagiarism, libel or some other literary crime? Who takes responsibility?

Historically, it’s been as cut and dry as to say “If your name appears on it, you’re the author and responsible for it.” We’ve even adopted this approach when ghostwriters are involved, holding the named author to blame. Does that work with AI?

Link to the rest at Plagiarism Today

How Can Museums Copyright the Works of Old Masters?

12 February 2019

From Artrepreneur:

Go to any art museum in the world and you’ll find hundreds of visitors with cameras in hand, snapping photos of their favorite, well-known works. Many of these great pieces no longer have copyright protection yet, these institutions often sell merchandise such as posters that claim the Museum has copyright ownership. As a copyright holder, that institution would have the exclusive right to reproduce the work, make derivatives of it, publicly display it, and distribute it. Conversely, that also means the copyright holder can stop anyone else from doing those things. Take the Monet poster of The Four Trees from the Metropolitan Museum of Art in New York City, shown here. This poster includes a copyright notice:  © 2010 MMA.

If the Monet is in the public domain, meaning free from copyright protection, then how can the Met Museum claim copyright on such an old work? If The Four Trees is really copyright free, then can someone sell an image of the work? Can the Met Museum stop someone from taking a photo of the painting and selling that photo or creating posters from it?  For that matter, who would hold a copyright on a photo of a copyright-free work?

. . . .

Let’s start with some basic tenets of copyright protection. First, the Copyright Act says that copyright protection is available for “original works of authorship fixed in any tangible medium of expression . . . ”  That’s just a fancy way of saying that the work is new and unique. It isn’t a copy or based on someone else’s work and the work has been produced onto something tangible that enables it to be perfectly reproduced and shown to others, such as a work on paper, photos from a digital camera, or a .jpg image file.

. . . .

In addition, the courts have said that for a work to be copyrightable, it must have some level of creativity. Admittedly, this is somewhat subjective and there is no “bright line” from which we know must be crossed to determine the level of creativity required. However, in general, the required level of creativity is very low.

So, if a work fits these criteria; original, tangible and creative, then copyright is automatic and immediate. For example, if you take a photo of your friends with your iPhone camera, the photo is automatically copyrighted because 1) the composition of the photo such as the placement and position of your friends and the setting is unique and original; 2) the choices you made when taking the photo, such as the angle  and distance is considered creative; 3) the photo is captured by the camera sensor so it is fixed in a tangible medium. All three criteria are therefore met.

. . . .

Now that we know the basic factors for copyright eligibility, let’s use these concepts to analyze whether the Met Museum can claim a copyright for the Monet poster. First, we know the poster is fixed in a tangible medium. In this case, it is the paper the poster is printed so that part is fine.

What about originality? One could argue that the Met Museum has merely reproduced Monet’s work so from that perspective it is just a copy and therefore, not original. In addition, Monet’s The Four Trees was created in 1893, and as discussed, any work created prior to 1924 is in the Public Domain. Reproducing artwork that is in the Public Domain cannot extend copyright protection; otherwise, every time a creative work had reached the end of its copyrightable life, the author could just take a picture of it to renew its copyright. The requirement for a limited time would essentially be meaningless.

If the Monet Poster is merely reproducing the Monet, then it cannot claim copyright protection.

. . . .

Well, the copyright isn’t in the Monet painting but in the poster itself.  If the creator of a work incorporates preexisting material from another creator, such as public domain or other copyrighted works, into his or her new work, the new work can receive a copyright if 1) the creator disclaims the preexisting material and 2) the remaining part of the work is copyrightable (i.e. original, in a tangible medium) and has some creativity.

. . . .

The Monet poster is no different. Monet’s The Four Trees is not the sole element on the poster but includes text that is not haphazard but designed, even if the design is a simple one. The position of the text on the page, the font, and size, as well as the choice of color (or lack thereof), are all creative choices and are unique to this poster. So, the Met Museum is claiming copyright protection for the layout of the poster, not the Monet itself, which it would have to disclaim.

. . . .

While taking a photo of a Public Domain work is free to sell from a copyright perspective, there are other legal issues to consider. One of these issues is contract law. When you buy your ticket to enter a museum, even if the museum is free to enter, there are usually Terms of Service that you agree to in exchange for entering the museum. The terms dictate behavior and rules of the museum and can be far-reaching, including expected behavior, age limits, use of certain equipment or even what size bag you are allowed to bring into the museum.

You automatically agree to the Terms of Service when you step onto the museum grounds. An explicit agreement, acknowledgment, or even knowing where to find them is not required. The Terms of Service are unique to each museum and can vary widely, especially between private, public or government-subsidized institutions. Most will include a section related to photography.

The Met Museum’s photography policy states:

“Still photography is permitted for private, noncommercial use only in the Museum’s galleries devoted to the permanent collection. Photographs cannot be published, sold, reproduced, transferred, distributed, or otherwise commercially exploited in any manner whatsoever. Photography is not permitted in special exhibitions or areas designated as “No Photography”; works of art on loan from private collections or other institutions may not be photographed. The use of flash is prohibited at all times and in all galleries. Movie and video cameras are prohibited. Tripods are allowed Wednesday through Friday, and only with a permit issued by the Information Desk in the Great Hall. “

According to these terms, despite the copyright issues discussed earlier, selling photos taken within the museum is prohibited and override any issues of copyright. So even though the work is in the Public Domain and the only place to take a true photo is at the Met Museum, you would still be unable to sell the photo taken there.

. . . .

So how can museums copyright paintings from old masters? As we have seen, they can’t. What they can do, though, is copyright the poster and place the copyright notice in such a way that it misleads people into thinking that they have this right.

Link to the rest at Artrepreneur

PG suggests that a wise museum director would think twice before attempting to enforce a “contract” printed in mouse type on the back of a ticket. (As a point of clarification, prior to the existence of computer mice, “mouse type” referred to tiny, almost unreadable type sizes used for disclaimers of various sorts).

A couple of litigation strategies and some other thoughts come to mind:

  1. One might argue that the form of the contract was inherently deceptive and unenforceable in that it was purposely designed to discourage reading.
    1. One might interview a random sample of museum patrons to ask them what agreements they made with the museum when they entered the museum and whether they had even noticed the existence of a contract on the back of their ticket.
    2. In such case, PG posits that one would be lucky to find one patron out of one thousand who knew anything about the terms of the “binding contract.” Is this a species of consumer fraud perpetrated by the Met?
  2. Since young persons frequently come to art museums, is the museum attempting to bind them to a contract when they are too young to enter into contracts under state law?
    1. As can be attested by large numbers of parents and grandparents, any child can take a photo with an iPhone.
    2. If a child takes a photo of a Monet on a school outing, can the child’s parent who was at work and didn’t go to the museum (and thus, was not bound by the “contract” on the back of the child’s ticket) exploit it commercially?
    3. In fact, if a group arranges a visit to the Met, does each member of the group actually receive a ticket with the “contract” language on the back? If the group is comprised of school children, does each parent sign a document that includes the terms of the Met’s contract, agreeing to be bound by that contract?
  3. PG has not entered the Met Museum for many years, but he doubts mouse type on the back of the Met’s tickets meets legal requirements necessary to accommodate those with vision impairment or other disabling conditions under various federal and state laws.
  4. One might argue that the Met’s photography policy is a poorly-disguised attempt to circumvent the copyright laws of the United States and France (and the various international copyright treaties entered into by each country over the years since Monet made his painting) by effectively extending copyright protections far beyond the terms permitted under the laws of the United States and such treaties.
    1. As the OP describes, the US Constitution permits Congress to enact copyright laws for the purpose of “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.
    2. Whatever copyright protections Oscar-Claude Monet, the creator of the work, may have held have long expired, but the Met still deceptively attempts to treat the painting as somehow protected from unauthorized copying and reproduction in a manner equivalent to copyright protection.
    3. The Met helpfully provides the provenance of the painting:
      1. [Knoedler, New York, until 1893; stock no. 7287; their sale, American Art Association, New York, April 14, 1893, no. 362, as “The Four Trees (Poplar Series),” for $1,175 to Durand-Ruel]; [Durand-Ruel, New York, 1893–95; stock no. 1063; sold on January 12, 1895 to Havemeyer]; Mr. and Mrs. H. O. Havemeyer, New York (1895–his d. 1907); Mrs. H. O. (Louisine W.) Havemeyer, New York (1907–d. 1929; cat., 1931, p. 160, ill., as “Landscape—Les Quatre arbres”)
      2. In each of the transfers of the painting, beginning with its sale by Monet, was copyright to the painting explicitly transferred or, in the absence of an explicit copyright transfer, did Monet retain copyright and merely transfer the painting itself? Where’s the proof?

PG has blathered for too long. As an amateur photographer, he has always been annoyed by museums’ attempts to force patrons to purchase an often second-rate photograph of an artwork from the museum instead of permitting PG to take a more pleasing (at least for him) photo of his own for his personal enjoyment.

Cultural and Intellectual Property Appropriation: Disputes Over Culturally-Inspired Fashions

11 February 2019

From Trademark and Copyright Law:

If you haven’t heard already, New York Fashion Week is here! As usual, a lineup of awe-inspiring shows is expected to roll out over the next several days, as it does every September and February, highlighting the latest fashion trends of some of world’s most famous designers.  One of the big stories surrounding New York Fashion Week this year is the amount of cultural diversity expected to appear on the runway.  The Council of Fashion Designers of America recently penned a letter to New York Fashion Week designers, stating “[a]s you cast your New York Fashion Week shows, please remember to promote diversity and inclusion, on and off the runway.”  The Council also released a diversity report making the case for cultural diversity in fashion.  Designers are expected to take heed. In fact, they did just that for the September New York Fashion Week shows, where over 40 percent of New York’s runway models were reported to be models of color.

Although casting for runway shows appears to be moving in the direction of cultural diversity, some believe the fashion industry itself is facing a crisis with cultural appropriation.  Cultural appropriation is the co-opting of intellectual property, cultural expressions, traditional knowledge or artifacts from another’s culture (usually a minority or indigenous group) without their input, consent, credit, or compensation.  Many of us are familiar with claims of cultural appropriation in the entertainment world (for example, Elvis appropriating black music or the Kardashian sisters co-opting hairstyles traditionally worn by women of African descent).

In the fashion world, claims of cultural appropriation are nothing new. Critics argue that western designers steal traditional design elements from marginalized people, which equates to intellectual property infringement, while defenders respond that it’s not cultural appropriation at all, but instead cultural appreciation or inspiration. Sometimes these disputes lead to lawsuits and, unfortunately for brands accused of appropriation, they often play out in the media as well.

. . . .

French designer Isabel Marant, known for her bohemian aesthetics, came under fire when an indigenous Mixe community of Oaxaca, Mexico, accused Marant of copying its traditional embroidery design. The Mixe community alleged that Marant engaged in “plagiarism” by using its 600 year old cultural expression and claiming it as her own novel creation.  This led to a Twitter storm, with posts comparing Marant’s design with the Mixe design, and discussions concerning cultural appropriation in the fashion industry.

. . . .

MAC Cosmetics was called out for cultural appropriation after it debuted its VIBE TRIBE line of cosmetics in May 2016.  To market its product, the company used the trademark VIBE TRIBE, together with a trade dress (i.e., product packaging) that many believed looked like Native American prints from the American southwest. MAC also allegedly adopted an ad campaign featuring “ethnic-looking” models wearing feather hair accessories and tribal attire.  Despite product names such as “Arrowhead” for lipstick, “Adobe Brick” for blush, and “Wild Horses” for eyeshadow, MAC stated that its collection “has absolutely no connection to nor was it inspired by the Native American cultures.”  Although no lawsuits were filed by Native American tribes, MAC faced a backlash in social media, with complaints from consumers and others, who felt that MAC was engaging in cultural appropriation.

Link to the rest at Trademark and Copyright Law

The Beginning of the End for Patreon

9 February 2019

From The Digital Reader:

There comes a time in the life of many companies when the owners (or investors, or vulture stockholders) decide that they want to extract more profit than is healthy for the company to survive. This is one of the things killing American newspapers, and it’s even impacting B&N, and now it’s about to kill Patreon.

Patreon is fairly healthy, but apparently not profitable enough for its capital investors.

From CNBC:

The number of active patrons supporting artists on the platform in 2019 has seen significant growth, up 1 million over the last year, the company said. The company is also on track to pay out $500 million to content creators in 2019, pushing the company to surpass $1 billion in payouts since its inception in 2013.

Under the company’s current business model, 90 percent of funds are paid directly to content creators. Patreon takes 5 percent, and the remaining 5 percent covers transaction fees.

Patreon CEO Jack Conte said in an interview with CNBC that the platform will soon be facing the challenge of maintaining a profitable model as the company continues its growth.

“The reality is Patreon needs to build new businesses and new services and new revenue lines in order to build a sustainable business,” Conte said.

The company does not currently provide contracts, which allows users to retain 100 percent ownership of their work and full control of their brand.

The company plans to provide creators with new “value services,” like options for merchandising, to generate new revenue. Creators will be given the opportunity to participate in these services, and it could ultimately reduce Patreon’s generous 90 percent pay-out model.

What this means is that Patreon’s investors want the company to be more profitable, and if necessary they’re going to force the company to pay its users less.

. . . .

I do not currently use Patreon; I closed my account when they tried to jack up costs in late 2017. But I had been thinking about going back to Patreon in order to fund the blog through donations and pledges.

Now I think I’ll just still with Paypal (not exactly a nice company either, but beggars can’t be choosers).

The thing about Patreon not being profitable enough is that Paypal has a very similar model and they turn a profit on a smaller cut of the funds they transfer. Paypal only collects payment processing fees (the 5% transaction fees mentioned above) and yet Paypal is so profitable that they spun off Ebay as not being worth the hassle.

Of course, Paypal had a unique advantage when they were starting out; they were acquired by Ebay, which then forced buyers and sellers to use the service (when you’re growing your business, there’s nothing like having a captive audience who can’t say no).

. . . .

Folks, Patreon’s attempts to increase its profitability are doomed not because this is going to drive away users but because their niche is too damn small. Patreon only handles one small segment of payment processing (what are essentially charitable fundraising campaigns); in comparison, Paypal covers dozens of segments.

Link to the rest at The Digital Reader

PG suggests that, unless an internet-based business has some sort of moat around it (patents, must-have technology, unique voices or expertise, etc.), raising prices is very difficult because someone else is always ready to clone the business plan and offer the service for less.

PG is only passingly familiar with Patreon, but is not aware of any patents or similar limits to those who might build a similar platform for the same purposes – providing an online means for people to help fund various creative endeavors.

However, while PG was looking at Patreon’s Terms of Use to see if there were any mentions of patents, trade secrets, etc., he did find a rights grab that may be troubling to authors and other creators:

You keep full ownership of all content that you post on Patreon, but to operate we need licenses from you.

By posting content to Patreon you grant us a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your content. The purpose of this license is to allow us to operate Patreon, promote Patreon and promote your content on Patreon. We are not trying to steal your content or use it in an exploitative way.

You may not post content that infringes on others’ intellectual property or proprietary rights.

Patrons may not use content posted by creators in any way not authorized by the creator.

On the front page of Patreon’s site, the company makes a representation that some might construe as conflicting with the quoted portion of the Terms of Use:

You own your content

There are no contracts to sign and you retain 100% ownership of your work. You made it, not us.

Under Patreon’s equivalent to an FAQ, the following is a question and answer about ownership of creative works:

Wait, does Patreon own my content?

Nope! Your content is 100% yours, unless a record label or studio owns part of it, in which case it’s partly theirs too, but it’s definitely not Patreon’s — not even a little.

PG suggests that Patreon’s Terms of Use are, in fact, a contract between Patreon and its creators. It is a “click-to-accept” contract with an electronic signature by the creator which is not physically “signed”, but is still enforceable by Patreon against the content creator.

In the United States, the Electronic Signatures in Global and National Commerce Act (15 U.S. Code Chapter 96) explicitly authorizes electronic signatures in interstate commerce and makes electronically-signed contracts enforceable. Here are the first paragraphs of the law:

(a) In general Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce—(1)a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and
(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.

In particular, the quoted portion of the Terms of Use above explicitly create a license, which is most definitely a species of contract, between the content creator and Patreon.

Furthermore, the license cannot be unilaterally canceled by the content creator – it is a “perpetual, irrevocable”, “sublicensable, worldwide” license.

What about all the “you own your content” messages on Patreon?

In a traditional publishing contract granting a publisher all rights to an author’s book, the author continues to “own the content” in that the author is the owner of the copyright to the book. However, the publishing contract grants the publisher the exclusive worldwide right to print, publish and sell the book in all its various forms, including the right to license subsidiary rights for movies, television shows, etc.

Under such a contract, the author owns the content, but can’t do anything with it because the publishing contract grants the publisher all rights to exploit the contract.

Let’s briefly unpack the licensing paragraph:

By posting content to Patreon you grant us a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your content. The purpose of this license is to allow us to operate Patreon, promote Patreon and promote your content on Patreon. We are not trying to steal your content or use it in an exploitative way.

PG suggests that the first sentence is inconsistent with the second sentence in tone and, perhaps, in the manner in which it may be enforced.

The portion of the first sentence beginning with “you grant” is precise and definitive. The second sentence is squishier. “The purpose of this license is to allow us to” . . . .

Under general principles governing the interpretation of contracts, if there is a conflict between a specific and a general provision, the specific provision will govern. If PG were representing a content creator, he would suggest that the second sentence above be reworded for clarity:

“The license granted in the preceding sentence is expressly limited to grant Patreon the ability to include content created by the author in various ways that are reasonably calculated to promote the author’s content on Patreon’s website. All other rights of author in and to the content are expressly reserved to author, including, without limitation, the exclusive right to grant others the right to print, publish, license and/or sell the content and/or any derivative rights arising from the content to any third party. After termination of this Agreement for any reason, at author’s request, Patreon will provide a document disclaiming all rights to author’s content if reasonably requested by author disclaiming any and all rights in and to the content.”

 

 

Free Culture

8 February 2019

Largeness as such is not bad. Freedom is not threatened just because some become very rich, or because there are only a handful of big players. The poor quality of Big Macs or Quarter Pounders does not mean that you can’t get a good hamburger from somewhere else.

The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the change in copyright, produces. It is not just that there are a few powerful companies that control an ever expanding slice of the media. It is that this concentration can call upon an equally bloated range of rights— property rights of a historically extreme form—that makes their bigness bad.

It is therefore significant that so many would rally to demand competition and increased diversity. Still, if the rally is understood as being about bigness alone, it is not terribly surprising. We Americans have a long history of fighting “big,” wisely or not. That we could be motivated to fight “big” again is not something new.

It would be something new, and something very important, if an equal number could be rallied to fight the increasing extremism built within the idea of “intellectual property.” Not because balance is alien to our tradition; indeed, as I’ve argued, balance is our tradition. But because the muscle to think critically about the scope of anything called “property” is not well exercised within this tradition anymore.

If we were Achilles, this would be our heel. This would be the place of our tragedy.

As I write these final words, the news is filled with stories about the RIAA lawsuits against almost three hundred individuals. Eminem has just been sued for “sampling” someone else’s music. The story about Bob Dylan “stealing” from a Japanese author has just finished making the rounds. An insider from Hollywood—who insists he must remain anonymous—reports “an amazing conversation with these studio guys. They’ve got extraordinary [old] content that they’d love to use but can’t because they can’t begin to clear the rights. They’ve got scores of kids who could do amazing things with the content, but it would take scores of lawyers to clean it first.” Congressmen are talking about deputizing computer viruses to bring down computers thought to violate the law. Universities are threatening expulsion for kids who use a computer to share content.

~ Lawrence Lessig, Free Culture


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