In Google Books appeal, Authors Guild decries Google’s impact on Amazon sales

12 April 2014

From TeleRead:

The Authors Guild is appealing Google’s November fair use win in its Google Book scanning case. The Guild says that Google is “yanking readers out of online bookstores” and stifling online bookstore competition with its digitized books.

“Google emptied the shelves of libraries and delivered truckloads of printed books to scanning centers, where the books were converted into digital format,” the Guild’s lawyers said.

They wrote that the library project was designed to lure potential book purchasers away from online retailers like and drive them to Google.

Wait, what?

. . . .

Second, this is the same Authors Guild that blamed lax antitrust enforcement for Amazon’s domination of the online book sales market, called Amazon “anticompetitive,” and insisted that the DoJ antitrust suit against the publishers was only going to help Amazon.

Now they’re suddenly all concerned over Google’s impact on Amazon’s wellbeing? Seriously?

Link to the rest at TeleRead

Improvements To UK Copyright Law

4 April 2014

From author and TPV regular Russell Phillips:

I was pleased to discover recently that, from the 1st of June, format-shifting will be legal in the UK. The change has generally been reported in terms of music – it’s now legal to rip a CD so that you can listen to it on your MP3 player. People have been doing this for as long as MP3 players have been available, of course. Before the advent of MP3 players, it was common practice to copy CDs and albums onto tape to listen to them on personal stereos or in the car. What is more relevant to this blog, however, is that the changes also apply to ebooks.

. . . .

Under the present law, all these cases, as well as converting an ebook from one format to another, are illegal in the UK. The law is set to change on the 1st of June, at which time converting an ebook from one format to another (from ePub to Mobi, for example, to read it on a Kindle) will become legal.

. . . .

Not surprisingly, the new law will only allow copies to be made for personal use. It won’t be legal to make copies for friends and family. There is another important caveat: all of the above applies to ebooks that don’t have DRM, but many do. The UK Intellectual Property Office website states that, where DRM is used to prevent copying, the copyright owner “may have the right to take action against a person who gets round” the DRM.

Link to the rest at Russell Phillips

UK Government publishes its copyright exceptions

28 March 2014

From The Bookseller:

The government has published a series of changes to the Copyright, Designs and Patents Act 1988, including giving people the right to use a work for parody, pastiche and caricature, and the right to copy work for text and data analysis for non-commercial research.

. . . .

They follow the Hargreaves Review of 2010, which was set up to look at “barriers to growth” within the intellectual property system, and will affect how consumers “can use content like books, music, films and photographs” and “will also introduce greater freedoms in copyright law to allow third parties to use copyright works for a variety of economically and/or socially valuable purposes without the need to seek permission from copyright owners”.

. . . .

The Intellectual Property Office said: “The changes make small but important reforms to UK copyright law and aim to end the current situation where minor and reasonable acts of copying which benefit consumers, society and the economy are unlawful.”

. . . .

However Sam Edenborough, president of the Association of Authors Agents, said the group was “particularly concerned with the new exception created for parody, pastiche and caricature”.

He said: “Our view is that an exception for pastiche is a very broad gap through which one could sail a large boat. Parody is relatively easy to define but pastiche is very hard to define – musical pastiche is different to literary pastiche and so on. It always involves copying or mimicry. In theory someone could take large chunks of several works, stitch them together and claim the result is pastiche. It is unlikely to happen with any regularity but we feel this new exception is a further chipping away of an author’s rights.

“This isn’t the end of the world but it’s another blow to authors’ ability to earn a living from their writing.”

Link to the rest at The Bookseller

Why Are So Few Books From the 20th Century Available as Ebooks?

26 March 2014

From The Atlantic:

If you’re looking to read a best-selling book from 1922 or earlier on your Kindle, you’re in luck. Just about all popular books published between 1913 and 1922 (94 percent, to be exact) are available today as ebooks, often for free.

But for books published 1923 and later, the picture is dramatically different. Just 27 percent of 167 bestsellers published between 1923 and 1932 are available in authorized digital formats.

Why? Because 1923 is the magical dateline that divides America’s intellectual property into two: the era before 1923, from which all work is now in the public domain (with a few exceptions), and everything after, most of which is protected by copyright. Those books that are in the public domain are much, much more likely to be available as ebooks.

. . . .

But here’s the thing: A new study by the University of Illinois’ Paul J. Heald finds that copyright protections didn’t have the same effect on music. In fact, songs after 1923 seem to be more common online than those in the public domain.

Using a database of popular songs from 1913 to 1932 with unique names (to keep the data neat), Heald found that the vast majority of songs were available on iTunes, regardless which year they were from, “most of them with recordings from multiple artists.” For the public-domain years, 1913 to 1922, Heald found that 72 percent of the hits were on iTunes. For the years 1923-1932, 96 percent were.

. . . .

So why is it that copyright seems to have so little impact on the availability of early-20th-century music and yet has dramatically shaped the market for books from that time?

Heald offers a couple of theories.

For one, there’s the fact that it’s just much easier (and therefore cheaper) to digitize music than it is to digitize printed text. As Heald explains:

a vinyl album or audio master tape can be converted directly to a consumable digital form and be made available almost immediately. A book, on the other hand, can be scanned quite easily, but in order to be marketed as a professional-looking eBook (as opposed to a low quality, camera-like image of the original book), the scanned text needs to be manipulated with word processing software to reset the fonts and improve the appearance of the text. And given that the best optical scanning software can leave glitches in the text, an ebook intended for mass market distribution should also be proofread for typographical errors.

Another reason: Music, especially old music, is easier to consume, relative to books. A song requires just an investment of a few minutes, and services like Pandora may help to surface obscure, older compositions. An old book, by contrast, can be an undertaking, and consumers may not be all that interested, absent a compelling reason, such as an assignment for a class or a recommendation from a friend. “The comparative attractiveness and efficiencies present in the music marketplace may provide more of an incentive for music publishers to digitize, as opposed to book publishers,” Heald writes.

Link to the rest at The Atlantic

Updates in the ‘Innocence of the Muslims’ copyright saga

16 March 2014

From The Hollywood Reporter:

Until recently, Innocence of Muslims was known as the movie trailer that sparked outcries throughout the world and was blamed at one point for the attack on the U.S. diplomatic mission in Benghazi, Libya, that left four Americans dead, including Ambassador Chris Stevens. But after a federal appeals court ruling last month that determined that actress Cindy Lee Garcia could assert a copyright interest in her performance in the film and that Google had to remove the controversial anti-Islamic film from YouTube, Innocence of Muslims has evolved into something more.

Soon after the ruling by 9th Circuit Chief Judge Alex Kozinski, Google filed an emergency motion to stay the order pending a rehearing en banc. Judge Kozinski denied the motion, but in a rare move that illustrates the tensions this decision has wrought, another 9th Circuit judge made a sua sponte request to have the circuit reconsider the stay.

. . . .

Now, both sides have filed briefing on that issue with Google revealing the latest: The U.S. Copyright Office has refused Garcia’s attempt to register a copyright. And if that’s not enough, on Wednesday, Facebook, Twitter, IAC and Pinterest requested permission to file an amicus brief supporting Google’s position. UPDATE: Media groups and publishers including The New York TimesWashington PostLos Angeles Times are also weighing in support of Google.

Giving an actor a copyright in his or her performance possibly opens a can of worms when it comes to works of authorship like movies and television shows that contain contributions from many individuals. Some in Hollywood shrug off the doomsayers because of the practice of studios getting signed release forms from actors — which Garcia didn’t have when she was cast in what she believed to be an innocent adventure film titled Desert Warrior. And then there are those like SAG-AFTRA pleased that an appeals court has recognized actors’ rights.

But for Google, Facebook, Twitter, Pinterest and other ISPs often needing to make snap judgments about copyright validity, the Muslims ruling represented a threat. “Under the majority’s rule, everyone from extras to backup dancers could control how (and whether) films get distributed,” says Google in its latest briefing to the 9th Circuit. “And platforms like YouTube would be caught in the middle, forced to adjudicate endless takedown requests that would turn on hard-to-resolve disputes of fact.”

. . . .

On March 6, the director of registration policy and practices took the notable step of writing a letter to Garcia’s lawyer firmly refusing registration and noting how the Copyright Office’s “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.”

Link to the rest at The Hollywood Reporter and thanks to Glinda for the tip.

Performance Copyright Problems

7 March 2014

The 9th Circuit Court opinion in Garcia v. Google begins as follows:

While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior.”

The film’s writer and producer, Mark Basseley Youssef—who also goes by the names Nakoula Basseley Nakoula and Sam Bacile—cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”

These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.

Most copyright case opinions don’t begin in such a compelling manner. Passive Guy could provide numerous examples, but you’ll have to trust him on that contention for now.

PG includes the full opinion below, but will summarize some of the major points here. For copyright nuances, read the opinion.

Ms. Garcia’s contention was that her performance in the film was a copyrightable work and that she never granted the producer any rights to her performance, particularly the right to make a derivative work in which she appeared to be speaking different words.

Mr. Nakoula was guilty of a number of errors of judgement with respect to this film, one of which was not following the standard Hollywood practice of having everybody sign a work made for hire agreement.

Under copyright law, a work made for hire means that the creator of a book, song, movie or acting performance has transferred all of his/her/its interest to whatever copyrightable work he/she/it creates under the agreement to the producer. Under a proper work made for hire agreement, Mr. Nakoula would have owned all of Ms. Garcia’s copyright to her performance. Since he owned the copyright, he would be permitted to make derivative works, like putting new words into her character’s mouth.

As an illustration of the layers of copyright involved in this decision, let’s start with a simple example that was mentioned in the case opinion.

1. The artist known as Prince writes a song called Nothing Compares 2 U.

2. The singer known as Sinéad O’Connor performs the song with a proper performance rights license from Prince for the song music and lyrics.

Prince owns the copyright to the music and lyrics of the song. You need a license from him to do anything with the music and lyrics. Sinéad owns a copyright to her performance of the song. You need a license from her to do anything with that performance.

Even though Prince is the author of the song, he can’t do anything with an audio or video recording of Sinéad performing the song without Sinéad’s consent.

For copyright purposes, there are several levels of derivative works in the Garcia case, each of which is copyrightable:

1. The copyright to the screenplay is owned by the screenplay’s author (unless they signed a work made for hire agreement).

2. The film made from the screenplay is a separate derivative work of the screenplay and the film’s creator owns the copyright to the film. The filmmaker needs rights to the screenplay to do anything with the film, but the author of the screenplay does not own the film because the film is a separate creative work.

3. The court held that Ms. Garcia’s acting performance, while derivative of the screenplay and incorporated in the larger film, was a separate work as well and she owned the copyright to her performance (absent a work made for hire agreement). Like the filmmaker, Ms. Garcia was the author of her performance. She would need rights to the film (and, through the film, the screenplay) to do anything with her performance, but she owned the copyright to her performance.

Because she owns a copyright in part of a video YouTube is streaming, she has the right to pursue a DMCA take-down enforcement action against YouTube for her copyrighted performance in the film. If the filmmaker didn’t have rights to her performance, neither does YouTube.

This is a long prologue to a few thoughts that are more directly related to authors and the kinds of contracts they’re asked to sign.

1. As a general proposition, authors should not sign work made for hire agreements. In doing so, they are transferring all their interest in their books written under such agreements, including their copyright, to someone else. Advertising copyrighters, screenwriters hired by a producer, etc., should expect to sign work made for hire agreements, but fiction authors (and, most of the time, non-fiction authors as well) should not.

Instead, the author gives a license under his/her copyright for others to do things with the author’s book – put it up for sale online in ebook form, publish it, translate it, turn it into a movie, etc.

2. Generally speaking, PG doesn’t like publishing contracts by which an author gives up all rights to his/her books to a publisher. Draw the line at licensing the publisher to publish ebooks, printed books and, perhaps, audiobooks.

Unless the publisher owns a movie studio, the author should keep film, TV, etc., rights. The only way the publisher will monetize those rights is to license a producer or studio to use them. The author can do exactly the same thing her/himself with no need to give a big chunk of film revenues to a publisher.

3. PG has been seeing some publishing contracts that include a grant of rights to publicly perform the author’s work in addition to the right to print, publish and sell hardcovers, paperbacks and ebooks.

The idea behind the publicly perform language is that licensing and distributing ebook files for people to read on digital devices is pretty much the same thing as licensing and distributing video files for people to watch on digital devices.

Motion picture studios earn most of their money by licensing others to publicly perform their movies, whether the license is to a movie theater for paying customers to watch sitting in a big dark place or to Netflix for subscribers to watch in a small dark place.

PG’s problem with the publicly perform language is that it can cause big problems for authors who retain movie, TV, etc., rights. The author can license the studio to create a screenplay and movie from his/her book, but, with the broad language in the publishing agreement, the author can’t license the studio to publicly perform the movie because the publisher holds that right.

Producers and studios aren’t interested in only giving private performances of their films to friends and family at home.

Such public performance language can constitute a back-door rights-grab.

Here’s the full opinion:

Getty makes 35 million images free for sharing

6 March 2014

From CNET Australia:

Licensing issues might not be at the front of your mind when you share a photo, which can lead to inadvertent breaches of copyright. Getty Images is introducing a new feature called Embed that will help end the ambiguity around image sharing for a large portion of its photo catalogue.

As long as it is for a non-commercial purpose, you can share a Getty image on platforms such as a blog, personal website, Facebook or Twitter, with attribution automatically applied. It works like any regular HTML embed code that you may be familiar with, using an iframe integration.

. . . .

“What we’re trying to do is take a behaviour that already exists and enable it legally, then try to get some benefits back to the photographer primarily through attribution and linkage,” said Craig Peters, senior vice president, business development, product and content at Getty Images.

In the past, users have been sharing content through what Peters calls a “right-click and take behaviour”, which generally removes the image from its original context if there is no watermark. Through the Embed method, the metadata remains with the image and information is provided for users to click back through to Getty if they want to find out more or to license the image for other purposes.

“I equate this back to when you think about music, back before there was iTunes or Spotify,” said Peters, “people were stealing imagery because they didn’t have an alternative. Our job here is to provide a better alternative to stealing, not only one that’s legal but one that’s better. There are no watermarks beyond attribution, and hopefully with the ease of access and the ability to search through our entire archive of imagery, those are things that are actually better off when there’s publishers who want to use our content.”

Link to the rest at CNET Australia and thanks to Barb for the tip. This link will take you to the Getty Embed Images portal.

Passive Guy thinks this is an example of a good idea badly implemented because of typical corporate-think. As you’ll see below, Getty takes great images then, in PG’s exceptionally humble opinion, ruins them with ugly credit frames. In its terms of use, Getty reserves the right to put advertisements (of whatever size and nature) into the frames, although there are none at present.

Essentially, it appears that Getty wants to make sure that their free pictures look worse than the pictures you pay for. The ones you pay for typically only require an unobtrusive credit line – see the credit line for this photo, for example.

PG understands the reasons for requiring a credit, but that can be done in a less-obtrusive manner, as demonstrated by Creative Commons photos and Wikimedia Commons’ share-and-share-alike attribution rules.

Getty would certainly huff and puff about much professional quality, etc., but if a blogger wants an attractive photo to visually enhance a post and Getty offers an attractive photo in an ugly frame with an ad, many bloggers will look elsewhere.

In fact, using Google to search by images, the blogger may be easily able to find almost the same landscape, building, object or model pose that Getty offers from a legal source that doesn’t require an ugly frame.

Since PG is an amateur photographer, this may be something that bothers him without bothering others, however.

You’ll see some free embed examples down farther, but, first, here are the Terms of Use language for using these the Embedded Viewer:

Embedded Viewer

Where enabled, you may embed Getty Images Content on a website, blog or social media platform using the embedded viewer (the “Embedded Viewer”). Not all Getty Images Content will be available for embedded use, and availability may change without notice. Getty Images reserves the right in its sole discretion to remove Getty Images Content from the Embedded Viewer. Upon request, you agree to take prompt action to stop using the Embedded Viewer and/or Getty Images Content. You may only use embedded Getty Images Content for editorial purposes (meaning relating to events that are newsworthy or of public interest). Embedded Getty Images Content may not be used: (a) for any commercial purpose (for example, in advertising, promotions or merchandising) or to suggest endorsement or sponsorship; (b) in violation of any stated restriction; (c) in a defamatory, pornographic or otherwise unlawful manner; or (d) outside of the context of the Embedded Viewer.

Getty Images (or third parties acting on its behalf) may collect data related to use of the Embedded Viewer and embedded Getty Images Content, and reserves the right to place advertisements in the Embedded Viewer or otherwise monetise its use without any compensation to you.

How Academia and Publishing are Destroying Scientific Innovation

5 March 2014

From King’s Review:

I recently had the privilege of speaking with Professor Sydney Brenner, a professor of Genetic medicine at the University of Cambridge and Nobel Laureate in Physiology or Medicine in 2002. My original intention was to ask him about Professor Frederick Sanger, the two-time Nobel Prize winner famous for his discovery of the structure of proteins and his development of DNA sequencing methods, who passed away in November. I wanted to do the classic tribute by exploring his scientific contributions and getting a first hand account of what it was like to work with him at Cambridge’s Medical Research Council’s (MRC)Laboratory for Molecular Biology (LMB) and at King’s College where they were both fellows. What transpired instead was a fascinating account of the LMB’s quest to unlock the genetic code and a critical commentary on why our current scientific research environment makes this kind of breakthrough unlikely today.

. . . .

ED: Our discussion made me think about what we consider markers of success today. It reminded me of a paragraph in Professor Brenner’s tribute to Professor Sanger in Science:

“A Fred Sanger would not survive today’s world of science. With continuous reporting and appraisals, some committee would note that he published little of import between insulin in 1952 and his first paper on RNA sequencing in 1967 with another long gap until DNA sequencing in 1977. He would be labelled as unproductive, and his modest personal support would be denied. We no longer have a culture that allows individuals to embark on long-term—and what would be considered today extremely risky—projects.”

I found this particularly striking given that another recent Nobel prize winner, Peter Higgs, who identified the particle that bears his name, the Higgs boson, similarly remarked in an interview with the Guardian that, “he doubts a similar breakthrough could be achieved in today’s academic culture, because of the expectations on academics to collaborate and keep churning out papers. He said that: ‘it’s difficult to imagine how I would ever have enough peace and quiet in the present sort of climate to do what I did in 1964.’”

It is alarming that so many Nobel Prize recipients have lamented that they would never have survived this current academic environment. What are the implications of this on the discovery of future scientific paradigm shifts and scientific inquiry in general? I asked Professor Brenner to elaborate.

SB: He wouldn’t have survived. It is just the fact that he wouldn’t get a grant today because somebody on the committee would say, oh those were very interesting experiments, but they’ve never been repeated. And then someone else would say, yes and he did it a long time ago, what’s he done recently?  And a third would say, to top it all, he published it all in an un-refereed journal.

. . . .

I think peer review is hindering science. In fact, I think it has become a completely corrupt system. It’s corrupt in many ways, in that scientists and academics have handed over to the editors of these journals the ability to make judgment on science and scientists. There are universities in America, and I’ve heard from many committees, that we won’t consider people’s publications in low impact factor journals.

Now I mean, people are trying to do something, but I think it’s not publish or perish, it’s publish in the okay places [or perish]. And this has assembled a most ridiculous group of people.

. . . .

ED: Subscriptions to academic journals typically cost a British university between £4-6 million a year. In this time of austerity where university staff face deep salary cuts and redundancies, and adjunct faculty are forced to live on food stamps, do we have the resources to pour millions of dollars into the coffers of publishing giants? Shouldn’t these public monies be put to better use, funding important research and paying researchers liveable wages? To add insult to injury, many academics are forced to relinquish ownership of their work to publishers.

SB: I think there was a time, and I’m trying to trace the history when the rights to publish, the copyright, was owned jointly by the authors and the journal. Somehow that’s why the journals insist they will not publish your paper unless you sign that copyright over. It is never stated in the invitation, but that’s what you sell in order to publish. And everybody works for these journals for nothing. There’s no compensation. There’s nothing. They get everything free. They just have to employ a lot of failed scientists, editors who are just like the people at Homeland Security, little power grabbers in their own sphere.

If you send a PDF of your own paper to a friend, then you are committing an infringement. Of course they can’t police it, and many of my colleagues just slap all their papers online. I think you’re only allowed to make a few copies for your own purposes. It seems to me to be absolutely criminal. When I write for these papers, I don’t give them the copyright. I keep it myself. That’s another point of publishing, don’t sign any copyright agreement. That’s my advice. I think it’s now become such a giant operation. I think it is impossible to try to get control over it back again.

Link to the rest at King’s Review and thanks to SFR for the tip.


Copyright Users’ Rights in Canada Hits Ten

4 March 2014

More on fair use/fair dealing under copyright law from Michael Geist:

[T]oday marks the tenth anniversary the Supreme Court of Canada’s landmark CCH Canadian v. Law Society of Upper Canada. A decade after its release, the case has grown in stature as the leading the users’ rights copyright decision by a high court in the world. Writing for a unanimous court, Chief Justice McLachlin stated:

the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: ‘User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.’

The articulation of fair dealing as a users’ right represented a remarkable shift, emphasizing the need for a copyright balance between the rights of creators and the rights of users.

. . . .

[Despite calls to limit the scope of fair dealing] the Supreme Court of Canada rejected those arguments, choosing instead in 2012 to re-affirm the importance of users’ rights:

CCH confirmed that users’ rights are an essential part of furthering the public interest objectives of the Copyright Act. One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision ‘must not be interpreted restrictively’.

While some groups still seek to downplay the importance of fair dealing, ten years after CCH it is clear that users’ rights are here to stay. The Supreme Court has continued its emphasis on a copyright balance that prominently features users’ rights, the government has adopted copyright reform with a significant user-oriented component (expanded fair dealing, user generated content provision, Internet exceptions, format shifting, device shifting, backup copies), and the World Intellectual Property Organization reached agreement on its first users’ rights copyright treaty last year with the Marrakesh Treaty for the blind and visually impaired.

Link to the rest at Michael Geist and thanks to Phil for the tip.

In Copyright Law, 200 Is a Magic Number

3 March 2014

From Copyright and Technology:

An occasional recurring theme in this blog is how copyright law is a poor fit for the digital age because, while technology enables distribution and consumption of content to happen automatically, instantaneously, and at virtually no cost, decisions about legality under copyright law can’t be similarly automated.  The best/worst example of this is fair use.  Only a court can decide whether a copy is noninfringing under fair use.  Even leaving aside notions of legal due process, it’s not possible to create a “fair use deciding machine.”

In general, copyright law contains hardly any concrete, machine-decidable criteria.  Yet one of the precious few came to light over the past couple months regarding a type of creative work that is often overlooked in discussions of copyright law: visual artworks.  Unlike most copyrighted works, works of visual art are routinely sold and then resold potentially many times, usually at higher prices each time.

A bill was introduced in Congress last week that would enable visual artists to collect royalties on their works every time they are resold.  One of the sponsors of the bill is Rep. Jerrold Nadler, who represents a chunk of one of the world’s largest concentrations of visual artists: New York City.

Of course, the types of copyrighted works that we usually talk about here — books, movies, TV shows, and music — aren’t subject to resale royalties; they are covered under first sale (Section 109 of the copyright act), which says that the buyer of any of these works is free to do whatever she likes with them, with no involvement from the original seller.  But visual artworks are different.  According to Section 101 of the copyright law, they are either unique objects (e.g. paintings) or reproduced in limited edition (e.g. photographs).  The magic number of copies that distinguishes a visual artwork from anything else?  200 or less.  The copies must be signed and numbered by the creator.

. . . .

Under the proposed ART (Artist Royalties, Too) Act, five percent of the proceeds from a sale of a visual artwork would go to the artist, whether it’s the second, third, or hundredth sale of the work.  The law would apply to artworks that sell for more than $5,000 at auction houses that do at least $1 million in business per year.  It would require private collecting societies to collect and distribute the royalties on a regular basis, as SoundExchange does for digital music broadcasting.  This proposed law would follow in the footsteps of similar laws in many countries, including the UK, EU, Australia, Brazil, India, Mexico, and several others.  It would also emulate  ”residual” and “rental” royalties for actors, playwrights, music composers, and others, which result from contracts with studios, theaters, orchestras, and so on.

. . . .

The Office had previously looked into resale royalties over 20 years ago.  Its newer research found that, based on evidence from other countries that have resale royalties, imposing them in the US would neither result in the flight of art dealers and auction houses from the country nor impose unduly onerous burdens for administration and enforcement of royalty payments.

Yet the Copyright Office’s report doesn’t overflow with unqualified enthusiasm for statutory royalties on sales.  One of the legislative alternatives it suggests is the idea of a “performance royalty” from public display of artworks.  If a collector wants to buy a work at auction (anonymously through middlemen) and display it privately in her home, that’s different from a museum that charges people admission to see it.  Although this would mirror performance royalties for music, it would seem to favor wealthy individuals at the expense of public exposure to art.

. . . .

As an outsider to the art world, I have no opinion.  Instead it’s that 200 number that fascinates me.  That number may partially explain why the Alfred Eisenstaedt photograph of the conductor Leonard Bernstein hanging in my wife’s office, signed and numbered 14 out of 250, is considerably less valuable than another Eisenstaedt available on eBay that’s signed and numbered 41 out of 50.

It begs the question of what happens when more and more visual artists use media that can be reproduced digitally without loss of quality.  Would an artist be better off limiting her output to 200 copies and getting the 5% on resale, or would she be better off making as many copies as possible and selling them for whatever the market will bear?  The answer is unknowable without years of real-world testing.  Given the choice, some artists may opt for the former route, which seems to go against the primary objective of copyright law: to maximize the availability of creative works to the public through incentives to creators.

Link to the rest at Copyright and Technology

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