From Publishers Weekly:

Two days before the publication of my comic novel, The Seductive Lady Vanessa of Manhattanshire, I learned the setup driving the entire book had already been used by another writer—270 years ago. That meant my book, which recasts Don Quixote as a hoop-skirted, romance-novel-besotted woman questing for love in contemporary New York, was not quite as original an act of plagiarism as I had thought.

My delusion of literary innovation was shattered by Stefan Kutzenberger, an Austrian novelist and fellow Cervantes enthusiast visiting New York on a government-backed book tour. We were having a drink with a mutual friend when Stefan asked, “Did you ever read Charlotte Lennox?”

“No. Who is she?”

“She wrote a book called The Female Quixote.”

“Seriously?” I asked, breaking out my cellphone.

“Yes. Henry Fielding was a big fan.”

“1752!” I said, reading the pub date. “That’s amazing.”

I tried to remain calm. But the idea that Lennox had already deployed a similar Quixote clone left me rattled. Nobody wants to spend years on a book only to find out it has an ancient twin.

“Damn!” I said, laughing and complaining. “I can’t believe it.”

But really, it was easy to believe. Days earlier, when a friend asked how I’d hit on the idea for Lady Vanessa, I said, “I’m a big Don Quixote fan. Given romance fiction’s popularity, it just seemed like an obvious and interesting idea to explore. I’m surprised no one ever thought of it before.”

Famous last words.

I went home feeling curious and competitive. I read about my new but long-dead rival. Samuel Johnson was a friend and fan of Lennox. An essay on the web confirmed Henry Fielding “printed a very favourable review in the Covent Garden Journal, saying it was better than Don Quixote.”

Whoa. Quite a throw-down. I stopped reading about Lennox and downloaded The Female Quixote, or, The Adventures of Arabella.

After a cursory inspection of the novel, I can report it is funny but, unfortunately, very wordy. It is not “better” than the original. Most important to me, Arabella is very different from my Lady Vee. She is much younger: 17, not 48. She lives in a castle, not an Upper West Side co-op. She is paranoid about men ravishing her, whereas Lady Vanessa would like to be ravished. Arabella’s madness, at first blush, also lacks the over-the-top buffoonery of Don Quixote, which I hoped to emulate with Lady Vee.

Despite the differences, it was clear we were inspired by the same source material, 270 years apart. My mind raced. How had I missed The Female Quixote’s existence? Should I be more bruised or amused by my innocent ignorance, or by the fact that it took an Austrian novelist to enlighten me? And how had all the agents, editors, and blurbers who read Lady Vanessa failed to name-check The Female Quixote? The Cervantes scholar who’d raved about my book didn’t even mention it.

In the clear light of the next day, I realized I had it all wrong. It didn’t matter that I’d never heard of The Female Quixote. Charlotte Lennox wasn’t a rival; she was an ally! We loved the same book. Don Quixote inspired us to do the same thing in radically different time periods: recontextualize, reimagine, and reinvent.

I wrote Lady Vanessa because I love Don Quixote. I hoped to revisit the ideas Cervantes toyed with four centuries ago: censorship, the lines between fantasy and reality, literary clichés, and the power of books. I also hoped it would be entertaining.

I can’t speak for whatever drove Lennox, but we aren’t alone. The saints at Wikipedia have a list of Quixote-influenced books, amassing 27 entries. Some of literature’s greatest talents have spilled ink in tribute to the La Mancha madman: Flaubert, Dostoyevsky, Borges, and Rushdie. Lennox is the second entry.

Link to the rest at Publishers Weekly

PG notes that ideas (like a female Don Quixote) are not protected by copyright law. Only the expression of ideas is protected.

Plagiarism may or may not be a violation of copyright law, depending on the extent and manner in which another’s work is used by a subsequent author.

From The Copyright Alliance:

There are many differences between plagiarism and copyright infringement, yet it can be easy to confuse these concepts. While both plagiarism and copyright infringement can be characterized as the improper use of someone else’s work, they are distinctly different improper uses of someone else’s work. The biggest difference is that copyright infringement is illegal, while plagiarism is not. This blog post discusses additional differences between the two and provides examples of each type of improper use.

What is Plagiarism?

Plagiarism occurs when a party attempts to pass someone else’s work or ideas off as their own, without properly giving credit to the original source. Plagiarism, while not against the law, is an ethical construct most commonly enforced by academic intuitions. Consequences of academic plagiarism may range from receiving a failing grade all the way to the revocation of a degree.

Plagiarism is not just limited to the academic setting. In the professional world, plagiarism has its own set of consequences, which may include sullying the plagiarizer’s reputation and in some instances termination and difficulty finding new employment. For example, in 2014 CNN fired a London-based news editor for repeated plagiarism offenses over a six month period, involving a total of 128 separate instances of plagiarism, mostly taken from Reuters.

What is Copyright Infringement?

Copyright, at its core, is the set of rights belonging to the creator or owner of a work of authorship that is original and fixed in a tangible medium of expression. This set of rights automatically vests to someone who creates an original work of authorship like a song, literary work, movie, or photograph. These rights allow a copyright owner to control who, when, where, and how their work is used, such as through the right to reproduce the work, to prepare derivative works, to distribute copies, and to perform and display the work publicly.

Copyright infringement occurs when a party takes an action that implicates one or more of the rights listed above without authorization from the copyright owner or an applicable exception or limitation in the copyright law, such as fair use. There can be significant legal consequences for copyright infringement, including injunctions, monetary damages, and in extreme instances criminal penalties.

. . . .

Plagiarism But Not Copyright Infringement: A student copies a few sentences of a 20-page book illustrating and describing species of birds to use in article on evolution submitted for her high school newspaper but fails to provide a citation or footnote explaining that the information came from the book. This student may have committed plagiarism by not properly attributing the information and making it seem like the information originated from the student. However, the student will most likely not be found to have committed copyright infringement because such an inconsequential amount was used in an educational setting in a manner that is unlikely to harm the authors market for the work that the use is likely a fair use.

Link to the rest at The Copyright Alliance

From The Authors Guild:

The Ninth Circuit Court of Appeals today ruled in Starz v. MGM that the plaintiff, Starz, retained the right to sue violators of their copyrights even if more than three years had passed since the infringements occurred.

Starz filed a suit against MGM when the latter licensed rights to certain films and television shows in its library to third parties even though Starz still held those rights based on an earlier licensing agreement with MGM. MGM claimed that, for some of those infringements, more than three years had elapsed between when the infringements occurred and when Starz discovered them, and, therefore, Starz was barred from collecting damages. A federal district court in California disagreed and denied MGM’s motion to dismiss, drawing on the “discovery rule,” which “operates as an exception to the general principle that damages are only recoverable for infringing acts within three years prior to filing suit.”  

The Ninth Circuit concurred. In her decision, Judge Kim McLane Wardlow cited directly from an amicus brief filed by the Authors Guild that highlighted why creators may not always know right away that copyright infringement occurred.

This ruling impacts not only large entertainment companies but also book authors, filmmakers, screenwriters and other individual artists. These individuals rarely have the training or resources to quickly identify when someone may have infringed on their copyright and may only become aware of it when someone points it out to them or after the situation has already gotten out of hand, such as in the case of e-book piracy rings that sell illegal copies of books to legitimate book buyers, depriving the copyright holder of income.

“We’re pleased that the court recognized that creators often don’t have the time or the ability to monitor the marketplace in order to locate copyright infringements in a speedy manner, especially where, as the decision states, ‘the infringer knows of and controls the infringing acts and the copyright holder has little means of discovering those acts,’” said Cheryl L. Davis, General Counsel for the Authors Guild, 

Link to the rest at The Authors Guild

From ArtNet:

If you copyright a work of art, does that prevent other people from turning that image into a tattoo? That’s the question set to be decided by a jury in California federal court, where the case of photographer Jeffrey B. Sedlik versus celebrity tattoo artist Kat Von D is due to go to trial.

“It is, as far as I know, the first case in which a tattoo artist has been sued for an allegedly copyrighted image on a tattoo on a client’s body,” Aaron Moss, an attorney at Greenberg Glusker Fields Claman & Machtinger LLP, who is not involved in the case, told Bloomberg.

. . . .

In March 2017, Von D, whose legal name is Katherine Von Drachenberg, published the first of two Instagram posts of a tattoo based on a Sedlik’s 1989 photograph of jazz legend Miles Davis, holding a finger to his lips.

. . . .

In 2021, Sedlik responded by suing Von D, claiming that the tattoo was an unauthorized derivative work, and that creating it and posting it on social media was an infringement of his copyright.

After reviewing legal filings from both sides, U.S. District Judge Dale S. Fischer has decided to bring the case to trial. A jury will be asked to decide whether or not the tattoo falls under the doctrine of fair use, as well as if Von D’s use of Sedlik’s image denied the photographer a licensing opportunity.

. . . .

“A finding of infringement would effectively make public display of the tattooed person’s arm an act of infringement,” Amelia Brankov, a copyright lawyer not involved in the case, told Artnet News. “This could give pause to tattoo artists who are asked to ink third-party imagery on their clients.”

“Holding tattoo artists civilly liable for copyright infringement will necessarily expose the clients of these artists to the same civil liability anytime they choose to get tattoos based on copyrighted source material, display their tattooed bodies in public, or share social media posts of their tattoos,” Von D’s lawyers wrote in a legal filing. “That is not the law and cannot be the law.”

Link to the rest at ArtNet

There are images of the original photo and the tattoo at the OP

From the Legal Information Institute:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Notes

house report no. 94–1476

General Background of the Problem. The judicial doctrine of fair use, one of the most important and well-established limitations on the exclusive right of copyright owners, would be given express statutory recognition for the first time in section 107. The claim that a defendant’s acts constituted a fair use rather than an infringement has been raised as a defense in innumerable copyright actions over the years, and there is ample case law recognizing the existence of the doctrine and applying it. The examples enumerated at page 24 of the Register’s 1961 Report, while by no means exhaustive, give some idea of the sort of activities the courts might regard as fair use under the circumstances: 

“quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts. On the other hand, the courts have evolved a set of criteria which, though in no case definitive or determinative, provide some gauge for balancing the equities. These criteria have been stated in various ways, but essentially they can all be reduced to the four standards which have been adopted in section 107: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”

These criteria are relevant in determining whether the basic doctrine of fair use, as stated in the first sentence of section 107, applies in a particular case: “Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

The specific wording of section 107 as it now stands is the result of a process of accretion, resulting from the long controversy over the related problems of fair use and the reproduction (mostly by photocopying) of copyrighted material for educational and scholarly purposes. For example, the reference to fair use “by reproduction in copies or phonorecords or by any other means” is mainly intended to make clear that the doctrine has as much application to photocopying and taping as to older forms of use; it is not intended to give these kinds of reproduction any special status under the fair use provision or to sanction any reproduction beyond the normal and reasonable limits of fair use. Similarly, the newly-added reference to “multiple copies for classroom use” is a recognition that, under the proper circumstances of fairness, the doctrine can be applied to reproductions of multiple copies for the members of a class.

The Committee has amended the first of the criteria to be considered—“the purpose and character of the use”—to state explicitly that this factor includes a consideration of “whether such use is of a commercial nature or is for non-profit educational purposes.” This amendment is not intended to be interpreted as any sort of not-for-profit limitation on educational uses of copyrighted works. It is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions.

General Intention Behind the Provision. The statement of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.

Intention as to Classroom Reproduction. Although the works and uses to which the doctrine of fair use is applicable are as broad as the copyright law itself, most of the discussion of section 107 has centered around questions of classroom reproduction, particularly photocopying. The arguments on the question are summarized at pp. 30–31 of this Committee’s 1967 report (H.R. Rep. No. 83, 90th Cong., 1st Sess.), and have not changed materially in the intervening years.

The Committee also adheres to its earlier conclusion, that “a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified.” At the same time the Committee recognizes, as it did in 1967, that there is a “need for greater certainty and protection for teachers.” In an effort to meet this need the Committee has not only adopted further amendments to section 107, but has also amended section 504(c) to provide innocent teachers and other non-profit users of copyrighted material with broad insulation against unwarranted liability for infringement. The latter amendments are discussed below in connection with Chapter 5 of the bill [§ 501 et seq. of this title].

In 1967 the Committee also sought to approach this problem by including, in its report, a very thorough discussion of “the considerations lying behind the four criteria listed in the amended section 107, in the context of typical classroom situations arising today.” This discussion appeared on pp. 32–35 of the 1967 report, and with some changes has been retained in the Senate report on S. 22 (S. Rep. No. 94–473, pp. 63–65). The Committee has reviewed this discussion, and considers that it still has value as an analysis of various aspects of the problem.

At the Judiciary Subcommittee hearings in June 1975, Chairman Kastenmeier and other members urged the parties to meet together independently in an effort to achieve a meeting of the minds as to permissible educational uses of copyrighted material. The response to these suggestions was positive, and a number of meetings of three groups, dealing respectively with classroom reproduction of printed material, music, and audio-visual material, were held beginning in September 1975.

In a joint letter to Chairman Kastenmeier, dated March 19, 1976, the representatives of the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, and of the Authors League of America, Inc., and the Association of American Publishers, Inc., stated:

You may remember that in our letter of March 8, 1976 we told you that the negotiating teams representing authors and publishers and the Ad Hoc Group had reached tentative agreement on guidelines to insert in the Committee Report covering educational copying from books and periodicals under Section 107 of H.R. 2223 and S. 22 [this section], and that as part of that tentative agreement each side would accept the amendments to Sections 107 and 504 [this section and section 504 of this title] which were adopted by your Subcommittee on March 3, 1976.

Link to the rest at Legal Information Institute

From LawSites:

ImageRights International, a company whose technology has helped visual artists protect their copyrights since 2009, is now entering the legal tech market with its launch today of ImageRights for Law Firms, a platform designed to help law firms and corporate legal departments directly protect their clients’ copyrighted photographs, illustrations, digital art and other visual works.

ImageRights for Law Firms uses proprietary, cloud-based technology to constantly search the internet for uses of clients’ images and to automatically acquire evidence for firms to use in pursuing legal remedies.

The powerful technology will find images matching the clients’ even if they have been radically cropped, had colors changed or removed, been altered with text or image overlays, or have been flipped or added to a collage, the company says.

. . . .

While the platform cannot distinguish between authorized and unauthorized uses of an image, it constantly monitors the internet and then collects any copies it finds in a review platform, where the company’s AI sorts, filters and ranks the images so that the the client or attorney can review them and identify any that are not authorized.

The attorney can then request a time- and date-stamped screenshot, which the product collects and saves, along with server IP information.

From there, the attorney can download the images with the click of a button, to be used directly or imported into a case management system.

The new law firm platform uses the same AI search technology that has been the core of ImageRights’ product for visual artists since 2009. As part of its service for artists, the company maintains an international network of attorneys that artists can connect with to protect their copyrights.

Link to the rest at LawSites

From Forseng Fiction:

This post is the first of a multi-part series on graphic tools for Indie Author activities — blogging, newsletters, marketing, book trailers and the like. The series will cover some applications I have blogged about before, such as PowerPoint and Lumen5, but will also address others such as PhotoFunia, and Adobe Spark.

The purpose of the series is give Indie Authors of the tools available, some idea of the purposes to which they can be put, and an indication the required skill, time, and cost to be invested in the use tools.

This post begins a definition of “general assets” and “novel-specific” assets used as the “aw materials for creating visual content.

After the definitions I review and issue that plagues a lot of Indie Authors — they are not artists, so where can they obtain the necessary graphic “raw materials” — usually images — which they can then use for their own purposes?

Finally, the post covers PowerPoint — the “poor man’s” graphic editor.

Resources

A significant stumbling block for any indie author who wants to make use of visuals — stills, videos, GIFs, etc — is the lack of images with which to work. The days of pulling photos off the web are long gone, and I’ve read online that authors lament that while they want to make use of various visual tools, they have little “raw” material with which to work.

Fortunately, visual resources have become available over the last several years. I tend to class visuals into two categories: general assets (think stock photos) that can be used in visual content, and novel specific — those assets tied directly to an author’s book.

General Assets

General assets can be had from a wide variety of websites — both pay and free. Rather than trying to provide a comprehensive list, I’ve merely provided links to a few resource compilations:

23 Tools and Resources to Create Images for Social Media — despite the title, almost everything in this article can be applied to Indie Authors

The Best Royalty-Free Stock Image Sites for Your Book Cover — although focused on book covers, there are links to different image resources

27 Superb Sites with Royalty Free Stock Images for Commercial Use — the name says it all

There other possibilities as well. Indie authors who post their own images to Instagram may be able to “re-purpose” some them for other uses, for example. As always, when sourcing images, it pays to read the licensing terms to avoid copyright trouble.

Novel Specific Assets

These types of visual assets are directly tied to an Indie Author’s novel or series. Book covers represent the bulk of the assets which fall into this category, but it also includes images, illustrations, drawings, maps, and diagrams used in book trailers, blog posts, and promotional efforts.

To some extent, novel specific assets may be available from general asset sources. This is likely most true for genres such as romance, crime, and adventure and the like. For authors who write fantasy or science fiction, general sources may not offer much help.

In those situations, it may be necessary to spend some money have have something custom developed for the book or series. Typically these are done by commissioning amateur or professional artists. How much this will cost depends upon several things:

• What is to be depicted (one character or multiple characters, full figure or partial, abstract or realistic background, etc)
• The use to which the image will be put (book cover, blog post, book trailer, etc)
• Whether the image is to be painted, drawn, modeled, sketched, coloured or black and white, etc
• How quickly the image is required

Artists which may be commissioned can be found on Craigslist, DeviantArt, Fiverr, and other sites. Careful research is key, and the temptation to rush into a commission should be avoided. More information on working with commission-able artists can be found [elsewhere, see links on OP]

PowerPoint

PowerPoint is the poor man’s graphics tool and with a little imagination can be used to produce some graphic assets which can be used in blog posts, animations, and book trailers.

Most people who use Microsoft products are familiar to some degree with PowerPoint, so the learning curve is not steep.

Primary Uses

Primary graphics uses for PowerPoint include:

• Simple graphics, primarily text-based
• Limited animated sequences exported to MP4 format

Advantages

There are three main advantages to using PowerPoint:

• Low cost — if Microsoft Office is installed, PowerPoint is immediately available for not additional cost. Moreover, everything an Indie Author creates with PowerPoint belongs to them (provided they do not use any 3rd party photo, graphic, or video assets).
• Ease of use — the toolbars, functions, and capabilities are fairly easy to grasp, especially if the Indie Author has used PowerPoint for other purposes (e.g. in a job) in the past.
• Export to movie option — export consecutive slides (a slideshow) as a movie using PowerPoint’s native capabilities.

Disadvantages

PowerPoint disadvantages are tied to its feature limitations.

• Limited graphic capabilities — PowerPoint is not designed to be graphics creation tool, though many people use it that way. To achieve the desired effect with limited graphics features will take some experimentation and time
• Limited animation control — PowerPoint lacks the fine timing controls and other video editing features available in even the simplest dedicated video editor

This is not to say that some incredible images and animations cannot be made with only PowerPoint. To do so, however, would require a significant investment in time. Most Indie Authors would like prefer to put such time to writing.

Link to the rest at Forseng Fiction

Although PG has created and presented with about ten billion PowerPoint talks/exhortations/shows, he has never thought of PowerPoint as a graphics tool.

You can find a gazillion PowerPoint presentation templates online, but the program would be pretty clumsy to use for a cover design.

With respect to picking up a template online or reusing a PowerPoint presentation you find online, it is theoretically possible to copyright a PowerPoint template and/or presentation, but, unless someone uses all or close to all of your template/presentation without a lot of changes, you may be looking at a difficult case to prove.

Note the distinction between claiming a copyright on a PowerPoint presentation and claiming a copyright to a photo or piece of art that is included in a relatively intact form in a PowerPoint presentation.

Theoretically, a variation on a copyright-protected presentation could be termed a derivative work which could give rise to a copyright claim, but the distinction between a new work and a derivative work could be difficult to perceive for a judge. PG thinks he could locate a zillion PowerPoints online that had a highly similar look as any original he’s seen.

The most common uses of other people’s PowerPoint presentation is for the general design and not the words and images included in the original.

If you started out with someone else’s template in the public domain or otherwise, but modified the look, colors, etc., again there is a problem of proof for the person trying to enforce a copyright if he/she was not the sole creator of the work.

Additionally, regarding damages, if the original presentation was not registered with the Copyright Office and/or didn’t include some notice that the creator intended to assert a copyright interest, that could also cause problems.

PG thinks that there are potentially a lot of fair use defenses for a claim based on an infringing presentation that used only bits and pieces of the original.

PG did some quick and dirty online research to see if he could find any information regarding someone filing suit for copyright infringement of a PowerPoint slide deck and couldn’t locate anything. If any visitors to TPV know of such a case, feel free to include it into a comment to this post or forward it to PG by using the Contact PG link at the top of the blog.

From Small Business Trends:

Using a Work with a Creative Commons License Published by Someone Else

Now, let’s imagine that you maintain a blog for your small business. You need to include images with your blog posts because all of the blogging experts and research studies show that blog posts with images perform better than blog posts without images.

You don’t have a budget for images, so you search on Flickr and choose images that have Creative Commons Attribution licenses applied to them that allow commercial use (because your small business blog is a commercial property). You follow the instructions on the Creative Commons website to appropriately attribute the image to its owner and identify the Creative Commons license. You assume you’ve done everything right and that you’ve followed all of the necessary rules so you won’t be accused of copyright infringement in the future.

Sounds good right? Not always.

What happens when you receive the Getty Images Demand Letter like so many other bloggers and small businesses have in the past several years? What happens when the real owner of the work (who is not the person who uploaded it to Flickr and applied a Creative Commons license to it) contacts you and demands compensation?

Again, there are problems that are very likely to arise in the future.

. . . .

Creative Commons Won’t Help You if You Have Problems

The Creative Commons organization absolves itself of any problems you might encounter with one of its licenses in the future within its terms saying, “Creative Commons gives no warranties regarding its licenses … disclaims all liability for damages resulting from their use to the fullest extent possible … is not a party to its public licenses.” If something goes wrong, you’re on your own.

The Creative Commons License on Someone Else’s Work Might Not Be Valid

A big problem with Creative Commons licenses is the fact that anyone can apply them to any work. For example, many of the Creative Commons licensed images on Flickr, Google, and sites that aggregate images weren’t uploaded by the owners of the images. The Creative Commons licenses applied by the people who uploaded the images (but don’t own them) are completely invalid! If you use one of these improperly licensed images, you very well might get caught and find yourself on the losing end of an expensive copyright infringement lawsuit.

Link to the rest at Small Business Trends

PG will add that organizations that own and licenses large numbers of copyrights on images of all sorts can use the same image search techniques you use with Google Images, likely on an automated basis, to sort through the zillions of web sites online, including your author’s website and the product listings of online bookstores to find images that have some degree of similarity to an image for which the organization owns the license (usually assigned by the creator or the owner if the image is a work made for hire).

Images that are no longer protected by copyright are safe to use, but you’ll want to make certain that the image of Big Ben you choose from the many, many other photos is, in fact, the one shot by the photographer whose copyright is expired or the painter of similar vintage.

From Above the Law:

We’ve covered a variety of recent copyright lawsuits against songs that sound vaguely similar, noting this ridiculous war on genres, and basically outlawing the idea of an homage. Even in cases where the lawsuits fail (which is frequently, though not always), it’s still an extremely costly waste of time that can still have massive chilling effects on creative people. Ed Sheeran has been sued a few times with these kinds of claims, and thankfully, just won a case in the UK.

. . . .

In case that video disappears (or you’re not able to watch it), here’s a transcript:

Hey guys. Me, Johnny, and Steve have made a joint statement that will be a press release on the outcome of this case. But I wanted to make a small video to talk about it a bit, because I’ve not really been able to talk about it whilst it’s been going on. Whilst we’re obviously happy with the result, I feel like claims like this are way too common now, and have become a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there is no basis for the claim. It’s really damaging to the songwriting industry.

There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify—that’s 22 million songs a year—and there’s only 12 notes that are available.

I don’t want to take anything away from the pain and hurt suffered from both sides of this case, but I just want to say, I’m not an entity. I’m not a corporation. I’m a human being. I’m a father, I’m a husband, I’m a son. Lawsuits are not a pleasant experience. And I hope that with this ruling, in the future baseless claims like this can be avoided. This really does have to end.

Me, Johnny, and Steve, are very grateful for all the support sent to us by fellow songwriters over the last few weeks. Hopefully, we can all get back to writing songs, rather than having to prove that we can write them. Thank you.

That’s a really fantastic statement. Copyright has long been a complete mess, and one that, in its current form, has done way more damage to creativity than helped it. And Sheeran is no stranger to recognizing this as it’s not the first time we’ve talked up his views on these things. Five years ago, we wrote about how he explained that piracy is what made his career possible. And not in the sense of this lawsuit, which falsely accused him of “pirating” someone else’s work, but he recognized that fans sharing his songs is what made it possible for him to build a devoted fan base.

Furthermore, when his big record label pulled a video down of someone singing a Sheeran cover on Facebook, causing her to lose her account for infringement, Sheeran stepped in to say he supported people singing his songs and got his label (Atlantic/Warner) to remove the copyright claim.

But this is not just about Sheeran. In the video above, he correctly notes that he’s a human being, not an entity or a corporation. But he’s also an enormously successful and wealthy human being who is able to weather these attacks more easily than nearly everyone else impacted by a copyright system run amok. For most people today’s modern copyright system is not doing anything to incentivize new creations or to “protect” artists. It’s doing the opposite. It’s great that Sheeran seems to understand all this, but it’s not enough for a few musicians (and the wider public) to recognize it.

Link to the rest at Above the Law

From Trademark of Examining Procedure, July 2021:

Any mark consisting of the name of an author used on a written work, or the name of a performing artist on a sound recording, must be refused registration under §§1, 2, and 45 of the Trademark Act, 15 U.S.C. §§1051,  1052, and 1127, if the mark is used solely to identify the writer or the artist. See In re Polar Music Int’l AB, 714 F.2d 1567, 1572, 221 USPQ 315, 318 (Fed. Cir. 1983); In re Arnold, 105 USPQ2d 1953, 1957-60 (TTAB 2013) ; In re First Draft, Inc. 76 USPQ2d 1183, 1190 (TTAB 2005) ; In re Peter Spirer, 225 USPQ 693, 695 (TTAB 1985) . Written works include books or columns, and may be presented in print, recorded, or electronic form. Likewise, sound recordings may be presented in recorded or electronic form.

However, the name of the author or performer may be registered if:

• (1) It is used on a series of written or recorded works; and
• (2) The application contains sufficient evidence that the name identifies the source of the series and not merely the writer of the written work or the name of the performing artist.

In re Arnold, 105 USPQ2d at 1958.

If the applicant cannot show a series, or can show that there is a series but cannot show that the name identifies the source of the series, the mark may be registered on the Supplemental Register in an application under §1 or §44 of the Trademark Act. These types of marks may not be registered on the Principal Register under §2(f).

1202.09(a)(i)    Author or Performer’s Name – Evidence of a Series

In an application seeking registration of an author’s or performer’s name, the applicant must provide evidence that the mark appears on at least two different works. Such evidence could include copies of multiple book covers or multiple CD covers that show the name sought to be registered. See In re Polar Music Int’l AB, 714 F.2d 1567, 1572, 221 USPQ 315, 318 (Fed. Cir. 1983). A showing of the same work available in different media, i.e., the same work in both printed and/or recorded or downloadable format, does not establish a series.

The identification of goods need not reflect that the applicant is using the name on a series of works (either written or recorded). It is sufficient that the record contains the evidence of a series.

1202.09(a)(ii)    Evidence that the Name is a Source Identifier

The use of the author’s or performer’s name on a series of works does not, in itself, establish that the name functions as a mark. The record must also show that the name serves as more than a designation of the writer or performer, i.e. , that it also serves to identify the source of the series. See In re Arnold, 105 USPQ2d 1953, 1959-60 (TTAB 2013) (holding BLATANCY fails to function as a mark because it merely identifies the name of a performer featured on applicant’s musical recordings, and finding the evidence relating to control over the mark and the nature and quality of the goods conflicting and of uncertain meaning); In re First Draft, 76 USPQ2d 1183, 1191 (TTAB 2005) (holding pseudonym FERN MICHAELS identifies only the author and does not function as a mark to identify and distinguish a series of fictional books because the “evidence of promotion” was “indirect and rather scant,” despite applicant’s showing that the name had been used as an author’s name for 30 years; that 67 separate books had been published under the name, and approximately 6 million copies had been sold; that the book jackets listed the titles of other works by Fern Michaels and promoted her as a bestselling author; that the author had been inducted into the New Jersey Literary Hall of Fame; and that there was a www.fernmichaels.com website); In re Chicago Reader Inc., 12 USPQ2d 1079, 1080 (TTAB 1989) (holding CECIL ADAMS, used on the specimen as a byline and as part of the author’s address appearing at the end of a column, merely identifies the author and does not function as a trademark for a newspaper column).

A showing that the name functions as a source identifier may be made by submitting evidence of either: (1) promotion and recognition of the name as a source indicator for the series (see TMEP §1202.09(a)(ii)(A)); or (2) the author’s or performer’s control over the name and quality of his or her works in the series (see TMEP §1202.09(a)(ii)(B)). In re Arnold, 105 USPQ2d at 1958.

1202.09(a)(ii)(A)    Promotion and Recognition of the Name

To show that the name of an author or performing artist has been promoted and is recognized as indicating the source of a series of written works, the applicant could submit copies of advertising that promotes the name as the source of a series, copies of third-party reviews showing others’ use of the name to refer to a series of works, or evidence showing the name used on a website associated with the series of works. See In re First Draft, 76 USPQ2d 1183, 1191 (TTAB 2005) , citing In re Scholastic Inc., 23 USPQ2d 1774, 1777 (TTAB 1992) (holding THE MAGIC SCHOOL BUS functions as a mark for a series of books, where the record contained evidence of use of the designation displayed prominently on many different book covers, as well as evidence that applicant promoted the term as a series title, that others used the designation in book reviews to refer to a series of books, and that purchasers recognized the designation as indicating the source of a series of books).

1202.09(a)(ii)(B)    Control over the Nature and Quality of the Goods

Alternatively, an applicant may show that the name of an author or performing artist functions as a source indicator by submitting documentary evidence that the author/performer controls the quality of his or her distributed works and controls the use of his or her name. Such evidence would include license agreements and other documentary or contractual evidence. See In re Polar Music Int’l AB, 714 F.2d 1567, 1572, 221 USPQ 315, 318 (Fed. Cir. 1983) (holding the name of the musical group ABBA functions as a mark for sound recordings where a license agreement showed that the owner of the mark, ABBA, controlled the quality of the goods, and other contractual evidence showed that the owner also controlled the use of the name of the group).

In In re First Draft, 76 USPQ2d 1183, 1191 (TTAB 2005), the Board found that the applicant failed to meet the Polar Music test, noting that:

[W]e have neither any evidence bearing on [the question of applicant’s control over the quality of the goods] nor even any representations by counsel regarding such matters. This is in stark contrast to Polar Music, wherein there was detailed information and documentary (i.e., contractual) evidence regarding the relationship between the performing group ABBA and its “corporate entity,” as well as evidence of the control such corporation maintained in dealings with a manufacturer and seller of its recordings in the United States.

If the applicant maintains control over the quality of the goods because the goods are published or recorded directly under the applicant’s control, the applicant may submit a verified statement that “the applicant publishes or produces the goods and controls their quality.” In re Arnold, 105 USPQ2d 1953, 1958 (TTAB 2013) .

Link to the rest at Trademark of Examining Procedure, July 2021

From reading this, one might presume that the services of a trademark attorney might be useful. PG has done some trademark work in the distant past, but is not interested in doing any in the future. You’re looking for an intellectual property attorney who has registered trademarks before.

PG would be interested in the experiences of any authors who have gone through the process of trademarking their name.

From The Balance – Small Business:

Want to trademark your name? It can be done, but first, ask yourself why you want to spend the money – and time – to trademark your name. You must also meet specific requirements to trademark your name with the U.S. Patent and Trademark Office (USPTO).

A trademark is a piece of intellectual property that allows you to “brand” something so that no one else can copy or use it. It distinguishes your company and its products from everyone else. Don’t confuse a trademark with a copyright; copyrights are for works like books, movies, and videos.

Trademarking your name gives you an additional brand and keeps others from using your name.

. . . .

People trademark their names all the time. Actors, authors, sports figures, and other celebrities often trademark their names.

For example, IPWatchdog used the example of Sarah Palin, who has trademarked her name (actually it’s a service mark, not a trademark), The category is “Educational and entertainment services, namely, providing motivational speaking services in the field of politics, culture, business, and values.”

Small Business at Chron.com says, “A person’s name can only be registered as a trademark if it is widely recognized in commerce.”

. . . .

Registering your name can provide you with added protection against cybersquatters (people who pick up domain names to confuse people and get money).

Of course, the best reason to trademark your name is to prevent others from using it. For example, Morgan Freeman trademarked his name to prevent it from being used by a company to market its products. Freeman’s trademark is listed in the category “Entertainment services, namely, live, televised, and movie appearances by a professional entertainer.”

Link to the rest at The Balance – Small Business

Before you get all excited, check out the post which follows this one chronologically.

From The Duke University School of Law:

In 2022, the public domain will welcome a lot of “firsts”: the first Winnie-the-Pooh book from A. A. Milne, the first published novels from Ernest Hemingway and William Faulkner, the first books of poems from Langston Hughes and Dorothy Parker. What’s more, for the first time ever, thanks to a 2018 law called the Music Modernization Act, a special category of works—sound recordings—will finally begin to join other works in the public domain. On January 1 2022, the gates will open for all of the recordings that have been waiting in the wings. Decades of recordings made from the advent of sound recording technology through the end of 1922—estimated at some 400,000 works—will be open for legal reuse.

. . . .

Why celebrate the public domain? When works go into the public domain, they can legally be shared, without permission or fee. That is something Winnie-the-Pooh would appreciate. Community theaters can screen the films. Youth orchestras can perform the music publicly, without paying licensing fees. Online repositories such as the Internet Archive, HathiTrust, and Google Books can make works fully available online. This helps enable access to cultural materials that might otherwise be lost to history. 1926 was a long time ago. The vast majority of works from 1926 are out of circulation. When they enter the public domain in 2022, anyone can rescue them from obscurity and make them available, where we can all discover, enjoy, and breathe new life into them.

The public domain is also a wellspring for creativity. The whole point of copyright is to promote creativity, and the public domain plays a central role in doing so. Copyright law gives authors important rights that encourage creativity and distribution—this is a very good thing. But it also ensures that those rights last for a “limited time,” so that when they expire, works go into the public domain, where future authors can legally build on the past—reimagining the books, making them into films, adapting the songs and movies. That’s a good thing too! As explained in a New York Times editorial:

When a work enters the public domain it means the public can afford to use it freely, to give it new currency . . . [public domain works] are an essential part of every artist’s sustenance, of every person’s sustenance. 

Just as Shakespeare’s works have given us everything from 10 Things I Hate About You and Kiss Me Kate (from The Taming of the Shrew) to West Side Story (from Romeo and Juliet), who knows what the works entering the public domain in 2022 might inspire? As with Shakespeare, the ability to freely reimagine these works may spur a range of creativity, from the serious to the whimsical, and in doing so allow the original artists’ legacies to endure.

. . . .

Books

• A. A. Milne, Winnie-the-Pooh, decorations by E. H. Shepard 
• Ernest Hemingway, The Sun Also Rises
• Dorothy Parker, Enough Rope (her first collection of poems)
• Langston Hughes, The Weary Blues
• T. E. Lawrence, The Seven Pillars of Wisdom (later adapted into the film Lawrence of Arabia)
• Felix Salten, Bambi, A Life in the Woods
• Kahlil Gibran, Sand and Foam
• Agatha Christie, The Murder of Roger Ackroyd
• Edna Ferber, Show Boat
• William Faulkner, Soldiers’ Pay (his first novel)
• Willa Cather, My Mortal Enemy
• D. H. Lawrence, The Plumed Serpent
• H. L. Mencken, Notes on Democracy

. . . .

Movies Entering the Public Domain

• For Heaven’s Sake (starring Harold Lloyd)
• Battling Butler (starring Buster Keaton) 
• The Son of the Sheik (starring Rudolph Valentino)
• The Temptress (starring Greta Garbo)
• Moana (docufiction filmed in Samoa)
• Faust (German expressionist classic)
• So This Is Paris (based on the play Le Réveillon)
• Don Juan (first feature-length film to use the Vitaphone sound system)
• The Cohens and Kellys (prevailed in a famous copyright lawsuit)
• The Winning of Barbara Worth (a Western, known for its flood scene)

Musical Compositions

• Bye Bye Black Bird (Ray Henderson, Mort Dixon)
• Snag It (Joseph ‘King’ Oliver)
• Gentlemen Prefer Blondes (Irving Berlin)
• Black Bottom Stomp (Ferd ‘Jelly Roll’ Morton)
• Someone To Watch Over Me (George Gershwin, Ira Gershwin)
• Nessun Dorma from Turandot (Giacomo Puccini, Franco Alfano, Giusseppe Adami, Renato Simoni)
• Are You Lonesome To-Night (Roy Turk, Lou Handman)
• When the Red, Red Robin Comes Bob, Bob, Bobbin’ Along (Harry Woods)
• Ke Kali Nei Au (“Waiting For Thee”) (Charles E. King), in 1958 renamed Hawaiian Wedding Song with new lyrics (English) by Hoffman & Manning
• Cossack Love Song (Otto Harbach, Oscar Hammerstein II, George Gershwin, Herbert Stothart)

Link to the rest at The Duke University School of Law

From Cory Doctorow via Medium:

On January 1, 2019 something extraordinary happened. For the first time since 1998, the American public domain got bigger.

What happened in 1998? Congress — led by Rep Sonny Bono — extended the copyright on all works by 20 years. Works that had already been in the public domain went back into copyright. Works that were in copyright got an extra 20 years. The public domain…froze.
This was a wanton, destructive act. The vast majority of works that the Sonny Bono Act covered were out-of-print and orphaned, with no known owner. Putting them back into copyright for 20 years prevented their reproduction, guaranteeing that many would vanish from the historical record altogether.

As to the minuscule fraction of works covered by the Act that were still commercially viable: the creators of those works had accepted the copyright bargain of life plus 50 years. Giving them more copyright on works they’d already produced could not provide an incentive to make anything more. All it did was transfer value from the public domain into a vanishing number of largely ultra-wealthy corporate private hands.

As to living, working creators: those who’d made new works based on public domain materials that went back into copyright found themselves suddenly on the wrong side of copyright. Their creative labor was now illegal. Any working, living creator that contemplated making a new work based on material from the once-public-domain was now faced with tracking down an elusive (or possibly nonexistent) rightsholder, paying lawyers to negotiate a license, and subjecting their work to the editorial judgments of the heirs of long-dead creators.

The Sonny Bono Act is often called the Mickey Mouse Act, a recognition of the extraordinary blood and treasure that Disney spilled to attain retroactive copyright extension. This extension ensured that Steamboat Willie — and subsequent Mickey Mouse cartoons, followed by other Disney products — would remain Disney’s for another two decades.

Link to the rest at Cory Doctorow via Medium

PG would modify the factual description in the OP with a small change – The Sonny Bono Act was pushed through by California congresswoman Mary Bono (Sonny Bono’s widow and Congressional successor). Sonny served from 1995-98 and Mary, after winning a special election to become Sonny’s replacement, served from 1998-2013 after she failed to win another re-election.

Prior to getting into politics, Sonny was a musical performer, the less-talented half of Sonny & Cher.

Sonny and Cher divorced in 1975 due to Sonny’s serial affairs with other women. Prior to marrying Sonny, his second wife, Mary, later Congresswoman Bono, had worked as a cocktail waitress and fitness instructor.

Sonny and Mary each represented the congressional district dominated by Palm Springs and nearby Palm Desert, retirement destinations for the wealthy and semi-wealthy which include a number of retired actors. Author Ann Rice (Interview with the Vampire, etc.) lived in Palm Springs until her death in 2021.

PG suggests the Bonos are yet another “only in California” stories.

From The New York Times (9 February 2008):

On Friday, a lawyer named Anthony Falzone filed his side’s first big brief in the case of Warner Bros. Entertainment and J.K. Rowling v. RDR Books. Falzone is employed by Stanford Law School, where he heads up the Fair Use Project, which was founded several years ago by Lawrence Lessig, perhaps the law school’s best-known professor. Falzone and the other lawyers at the Fair Use Project are taking the side of RDR Books, a small book publisher in Muskegon, Michigan, which is the defendant.

As you can see from the titans who have brought the suit, RDR Books needs all the legal firepower it can muster.

As you can also probably see, the case revolves around Harry Potter. Rowling, of course, is the creator of the Harry Potter series – “one of the most successful writers the world has ever known,” crowed Neil Blair of the Christopher Little Literary Agency, which represents her. Warner Brothers, meanwhile, holds the license to the Harry Potter movies. And though Warner appears to be footing much of the bill, Rowling appears to be the party driving the litigation.

“I feel as though my name and my works have been hijacked, against my wishes, for the personal gain and profit of others and diverted from the charities I intended to benefit,” she said in a declaration to the court.

And what perfidious act of “hijacking” has RDR Books committed? It planned to publish a book by Steven Vander Ark, a former school librarian who for the past half-decade or so has maintained a fan site called the Harry Potter Lexicon. The Lexicon prints Harry Potter essays, finds Harry Potter mistakes, explains Harry Potter terminology, devises Harry Potter timelines, and does a thousand other things aimed at people who can’t get enough Harry Potter. In sum, it’s a Harry Potter encyclopedia for obsessive fans.

So long as the Lexicon was a Web site, Rowling looked kindly upon it; she once gave it an award and claimed to use it herself at times. But when Vander Ark tried to publish part of the Lexicon in book form – and (shudder!) to make a profit from his labors – Rowling put her foot down. She claims that she hopes to publish her own encyclopedia someday and donate the proceeds to charity; a competing book by Vander Ark would hurt the prospects for her own work.

But more than that, she is essentially claiming that the decision to publish, or to license, a Harry Potter encyclopedia is hers alone, since, after all, the characters in her books came out of her head. They are her intellectual property. And in her view, no one else can use them without her permission.

“There have been a huge number of companion books that have been published,” Blair said. “Ninety-nine percent have come to speak to us. In every case they have made changes to ensure compliance. They fall in line.” But in the case of the Lexicon, he said, “these guys refused to contact us.”

“They refused to answer any questions,” Blair said. “They refused to show us any details.”

They fall in line. There, in that one angry sentence, lies the reason that Falzone and his colleagues have agreed to help represent RDR Books. And in a nutshell, it’s why Lessig decided to start the Fair Use Project.

It’s a tad ironic that this dispute centers on a book, because ever since the recording industry began suing Napster, most of the big legal battles over copyright have centered on the Internet. The lawsuit Viacom filed against YouTube last year to prevent people from posting snippets of Viacom’s copyrighted television shows is the most obvious recent example.

But if you look a little further back, you’ll see that for a very long time now, copyright holders have made a series of concerted efforts to both extend copyright protection, and to make it an ever-more powerful instrument of control. More than a century ago, copyrights lasted for 14 years – and could be extended another 14 if the copyright holder petitioned for the extension. Today, corporate copyrights last for 95 years, while authors retain copyright for 70 years after their death. The most recent extension of copyright, passed by Congress in 1998, was driven in no small part by Disney’s desire to prevent Mickey Mouse and several of its other classic cartoon characters from falling into the public domain.

. . . .

At the same time, though, copyright holders have tried to impose rules on the rest of us – through threats and litigation – that were never intended to be part of copyright law. They sue to prevent rappers from taking samples of copyrighted songs to create their own music. Authors’ estates try to deprive scholars of their ability to reprint parts of books or articles because they disapprove of the scholar’s point of view. Lessig likes to cite a recent, absurd case where a mother put up on YouTube a video of her baby dancing to the Prince song “Let’s Go Crazy” – and Universal Music promptly sent her a cease-and-desist letter demanding that she remove the video because it violated the copyright.

There is no question that these efforts have had, as we like to say in the news business, a “chilling effect.” Roger Rapoport, who owns RDR Books, told me that ever since the case was filed, he has heard dozens of horror stories. “One university publisher told me they have given up literary criticism because of this problem,” he said.

. . . .

About a decade ago, though, Lessig decided to fight back. His core belief is that copyright protection, as he put to me, “was meant to foster creativity, not to stifle it” – yet that is how it is now being used. He fought the copyright extension of 1998 all the way to the Supreme Court. (He lost.) He founded a group called Creative Commons, which is, in a sense, an alternative form of copyright, allowing creators to grant far more rights to others than the traditional copyright system. And he founded the Fair Use Project to push back against, well, against copyright hogs like Rowling.

No one is saying that anyone can simply steal the work of others. But the law absolutely allows anyone to create something new based on someone else’s art. This is something the Internet has made dramatically easier – which is part of the reason why we’re all so much more aware of copyright than we used to be. But it has long been true for writers, film-makers and other artists. That’s what “fair use” means.

And that is what is being forgotten as copyright holders try to tighten their grip. Documentary film makers feel this particularly acutely, for instance. My friend Alex Gibney, who directed the recent film “Taxi To The Dark Side,” about torture, tried to get Fox to license him a short clip from the television series “24” to illustrate a point one of his talking heads was making about how the show portrays the use of torture at the CIA. Fox denied his request. Gibney, a fair use absolutist, used it anyway – but many filmmakers would have backed away.

Which is also why the Harry Potter Lexicon case is so important. For decades, fair use has been thought to extend to the publication of companion books that build on the work of someone else – so long as the new work adds something new and isn’t simply a rehash of the original. There are dozens of companion books to the Narnia chronicles, for instance, or the works of J.R.R. Tolkien.

. . . .

And, in a roundabout way, that gets us back what the Internet has wrought. For, as Lessig points out, “anybody who owns a $1,500 computer” can now create culture that is based on someone else’s creation. Indeed, we do all the time – on Facebook, on YouTube, everywhere on the Internet. If the creation of that content is deemed to be a violation of copyright, Lessig said, “then we have a whole generation of criminals” – which is terribly corrosive to the society. But if it is fair use, as it ought to be, then it becomes something quite healthy – new forms of free expression and creativity.

Link to the rest at The New York Times

From the U.S. Copyright Office:

More Information on Fair Use

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.  Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

• Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:  Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair.  This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below.  Additionally, “transformative” uses are more likely to be considered fair.  Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
• Nature of the copyrighted work:  This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
• Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
• Effect of the use upon the potential market for or value of the copyrighted work:  Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the factual circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.  

Please note that the Copyright Office is unable to provide specific legal advice to individual members of the public about questions of fair use. 

Link to the rest at U.S. Copyright Office

PG says that, while there are areas of legal clarity regarding what is and what is not fair use under US copyright law, the boundary between those two sets of rights includes some gray areas.

If you look at the Copyright Office explanation above, you’ll find a list of fundamental descriptions of fair use:

• Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
• Nature of the copyrighted work
• Amount and substantiality of the portion used in relation to the copyrighted work as a whole
• Effect of the use upon the potential market for or value of the copyrighted work

Concepts like purpose and character of the use, amount and substantiality of the portion used and effect of the use upon the potential market include a number of bright legal lines, but have also left quite a lot of gray areas that have been the subject of lots of litigation.

In the nature of litigation decisions, the more valuable the copyright, the more likely the owner of the copyright (or her attorneys) will be to carefully examine each instance where a work by another author seems similar in some ways to the original creation.

In addition to infringing the creator’s copyright, there is also an issue of trademark rights. As a general proposition, the title of a book is not protectable as a trademark. That said, “Harry Potter” is definitely a trademark and if you decide to publish a book titled, “Harry Potter and The Grinch,” you’re likely to hear from Ms. Rowling (or maybe Warner Brothers) and attorneys for Dr. Seuss Enterprises, L.P.

Here’s a link to the details about the U.S. trademark for The Grinch.

From The Economist:

Chan marshall (pictured), who goes by the stage name Cat Power, has been a fixture on the American indie-rock scene since the mid-1990s. She is a highly regarded artist, praised for her sombre, powerful songwriting and sound. Her 11th album, “Covers”, a set of versions of previously recorded songs, was released this month. It will be the third such LP she’s put out, following “The Covers Record” (2000) and “Jukebox” (2008); they make up more than a quarter of her total album releases.

It is noteworthy that Ms Marshall, or any musician, makes the distinction between “covers” and “original music” at all. For the first six decades of the recorded-music era, which began in earnest in the early 20th century, there was a clear division of labour: writers wrote and singers sang. Two industries—the recording one, and the songwriting one—grew up in parallel. In America, the writing arm was nicknamed Tin Pan Alley, and the business was concentrated on a single Manhattan street. Tin Pan Alley’s early fortune lay in sheet music, and a popular song could sell in the millions.

As recorded music took over, professional songwriters remained in demand. Even the rock’n’roll era merely shifted the action 20 blocks north, to the Brill Building. Competing versions of numbers jockeyed for position in the charts; the idea that a song could belong to a particular artist, other than in a strict licensing sense, had little traction. A “standard” was just that—a song so widely performed that only a very special reading could affix it to any one artist.

Woody Guthrie and Hank Williams were prominent singer-songwriters in the early-to-mid-20th century, but both were anomalies. Two acts were chiefly responsible for a major shift in the early 1960s: Bob Dylan and The Beatles. These performers created a wider perception that the writer and the artist not only could be, but should be, one and the same. Their youthful stardom, aided by a new mass media (and television in particular), popularised the idea of the musical auteur. By 1985 Mr Dylan was in a position to boast that: “Tin Pan Alley is gone. I put an end to it. People can record their own songs now.”

This was an oversimplification. Work by Mr Dylan and the Beatles was at the time covered widely, and lucratively—in Mr Dylan’s case, often before he had released a recorded version, making him a kind of one-man Tin Pan Alley in himself. In the 2010s he recorded three consecutive sets of pre-rock’n’roll American pop standards, a loving tribute to the very songs he once claimed to have made obsolete.

This in turn raises the question: what exactly constitutes an “original”? Does a musician “cover” a songwriter, or a recording? Ms Marshall’s album features a version of “These Days”, written by Jackson Browne, and first recorded by Nico in 1967. Mr Browne would not release a version until 1973, and his iteration bore a notable resemblance to a country-rock arrangement issued by Greg Allman earlier that year. Ms Marshall’s spare, folky take steers closest to the Nico version (on which Mr Browne played a distinctive guitar part), and includes a verse Nico performed but Mr Browne later omitted. So is she covering Nico, or Mr Browne? To whom does the song “belong”?

You might argue that if it belongs to anybody, a song belongs to whoever delivers it most memorably. Elvis Presley was above all an interpreter, and a superb one. “Hound Dog”, “Blue Suede Shoes”, “Suspicious Minds” and (until Pet Shop Boys audaciously reworked it) “Always On My Mind” have long been thought of as “Elvis songs”, yet all are cover versions. Nina Simone and Johnny Cash—no mean songwriter, either of them—likewise possessed a gift for claiming spiritual ownership of any song they covered.

An outstanding cover version can wrest a song from the grasp of even the biggest stars. So commanding is Sinéad O’Connor’s “Nothing Compares To U”, for example, that it relegates the song’s author, Prince, to a footnote. Even Mr Dylan is not impervious to this phenomenon; when touring for the first time since he recorded it, he played his song “All Along The Watchtower” not in the subdued folk-pop style of the original of 1967, but as a searing blast of rock plainly indebted to the authoritative version of 1968 by the Jimi Hendrix Experience (pictured above). In effect, he was covering a cover of his own song.

Link to the rest at The Economist

PG says copyright is a wondrous and multi-faceted bundle of rights.

From The Journal of Copyright in Education and Librarianship:

At the launch of one of the early online open educational resources (OER) in 2002, the approach to addressing copyright was uncertain. Did the university or the faculty own their material? How would the third-party material be handled? Was all of its use considered fair use under Section 107 of the U.S. Copyright Act (Title 17, United States Code) because of its educational purpose? Or was permission-seeking necessary for this project to succeed and protect the integrity of faculty and university? For many years, this OER was conservative in its approach to third-party material, avoiding making fair use claims on the theory that it was too risky and difficult to prove in the face of an infringement claim. Additionally, being one of the early projects of its kind, there was fear of becoming a target for ambitious copyright holders wanting to make headlines (and perhaps win lawsuits). It was not until 2009 that the Code of Best Practices in Fair Use for OpenCourseWare was written by a community of practitioners who believed that if fair use worked for documentary film makers, video creators, and others (including big media), it worked in open education as well. Once this Code was adopted, universities and institutions were able to offer more rich and complete course content to their users than before. This paper explains how it happened at this early open educational resource offering.

Link to the rest at The Journal of Copyright in Education and Librarianship

PG says that whenever a group of people get together to create something – a book, a collection of stories, a computer program, a mural, etc., etc., someone should think about copyright in the finished project.

If the group is going to make their creation free to all the world forever and ever, one place to locate decent licensing agreements at no charge is Creative Commons.

Creative Commons was established about twenty years ago to “build a vibrant, collaborative global commons,” mostly, but not completely online. The principal original goal was to encourage an open internet where information and knowledge was available with no strings attached for anyone who could use a device that accessed the internet.

In connection with this goal, the organization promulgated a collection of “free, easy-to-use copyright licenses that provide a simple, standardized way to give your permission to share and use your creative work— on conditions of your choice.”

If you go Here, the Creative Commons website walks you through a quite-nice set of information and questions that lead a visitor to the Creative Commons license that will work the best for them if they want to share their creation free.

One important caveat – The Creative Commons licenses all include you making your work available to the rest of the world without the rest of the world having to pay you anything for your creations.

If you want to exert control over your creation in any material way beyond being mentioned as the creator or one of the creators in some manner a Creative Commons license is not what you want. If you want to make certain you get paid in some manner for your creation, a Creative Commons license is not what you want.

You’ll have to talk to an attorney.

Regarding the OP, the ironic thing about the creators of Open Courseware at MIT and others institutions of higher education could, at no cost to themselves, contracted the university attorney.

Every major institution of higher education and a great many not-so-major institutions (in the United States at least) has a university or college attorney who is supposed to help make sure the faculty don’t do something that’s legally stupid.

For even the dimmest of university counsel, a project whereby a group of university employees to get together with a bunch of people all over the place to create a computer program with lots and lots of information in it would have triggered a call to outside Intellectual Property Counsel who could have saved the project the sorts of problems mentioned in the OP.

From The Authors’ Guild:

The U.S. Court for the Western District of Washington awarded $7.8 million in statutory damages to 12 Authors Guild members, Amazon Publishing, and Penguin Random House for 52 acts of copyright infringement in a default judgment against Kiss Library, permanently shutting down the Ukraine-based ebook piracy ring. In a decisive opinion on December 20, 2021, Judge Marsha Pechman, senior district judge for the Western District, decided all claims for the plaintiffs and awarded $150,000 per infringed book, the maximum penalty allowed under U.S. law. The plaintiffs filed suit against the book piracy entity and its operators on July 7, 2020.

. . . .

“We could not be happier with the decision,” said Mary Rasenberger, CEO of the Authors Guild.” Authors rarely have the necessary resources to fight commercial-scale piracy and take on protracted litigation, so we are extremely grateful to Amazon Publishing and Penguin Random House for their collaboration on this action. Ebook and audiobook piracy impacts the ability of authors to earn a living and the ability of publishers to invest in new books that present a diversity of ideas, people and viewpoints so crucial to democracy, which is why all are working together to combat intellectual property theft. We are thrilled that the Court quickly grasped the facts and granted us each of our requests—imposing the maximum financial penalty, shutting down all Kiss-related domains, and sending a pointed message to pirated content websites.”

“Whether authors earn $500 or $5 million a year from the sales of their books, book piracy deprives them of their right to be compensated for their creative work. That’s why we felt it necessary to file suit against Kiss to send a message to piracy sites on behalf of the Guild’s 12,000 members—when you steal from one of us, you steal from us all,” said Doug Preston, one of the plaintiffs, a bestselling thriller novelist who also serves as President of the Authors Guild. “We will not stand idly by and allow criminals to profit from the illegal sale of our books in which we invest so much of our time, talents and emotional capital—robbing writers of their works not only steals money from authors and their families; it takes away a piece of the author’s inner self.”

. . . .

Owned and operated by defendants Rodion Vynnychenko and Artem Besshapochny, Kiss Library did business through Kissly.net, Libly.net, Cheap-Library.com, and dozens of other domain names that illegally sold pirated ebooks at discounted prices to unsuspecting readers. These defendants sought to avoid detection and accountability by repeatedly masking their identities; registering the scheme’s domains with false information; and propping up a network of ever-changing domains. Even after the plaintiffs filed this lawsuit, the defendants continued their evasive tactics by attempting to destroy evidence relevant to their piracy scheme and dodge service in Ukraine. Once brought to light through plaintiffs’ investigation and filings, the Court found that the defendants’ “pattern of deception and evasion,” as well as “the seriousness of the misconduct,” justified imposing maximum statutory penalties and a broad permanent injunction. (Order at 6, 13.) The Court also supported its order by recognizing the “public’s compelling interest in protecting copyright owners’ marketable rights to their work and the economic incentive to continue creating literary works.” (Order at 9 (internal quotation marks omitted).)

Link to the rest at The Authors’ Guild

From Writer Beware:

In 2014, I wrote a post about Copyright Registration Online, one of many faux and exploitative copyright registration “services” that cater to writers’ anxiety about theft and plagiarism, particularly of unpublished work, by promising to register US copyright or to provide some sort of copyright verification service.

Naturally, there are fees for these services. At the time I wrote the post, Copyright Registration Online was charging $135–which was a ripoff, on two fronts. You can register copyright yourself online at the US Copyright Office for only $45. Just as important: there’s absolutely no need to register copyright for unpublished work.

Some registration services are basically pass-throughs: they do submit registration applications to the US Copyright Office, just at a seriously inflated cost. Others provide their own “registration” documentation or certificates, often based on some sort of timestamp. These are completely worthless, not just because they could easily be faked and are therefore unlikely to stand up in court, but because there is no legal substitute for registration with the US Copyright Office (in the United States, you must previously have registered your copyright in order to file an infringement action). Just like so-called poor man’s copyright, any “registration” received from a source other than the Copyright Office has zero legal validity.

So why am I dredging up old blog posts? Because Copyright Registration Online is still around, and it has seriously upped the disinformation factor.

Now also calling itself Copyright Registry or Copyright Registry Online, it’s got a spiffy new web domain, website, and eagle-and-flag logo. Services are basically the same; prices are a little higher, but not much: “registration” for a single author with a single work will set you back $144.

. . . .

Complaints at the BBB–which currently gives the company an F rating–further illustrate this point.

. . . .

By law, you own copyright from the moment you write down the words. Registration is an extra step that gives you the right to pursue an infringement claim in US court (other countries have no such requirement for filing a claim). But theft and plagiarism are vanishingly unlikely at the query stage. Reputable agents and editors won’t risk their reputations by stealing; disreputable ones aren’t interested in your work, only in your money. Infringement only becomes a danger when your work is exposed to a wide audience: in other words, published.

Link to the rest at Writer Beware

PG notes that for registrations with the US copyright office are made through the copyright.gov website. You may wish to confirm the .gov URL to make certain you haven’t clicked on one of the services about which Writer Beware warns in the OP.

Like more than a few government websites, copyright.gov is not a triumph in website design. However, if you make your way to the Registration Portal (note the .gov extension), you’re in the general area where you want to be.

Once you’re at the Registration Portal (the government’s use of “Portal” is, PG assumes, an attempt to be regarded as internet-savvy), you’ll likely have to work your way through some preliminary warnings to hunt for a blue button that promises to give you access to the “eCO” (Electronic Copyright Office, but “eCO” sounds more technical) registration system.

Once you get to eCO, you’re into full government world. You see a very simple screen with one button marked “Log in to eCo”.

Some may wonder how they are supposed to log in if they haven’t registered themselves as a user. Go ahead and click the log-in button anyway. To the best of PG’s knowledge, this is not a federal criminal offence.

When you click that button, you’ll likely see a popup warning that using browsers other than Firefox may result in a less than optimal experience. PG has found no problems (at least with the copyright website) using Chrome, but your experience may vary.

After you’ve clicked, you’ll see another page with an ID/Password form for your Copyright Office eCO credentials, which you won’t have if you haven’t signed up to obtain those credentials.

Some (many?) would-be registrants will give up at this point, but go ahead and click.

When you get to the next page, your greatest fears will be realized. Your eyes will immediately go to User/Password fill-in boxes.

Don’t panic. Instead look carefully below those prominent boxes and you will see a much-less prominent blue on dark gray link that says “If you’re a new user, click here”. If a private organization used such a design, someone would sue on behalf of those with less-than optimal vision.

If you wait too long to find the obscure link, you’ll be informed that your session has timed out and you’ll have to click on the obscure link again.

If you’ve made it this far, you should see a signup page last modified in 1981 which includes several boxes to fill with your personal information, including “Salutation”. You’ll want to click on the obscure blue-on-gray link for User ID Help to make certain you read the instructions concerning what is or is not a government-approved User ID.

You’ll also be informed that you must change your password every sixty days or “when instructed”. If it takes you longer than sixty days to write your next book, don’t worry, you’ll be instructed to change your password.

Once you stumble through the portal, you’ll be confronted with yet more things to read and fill out, but if you’ve had the patience to work your way through the eCO gate, you’ll get through the registration process as well. Just don’t schedule anything else for an hour or two. And don’t trust some organization that shows up in a Google internet search to do this for you.

99% of the time, you don’t need a lawyer to register your copyright.

Full Disclosure: PG wades through this government website mess for Mrs. PG’s books but for no one else. He’s sorry if you’re disappointed, but won’t change his mind except for people he’s known for thirty years or more and is still talking to.

From The Authors Guild:

The Authors Guild submitted comments to the U.S. Copyright Office recommending changes to copyright law and policy to stop internet platforms like Facebook and Google from monetizing news content freely, and to give newspaper and magazine publishers more power to negotiate with platforms that aggregate news content. The comments come in response to the Copyright Office’s “Publisher Protection Study,” which seeks to understand the effects of “news aggregators” like Google and Facebook on newspapers and magazines with the goal of issuing policy guidelines to protect the industry.

The Guild’s comments emphasized that the Facebook and Google “duopoly” over the digital advertising market has siphoned revenues out of the press publishing ecosystem, leading to mass closure or consolidation in the industry. According to the Pew Center, 2,100—or about one in five—newspapers or magazines have shuttered or merged into larger entities since 2008, with advertising revenues sinking from $55 billion per year in 2005 to just $8.8 billion in 2010. The comments also underscored the impact on writers and journalists, pointing out that full-time journalism jobs had dwindled by 26% since 2008 and per-word and piece-based freelance rates were vastly lower than they were 15 years ago.

. . . .

Apart from the clear economic harm to journalists, freelance writers, and press publishers, control of the news space by internet platforms have also dealt serious blows to democratic culture. As the last four years show, when the public relies on misinformation and fake news instead of real journalism—which, unlike clickbait, takes hard work, time, and resources to produce—the cost to society are immense. 

Link to the rest at The Authors Guild

From Nolo:

Fictional characters can, under U.S. law, be protected separately from their underlying works. This is based on the legal theory of derivative copyrights. To obtain this type of protection, a creator must prove that the characters are sufficiently unique and distinctive to merit this protection.

A derivative work is protected as part of the bundle of rights given to the creator of the original work under federal law, specifically 17 U.S.C. § 106 of the Copyright Act of 1976.

. . . .

Some characters are famous beyond the specific book or movie in which they first appeared. Consider, for example, James Bond, Fred Flintstone, Hannibal Lecter, or Wonder Woman. These characters are much more than any particular film or TV episode. They are famous entities unto themselves, capable of launching franchise series.

Thus, the creator of such a character would want broad protection over the character itself, rather than merely the specific work in which the character appeared.

Judge Learned Hand of the U.S. Court of Appeals for the Second Circuit established the standard for character protection in a case called Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), in which he stated, “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”

For example, alien characters stranded on Earth is a popular and recurring theme as portrayed in My Favorite Martian, Starman, Alien Nation, Transformers, District 9, Predators, and The Man Who Fell to Earth. The idea of a stranded alien character, without embellishment, is not protectable.

Here’s another example: A relatively unknown play, Lokey From Maldemar, featured an alien with powers of levitation and telepathy, stranded on earth and pursued by authoritarian characters. The playwright sued the owners of the movie E.T.—The Extra-Terrestrial, claiming that her character was infringed by the E.T. character. A federal court disagreed, ruling that that the character from Lokey was too indistinct to merit protection in Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984).

However, once a stranded alien character acquires more distinctive features or aspects—for example, a big-headed, long-necked alien with a glowing finger who murmurs “Phone home”—it becomes distinct enough to merit protection and its owners can prevent others from using the character’s image and expression.

Similarly, a person with superpowers who wears a cape and fights crime is not protectable, because it is too generic. But if this hero acquires more specificity, for example by having a secret identity as a news reporter and a crush on Lois Lane, then he can become protectable under copyright law.

. . . .

Depending on a writer or illustrator’s specific industry, it’s not difficult to understand why the protection of fictional characters is such an important issue for copyright owners. Exploitation of fictional characters is a crucial source of revenue for entertainment and merchandising companies. Characters such as Superman and Batman are the foundations of massive entertainment franchises and are commonly protected under both copyright and trademark law.

The protection afforded to fictional characters sometimes clashes with the fair use right to comment upon or criticize those characters. This is particularly common in parody cases. For example, one court refused to permit an X-rated parody, Scarlett Fever, that used characters from Gone With the Wind. (Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F.Supp. 351 (N.D. Ga. 1979).

Another court permitted publication of a novel using characters from Gone With the Wind but written from a slave’s perspective. (Suntrust Bank v. Houghton Mifflin Co., 268 F.2d 1257 (11th Cir. 2001).) The disparity in the two opinions—both based on Gone With the Wind—may be due to the fact that in one work the characters were lampooned in a broad sexual farce, while in the other the characters were used to provoke discussion about racial stereotypes.

In short, the copyright protection available to fictional characters is a complex issue with a good deal of money at stake. Courts will often weigh the fair use considerations against the rights of copyright owners to control derivative works. The more specific and less generic a particular character is, the more likely that the character can receive protection outside of the original work in which it appears.

Link to the rest at Nolo

From The Ringer:

Oh“Oh my god.” These were the words of Nick Thorburn, the main creative force of the band Islands (and composer of the original Serial theme), when someone on Twitter kindly informed him in June that he had covered someone else’s song without realizing it—and released it. “Carpenter,” the third track on this year’s Islands album, Islomania, was not, in fact, written by him at all. It was essentially a cover of the 2014 Julie Byrne track “Prism Song,” which, ironically enough, starts with a musical quote, of sorts, referencing a Tim Hardin line that has seeped deep into the Western world’s musical consciousness: “If I were a carpenter …”

Thorburn explained in a statement to Stereogum that he had heard “Prism Song” years ago, likely on a streaming playlist, and decided to record a quick version of it on his phone. Then, when digging through his recordings, looking for inspiration in making an album, he found the recording, forgot its origin, and misattributed it to be from his own mind. “‘Oops’ does not suffice,” Thorburn wrote. “As is now blindingly evident, my memory has some pretty severe limits.” He took full responsibility, apologized to Byrne, and noted that she would be receiving 100 percent of the publishing rights for the song. (For her part, Byrne didn’t publicly comment; both Thorburn and Byrne declined interview requests for this article.)

This is a particularly wild story, but the nature of it is not unheard of—albeit usually in more subtle, complicated forms. The day Islomania came out this past June, Lorde admitted in an interview with Zane Lowe that the “blueprint” of her new single “Solar Power” was “Loaded,” a 1990 song from the genre-hopping Scottish band Primal Scream, which she said she had never heard before writing her song. (The implication here is that Lorde believes she and cowriter Jack Antonoff made something undeniably indebted to “Loaded,” but purely by happenstance.) At some point after “Solar Power” was made, but before it was released, someone in Lorde’s camp brought this issue up, and she addressed it head-on: “I reached out to Bobby [Gillespie, bandleader of Primal Scream], and he was so lovely about it,” Lorde told Lowe. “He was like, ‘You know, these things happen. You caught a vibe that we caught years ago.’ And he gave us his blessing.”

. . . .

Yet there was still a reason that people around Lorde brought up the issue in the first place. Historically, claims of copyright infringement—the legal issue that covers plagiarism of protected works—in music have tended to occur in situations where the melodic overlap is pretty sizable. But a 2015 ruling shook up the industry’s understanding of what constitutes a legitimate case, when Robin Thicke’s no. 1 hit, “Blurred Lines,” was found to have infringed upon Marvin Gaye’s classic “Got to Give It Up” despite the lack of a traditionally compelling musicological argument that the two songs were egregiously similar. (Nevertheless, there can be no doubt that “Blurred Lines” was inspired on a production level by “Got to Give It Up,” something cowriter Pharrell Williams plainly admitted.) This was a controversial decision, upheld on appeal in 2018, which many felt established a troubling legal precedent: that a song could be guilty of plagiarizing another song’s “feel.” It created a culture of fear, with songwriters and executives unsure of what is allowed in the act of writing and recording a song.

“People are more concerned than they were before,” says Joe Bennett, a professor at the Berklee College of Music and a forensic musicologist—someone who is hired to offer an expert opinion, either privately or in court, about similarities between two pieces of music. “I get a lot of calls from clients [lately] who want me to do a bit of preemptive work to just check that something isn’t too close to an earlier work, often inadvertently.”

We’re now squarely within a new era of music copyright litigation, signaled by a steep wave of fresh cases and settlements arriving on top of what was already a steadily rising tide. But while plagiarism has never been a larger industry issue than it is today, it also has never been more poorly defined. And given the way songwriters often borrow ideas without realizing that they’re borrowing—a documented artistic tendency that is likely increasing in frequency in our chaotic online world—this latest squall of disputes may be just the beginning of an even larger storm.

At least in the case of “Solar Power,” though, even if Primal Scream theoretically wanted to pursue litigation, the group probably would have a tough—if not impossible—road to legal victory. That’s not because the songs aren’t distinctly kindred; the outro/chorus of “Solar Power” and the main progression of “Loaded,” adjusted for key, can essentially be played over each other. But simple, repeating chord patterns (a.k.a. chord loops) like this one are, according to Bennett, not copyright protectable. “There are a bunch of chord loops that exist in the world,” Bennett explains, “and they’re standard building blocks that songwriters use.”

There are other details that might raise the eyebrows of those comparing the songs, such as the similar instrumentation in both—and the fact that the cover of Screamadelica, the album with “Loaded” on it, features an illustration of a sun, when Lorde has referred to Solar Power as being a “sun-worship album.” (OK, that one’s a stretch.) But in terms of “Loaded” being able to win against “Solar Power” in a hypothetical court of law, Bennett thinks it would be “far away from” a lock.

Part of the issue is also that it’s not clear how much of any aspect of “Loaded,” a melodically simple song with clear lineage to a variety of previous songs and genres, is undisputedly copyright protected in the first place: “Most of it is not,” says Charles Cronin, a lawyer and professor who founded the Music Copyright Infringement Resource, a comprehensive database of music copyright litigation maintained by George Washington University. “[‘Loaded’ is similar to ‘Solar Power’] rhythmically, yeah, and it has similar sounds. But musically, no, in part because I would argue that there’s so little original musical expression in either of them.”

Adding credence to this belief is the fact that “Solar Power” also has been noted for its comparability to another early-’90s hit: George Michael’s “Freedom! ’90.” (And that’s not even to mention the Lorde-acknowledged debt that “Solar Power” has to Robbie Williams’s 2000 song “Rock DJ,” which features a reference to A Tribe Called Quest’s “Can I Kick It?” that is prominently echoed in Lorde’s song.) Perhaps Lorde directly addressed the connection to “Loaded” simply because it came before George Michael’s hit—“Freedom! ’90” was released a mere eight months later, in October 1990—but the overlaps here also cannot be denied.

Broadly speaking, it’s the same chord loop and the same sunny, celebratory textures featured in “Loaded,” “Freedom! ’90,” and “Solar Power.” But at the center of all this is the fact that the progression and the “feel” in these songs is firmly rooted within the gospel tradition, and doesn’t belong to any of them. As Rembert Browne noted in Vulture in 2016, when explaining why he had such fondness for “Freedom! ’90” as a child: “It sounded like church.”

The week after “Solar Power” came out, George Michael’s estate issued a statement: “We are aware that many people are making a connection between [‘Freedom! ’90’ and ‘Solar Power’], which George would have been flattered to hear, so on behalf of one great artist to a fellow artist, we wish her every success with the single.”

Link to the rest at The Ringer

From Eater London:

The worlds of London food and international cookbooks are rocking after far-reaching allegations of plagiarism by a highly regarded chef. Cookbook publisher Bloomsbury Absolute has withdrawn Makan, the debut cookbook by Mei Mei owner Elizabeth Haigh, after allegations of plagiarism from Sharon Wee, the author of Growing Up in a Nonya Kitchen, a cookbook memoir published by Marshall Cavendish in 2012.

Wee issued a statement on her Instagram on Thursday 7 October, saying that she had been “distressed to discover that certain recipes and other content from my book had been copied or paraphrased without my consent in Makan by Elizabeth Haigh, and I immediately brought this matter to the attention of the book’s publisher, Bloomsbury Absolute.” Wee’s book is set to be republished in November 2021.

Eater contacted Wee, Haigh, and Bloomsbury for comment. Wee told Eater that she cannot elaborate on her statement for legal reasons; a spokesperson for Haigh said, “Elizabeth Haigh is not able to answer your questions, for legal reasons.” Bloomsbury Absolute initially returned an out-of-office auto-reply, before pointing to a statement given to industry publication The Bookseller, which followed a report in the Daily Mail: “This title has been withdrawn due to rights issues.”

. . . .

The email then presented examples from both books side-by-side:

Wee:

“My mother, like many of her friends, placed their most frequently used condiments and ingredients within easy access while they cooked. That often meant a plastic tray . . . where there were small bottles of soy sauces, sesame oil, and jars of minced garlic, salt and sugar. In the past there would also have been a metal container to hold recycled cooking oil.”

Haigh:

“My mother . . . kept her most frequently used condiments and ingredients within easy reach of where she cooked. That often meant a plastic tray full of little jars of oils, crispy-fried shallots or garlic, crushed garlic, salt and sugar. There was also usually an old metal pot for recycled or discarded frying oil.”

Wee (on transcribing her mother’s recipes):

“It faced many challenges along the way. It first started with converting her handwritten recipe measurements from katis and tahils (old Chinese measurements) and learning the different daum (or herbs) and rempah (spice pastes).”

Haigh:

“It faced many challenges along the way. It first started with converting her handwritten recipe measurements . . . and learning the different daun (or herbs) and rempah (spice pastes).”

Wee:

“Ginger is thought to ‘pukol angin’ (beat the toxic gases and dampness out of you to relieve aches and pains). Hence, post-natal mothers were given lots of ginger to ‘beat the wind.’ In my case, a backache, especially in the winter, was often remedied with a knob of ginger, with the sliced surface dipped in brandy. The brandied ginger was used to rub my back and it left red streak marks, indicating the wind in my flesh and bones. It always worked.

The ginger flavour is strongest just beneath its skin. Therefore, leave the skin on to get the most of the flavour.”

Haigh:

“Ginger is thought to have healing properties – pukol angin (to beat the toxic gases and dampness out of you to relieve aches and pains). This is why postnatal mothers were given lots of ginger to ‘beat the wind’ . . . The strongest ginger is just beneath the skin, so to get the most flavour out of it don’t peel it.”

Further allegations followed, suggesting that recipes had been lifted from more than one source. Singaporean poet and critic Daryl Lim shared two Instagram posts detailing similarities between Makan and other recipes, from blogs and other cookbooks, as well as between Haigh’s book and Sharon Wee’s.

Link to the rest at Eater London

Are Recipes and Cookbooks Protected by Copyright?

From The Copyright Alliance:

Recently, the owner of a website that aimed to “fix online recipes” by removing ads and stories apologized and removed the website after receiving complaints via social media. While the website hoped to create an easier reading experience for visitors, the owner acknowledged that a great deal of time, money, and effort go into creating these recipes and the content that accompanies them.

Given the recent controversy, we thought this would be a good time to discuss the copyrightability of recipes. Can you copyright a recipe and, if so, which elements? What about copyright protection for cookbooks?

What Copyright Law Protects

Copyright law protects original works of authorship that are fixed in a tangible medium of expression. So, a work needs to be original, independently created by a human author, and possess at least some minimal degree of creativity while also being set in a sufficiently permanent form.

Recipes easily meet most of these requirements. For instance, they usually satisfy the “fixed in a tangible medium of expression” factor by being recorded in a cookbook or website or even on a piece of paper. They are also independently created by a human author — usually someone’s grandma, it would seem. However, despite meeting most of the requirements, standing alone, recipes are usually not protected by copyright.

Can You Copyright a Recipe?

Recipes are usually not protected by copyright due to the idea-expression dichotomy. The idea-expression dichotomy creates a dividing line between ideas, which are not protected by copyright law, and the expression of those ideas, which can be protected by copyright law.

There are rare times where the idea and the expression of the idea are so intertwined that there is only one way, or very few ways, to express the idea. When this is the case, that expression of the idea is not protected by copyright law. A recipe’s list of ingredients, or simple directions, is so intertwined with the idea of that recipe that there are very few ways to express this idea; so, a simple list of ingredients or simple directions will not usually be protected by copyright.

Based on this reasoning, the United States Copyright Office Compendium, the Office’s manual for examiners, states that a mere listing of ingredients or contents is not copyrightable, as lists are not protected by copyright law (chapter 314.4(F)). The Office has also stated that a “simple set of directions” is uncopyrightable.

In addition, courts have found that recipes are wholly factual and functional, and therefore uncopyrightable. As the Sixth Circuit described in Tomaydo-Tomahdo, LLC v. Vozary, “the list of ingredients is merely a factual statement, and as previously discussed, facts are not copyrightable. Furthermore, a recipe’s instructions, as functional directions, are statutorily excluded from copyright protection.”

Further, in Publications Int’l., Ltd. v. Meredith Corp., the Seventh Circuit explained that certain recipes may be copyrightable, as there is a difference between barebones recipes and those that “convey more than simply the directions for producing a certain dish.”

Elements of a Recipe That Can Be Protected By Copyright

Recipes can be protected under copyright law if they are accompanied by “substantial literary expression.” This expression can be an explanation or detailed directions, which is likely why food and recipe bloggers often share stories and personal anecdotes alongside a recipe’s ingredients.

A recipe can also be protected by copyright law if it creatively describes or explains the cooking or baking process connected to the list of ingredients. Even if the description of the recipe is sufficiently creative and copyrightable, the copyright will not cover the recipe’s ingredient list, the underlying process for making the dish, or the resulting dish itself, which are all facts. It will only protect the expression of those facts. That means that someone can express the recipe in a different way — with different expression — and not infringe the recipe creator’s copyright.

Cookbooks Can Be Protected as Copyrightable Compilations

What about a compilation of recipes, like those found in a cookbook? A cookbook can be protected under copyright law as a compilation if the selection, arrangement, and coordination of the included recipes is creative.

The copyright for a compilation does not cover the individual works included in the compilation, such as the individual recipes within the cookbook.

Link to the rest at The Copyright Alliance

Even if it were possible to copyright recipes, the Guardian’s account indicates that the offended chef was not the creator of the recipes and that the chef transcribed her mother’s recipes:

It first started with converting her handwritten recipe measurements from katis and tahils (old Chinese measurements) and learning the different daum (or herbs) and rempah (spice pastes).”

PG claims no special expertise about UK copyright law, but some quick research on the UK Copyright Licensing Agency website indicates that recipes may not be copyrightable under UK law for the same rationale as applies to recipes under US law.

From The Guardian in 2006:

Can a recipe – as some of the world’s top restaurateurs and food experts are now asking – ever be considered intellectual property?

An altogether more complex dish has prompted this debate on the online food forum, eGullet, this week. The recipe, in brief: prawns are pureed using an enzyme called transglutiminase, extruded into a noodle, cooked, and served with smoked yoghurt, paprika and nori. Not the sort of meal that two chefs separated by 10,355 miles are likely to invent at the same time.

Still, identical versions of this dish did appear simultaneously on the websites of two cutting-edge restaurants – Melbourne’s Interlude, run by a 31-year-old British chef, Robin Wickens, a former student of Raymond Blanc; and Wylie Dufresne, head chef/owner of WD-50, a restaurant in New York’s trendy Lower East Side. The former, it quickly transpired, had copied the latter, without crediting the innovator. Interlude also appeared to have produced direct replicas of recipes from several other restaurants, leading to one eGullet poster to warn Wickens to prepare to be labelled a “fraud”.

Wickens told the Guardian that the near-identical dishes were a result of a research trip to WD-50 and said that, “At no time did I try and claim that I invented any of the dishes that I had experienced in the US and recreated at Interlude.”

“It might be a bloody cheek. But so what?” says restaurant reviewer Egon Ronay. “It goes on all the time. Chefs travel the world looking for dishes and try to imitate them in their own menus. That’s how good cooking spreads – it’s what food is all about. Frankly, in my view, it doesn’t matter a damn.”

Dufresne is reluctant to criticise Wickens, who recently sent him a letter of apology. Whatever his justification, Wickens has opened a pandora’s box. As an eGullet editorial put it: “We believe the Interlude controversy is not a simple matter of a lone Australian restaurant copying a few dishes from halfway around the world. Rather, it’s one of the most significant issues facing the global culinary community today.”

But can you copyright a recipe? Could Heston Blumenthal register his roast spiced cod with castelluccio lentils? Or St John’s Fergus Henderson his roast bone marrow with parsley salad? No, says Alex Papakyriacou, of intellectual property law firm Briffa. “Case law suggests that reproducing a written recipe in the preparation of a dish is not copyright infringement. The same goes for recipes that have been communicated aurally or by a chef deciphering the ingredients and method involved in the preparation of a recipe by sampling a dish prepared to it.”

Nor is it possible to patent a recipe, either in the UK or US, because the organic development of food will never constitute an “inventive step”. In short: you will never know definitively where your pizza or prawn noodle originated.

But if there is no legal basis crediting a dish, is there a moral incentive? “Only if it’s a signature dish by one of the very few truly original chefs in the world,” says Richard Corrigan, the chef owner of two of London’s top restaurants, Lindsay House and Bentley’s Oyster Bar and Grill. “Everyone has been robbed in the middle of London, it’s normal. But it doesn’t bother me; I’m sometimes tickled. Every restaurant in London is after my bread recipe, for example, and it’s not easy to keep it a secret.”

Link to the rest at The Guardian

Even if it were possible to copyright recipes, the Guardian’s account indicates that the offended chef was not the creator of the recipes and that the chef transcribed her mother’s recipes:

It first started with converting her handwritten recipe measurements from katis and tahils (old Chinese measurements) and learning the different daum (or herbs) and rempah (spice pastes).”

In her Instagram post decrying the use of these recipes, Ms. Wee wrote, “I wrote my book in loving memory of my mother. I credit her and her peers for their anecdotes, recipes and cooking tips. This was their story.”

PG suggests that this statement, if true, could be interpreted to mean that all sorts of people besides Ms. Wee’s mother used the recipes in her cookbook and even Ms. Wee’s mother was not the creator of the recipes which Ms. Wee wishes to take credit and prevent others from copying.

The fact that Ms. Wee was the first person to write down these recipes in English and publish them doesn’t make her any sort of a creator of the type that copyright laws are designed to protect.

To be clear, plagiarism may rightly be regarded as bad behavior, but unless the plagiarist violates copyright law, there’s no foul under US law.

From The New York Times:

There is a sunny earnestness to Dawn Dorland, an un-self-conscious openness that endears her to some people and that others have found to be a little extra. Her friends call her a “feeler”: openhearted and eager, pressing to make connections with others even as, in many instances, she feels like an outsider. An essayist and aspiring novelist who has taught writing classes in Los Angeles, she is the sort of writer who, in one authorial mission statement, declares her faith in the power of fiction to “share truth,” to heal trauma, to build bridges. (“I’m compelled at funerals to shake hands with the dusty men who dig our graves,” she has written.) She is known for signing off her emails not with “All best” or “Sincerely,” but “Kindly.”

On June 24, 2015, a year after completing her M.F.A. in creative writing, Dorland did perhaps the kindest, most consequential thing she might ever do in her life. She donated one of her kidneys, and elected to do it in a slightly unusual and particularly altruistic way. As a so-called nondirected donation, her kidney was not meant for anyone in particular but instead was part of a donation chain, coordinated by surgeons to provide a kidney to a recipient who may otherwise have no other living donor. There was some risk with the procedure, of course, and a recovery to think about, and a one-kidney life to lead from that point forward. But in truth, Dorland, in her 30s at the time, had been wanting to do it for years. “As soon as I learned I could,” she told me recently, on the phone from her home in Los Angeles, where she and her husband were caring for their toddler son and elderly pit bull (and, in their spare time, volunteering at dog shelters and searching for adoptive families for feral cat litters). “It’s kind of like not overthinking love, you know?”

Several weeks before the surgery, Dorland decided to share her truth with others. She started a private Facebook group, inviting family and friends, including some fellow writers from GrubStreet, the Boston writing center where Dorland had spent many years learning her craft. After her surgery, she posted something to her group: a heartfelt letter she’d written to the final recipient of the surgical chain, whoever they may be.

. . . .

The procedure went well. By a stroke of luck, Dorland would even get to meet the recipient, an Orthodox Jewish man, and take photos with him and his family. In time, Dorland would start posting outside the private group to all of Facebook, celebrating her one-year “kidneyversary” and appearing as a UCLA Health Laker for a Day at the Staples Center to support live-organ donation. But just after the surgery, when she checked Facebook, Dorland noticed some people she’d invited into the group hadn’t seemed to react to any of her posts. On July 20, she wrote an email to one of them: a writer named Sonya Larson.

. . . .

When it comes to literary success, the stakes can be pretty low — a fellowship or residency here, a short story published there. But it seemed as if Larson was having the sort of writing life that Dorland once dreamed of having. After many years, Dorland, still teaching, had yet to be published. But to an extent that she once had a writing community, GrubStreet was it. And Larson was, she believed, a close friend.

Editors’ Picks

Over email, on July 21, 2015, Larson answered Dorland’s message with a chirpy reply — “How have you been, my dear?” Dorland replied with a rundown of her next writing residencies and workshops, and as casually as possible, asked: “I think you’re aware that I donated my kidney this summer. Right?”

Only then did Larson gush: “Ah, yes — I did see on Facebook that you donated your kidney. What a tremendous thing!”

Afterward, Dorland would wonder: If she really thought it was that great, why did she need reminding that it happened?

. . . .

They wouldn’t cross paths again until the following spring — a brief hello at A.W.P., the annual writing conference, where the subject of Dorland’s kidney went unmentioned. A month later, at the GrubStreet Muse conference in Boston, Dorland sensed something had shifted — not just with Larson but with various GrubStreet eminences, old friends and mentors of hers who also happened to be members of Larson’s writing group, the Chunky Monkeys. Barely anyone brought up what she’d done, even though everyone must have known she’d done it. “It was a little bit like, if you’ve been at a funeral and nobody wanted to talk about it — it just was strange to me,” she said. “I left that conference with this question: Do writers not care about my kidney donation? Which kind of confused me, because I thought I was in a community of service-oriented people.”

It didn’t take long for a clue to surface. On June 24, 2016, a Facebook friend of Dorland’s named Tom Meek commented on one of Dorland’s posts.

Sonya read a cool story about giving out a kidney. You came to my mind and I wondered if you were the source of inspiration?

Still impressed you did this.

Dorland was confused. A year earlier, Larson could hardly be bothered to talk about it. Now, at Trident bookstore in Boston, she’d apparently read from a new short story about that very subject. Meek had tagged Larson in his comment, so Dorland thought that Larson must have seen it. She waited for Larson to chime in — to say, “Oh, yes, I’d meant to tell you, Dawn!” or something like that — but there was nothing. Why would Sonya write about it, she wondered, and not tell her?

Six days later, she decided to ask her. Much as she had a year earlier, she sent Larson a friendly email, including one pointed request: “Hey, I heard you wrote a kidney-donation story. Cool! Can I read it?”

. . . .

Ten days later, Larson wrote back saying that yes, she was working on a story “about a woman who receives a kidney, partially inspired by how my imagination took off after learning of your own tremendous donation.” In her writing, she spun out a scenario based not on Dorland, she said, but on something else — themes that have always fascinated her. “I hope it doesn’t feel too weird for your gift to have inspired works of art,” Larson wrote.

Dorland wrote back within hours. She admitted to being “a little surprised,” especially “since we’re friends and you hadn’t mentioned it.” The next day, Larson replied, her tone a bit removed, stressing that her story was “not about you or your particular gift, but about narrative possibilities I began thinking about.”

But Dorland pressed on. “It’s the interpersonal layer that feels off to me, Sonya. … You seemed not to be aware of my donation until I pointed it out. But if you had already kicked off your fictional project at this time, well, I think your behavior is a little deceptive. At least, weird.”

Larson’s answer this time was even cooler. “Before this email exchange,” she wrote, “I hadn’t considered that my individual vocal support (or absence of it) was of much significance.”

Which, though it was shrouded in politesse, was a different point altogether. Who, Larson seemed to be saying, said we were such good friends?

For many years now, Dorland has been working on a sprawling novel, “Econoline,” which interweaves a knowing, present-day perspective with vivid, sometimes brutal but often romantic remembrances of an itinerant rural childhood. The van in the title is, she writes in a recent draft, “blue as a Ty-D-Bowl tablet. Bumbling on the highway, bulky and off-kilter, a junebug in the wind.” The family in the narrative survives on “government flour, canned juice and beans” and “ruler-long bricks of lard” that the father calls “commodities.”

Dorland is not shy about explaining how her past has afforded her a degree of moral clarity that others might not come by so easily. She was raised in near poverty in rural Iowa. Her parents moved around a lot, she told me, and the whole family lived under a stigma. One small consolation was the way her mother modeled a certain perverse self-reliance, rejecting the judgments of others. Another is how her turbulent youth has served as a wellspring for much of her writing. She made her way out of Iowa with a scholarship to Scripps College in California, followed by divinity school at Harvard. Unsure of what to do next, she worked day jobs in advertising in Boston while dabbling in workshops at the GrubStreet writing center. When she noticed classmates cooing over Marilynne Robinson’s novel “Housekeeping,” she picked up a copy. After inhaling its story of an eccentric small-town upbringing told with sensitive, all-seeing narration, she knew she wanted to become a writer.

At GrubStreet, Dorland eventually became one of several “teaching scholars” at the Muse conference, leading workshops on such topics as “Truth and Taboo: Writing Past Shame.” Dorland credits two members of the Chunky Monkeys group, Adam Stumacher and Chris Castellani, with advising her. But in hindsight, much of her GrubStreet experience is tied up with her memories of Sonya Larson. She thinks they first met at a one-off writing workshop Larson taught, though Larson, for her part, says she doesn’t remember this. Everybody at GrubStreet knew Larson — she was one of the popular, ever-present people who worked there. On nights out with other Grubbies, Dorland remembers Larson getting personal, confiding about an engagement, the death of someone she knew and plans to apply to M.F.A. programs — though Larson now says she shared such things widely. When a job at GrubStreet opened up, Larson encouraged her to apply. Even when she didn’t get it, everyone was so gracious about it, including Larson, that she felt included all the same.

Now, as she read these strained emails from Larson — about this story of a kidney donation; her kidney donation? — Dorland wondered if everyone at GrubStreet had been playing a different game, with rules she’d failed to grasp. On July 15, 2016, Dorland’s tone turned brittle, even wounded: “Here was a friend entrusting something to you, making herself vulnerable to you. At least, the conclusion I can draw from your responses is that I was mistaken to consider us the friends that I did.”

Larson didn’t answer right away. Three days later, Dorland took her frustrations to Facebook, in a blind item: “I discovered that a writer friend has based a short story on something momentous I did in my own life, without telling me or ever intending to tell me (another writer tipped me off).” Still nothing from Larson.

Dorland waited another day and then sent her another message both in a text and in an email: “I am still surprised that you didn’t care about my personal feelings. … I wish you’d given me the benefit of the doubt that I wouldn’t interfere.” Yet again, no response.

The next day, on July 20, she wrote again: “Am I correct that you do not want to make peace? Not hearing from you sends that message.”

Larson answered this time. “I see that you’re merely expressing real hurt, and for that I am truly sorry,” she wrote on July 21. But she also changed gears a little. “I myself have seen references to my own life in others’ fiction, and it certainly felt weird at first. But I maintain that they have a right to write about what they want — as do I, and as do you.”

Hurt feelings or not, Larson was articulating an ideal — a principle she felt she and all writers ought to live up to. “For me, honoring another’s artistic freedom is a gesture of friendship,” Larson wrote, “and of trust.”

. . . .

Larson and Dorland have each taken and taught enough writing workshops to know that artists, almost by definition, borrow from life. They transform real people and events into something invented, because what is the great subject of art — the only subject, really — if not life itself? This was part of why Larson seemed so unmoved by Dorland’s complaints. Anyone can be inspired by anything. And if you don’t like it, why not write about it yourself?

But to Dorland, this was more than just material. She’d become a public voice in the campaign for live-organ donation, and she felt some responsibility for representing the subject in just the right way. The potential for saving lives, after all, matters more than any story. And yes, this was also her own life — the crystallization of the most important aspects of her personality, from the traumas of her childhood to the transcending of those traumas today. Her proudest moment, she told me, hadn’t been the surgery itself, but making it past the psychological and other clearances required to qualify as a donor. “I didn’t do it in order to heal. I did it because I had healed — I thought.”

The writing world seemed more suspicious to her now. At around the time of her kidney donation, there was another writer, a published novelist, who announced a new book with a protagonist who, in its description, sounded to her an awful lot like the one in “Econoline” — not long after she shared sections of her work in progress with him. That author’s book hasn’t been published, and so Dorland has no way of knowing if she’d really been wronged, but this only added to her sense that the guard rails had fallen off the profession. Beyond unhindered free expression, Dorland thought, shouldn’t there be some ethics? “What do you think we owe one another as writers in community?” she would wonder in an email, several months later, to The Times’s “Dear Sugars” advice podcast. (The show never responded.) “How does a writer like me, not suited to jadedness, learn to trust again after artistic betrayal?”

. . . .

By summer’s end, she and Sonya had forged a fragile truce. “I value our relationship and I regret my part in these miscommunications and misunderstandings,” Larson wrote on Aug. 16, 2016. Not long after, Dorland Googled “kidney” and “Sonya Larson” and a link turned up.

The story was available on Audible — an audio version, put out by a small company called Plympton. Dorland’s dread returned. In July, Larson told her, “I’m still working on the story.” Now here it was, ready for purchase.

She went back and forth about it, but finally decided not to listen to “The Kindest.” When I asked her about it, she took her time parsing that decision. “What if I had listened,” she said, “and just got a bad feeling, and just felt exploited. What was I going to do with that? What was I going to do with those emotions? There was nothing I thought I could do.”

So she didn’t click. “I did what I thought was artistically and emotionally healthy,” she said. “And also, it’s kind of what she had asked me to do.”

Dorland could keep ‘‘The Kindest” out of her life for only so long. In August 2017, the print magazine American Short Fiction published the short story. She didn’t buy a copy. Then in June 2018, she saw that the magazine dropped its paywall for the story. The promo and opening essay on American Short Fiction’s home page had startled her: a photograph of Larson, side-by-side with a shot of the short-fiction titan Raymond Carver. The comparison does make a certain sense: In Carver’s story “Cathedral,” a blind man proves to have better powers of perception than a sighted one; in “The Kindest,” the white-savior kidney donor turns out to need as much salvation as the Asian American woman she helped. Still, seeing Larson anointed this way was, to say the least, destabilizing.

Then she started to read the story. She didn’t get far before stopping short. Early on, Rose, the donor, writes a letter to Chuntao, asking to meet her.

I myself know something of suffering, but from those experiences I’ve acquired both courage and perseverance. I’ve also learned to appreciate the hardship that others are going through, no matter how foreign. Whatever you’ve endured, remember that you are never alone. … As I prepared to make this donation, I drew strength from knowing that my recipient would get a second chance at life. I withstood the pain by imagining and rejoicing in YOU.

Here, to Dorland’s eye, was an echo of the letter she’d written to her own recipient — and posted on her private Facebook group — rejiggered and reworded, yet still, she believed, intrinsically hers. Dorland was amazed. It had been three years since she donated her kidney. Larson had all that time to launder the letter — to rewrite it drastically or remove it — and she hadn’t bothered.

She showed the story’s letter to her husband, Chris, who had until that point given Larson the benefit of the doubt.

“Oh,” he said.

Link to the rest at The New York Times (unfortunately, there is a paywall) and thanks to D for the tip.

Perhaps PG is feeling a little unfeeling today. He blames an approaching winter storm.

From a strictly legal standpoint, nobody owns a story. The first person who created a story that follows the boy meets girl, boy loses girl, boy gets girl (and all the various gender variations to the basic structure) doesn’t own the story structure.

Copyright only protects a particular expression of a story, not the ideas behind the story. For example, PG can easily recall multiple instantiations of the following structure:

1. Heroine sets out on a quest to accomplish something important. The quest involves a journey.
2. Heroine encounters multiple obstacles and setbacks during the journey, some of which seem almost impossible to overcome.
3. Using strength, skill, brains, and perhaps, luck or divine assistance, heroine overcomes each obstacle and ends up triumphant in the end.

The Odyssey follows this pattern. So does the story of King Arthur’s quest for the Holy Grail, along with Bilbo Baggins in The Hobbit and The Lord of the Rings.

In the OP, Ms. Dorland was not the first person to face the emotional stress of donating a kidney, making a great sacrifice, or risking her life to help someone else, known or unknown.

For PG, Ms. Larson’s explanation, that she wrote a story “about a woman who receives a kidney, partially inspired by how my imagination took off after learning of your own tremendous donation” rings true and does not violate any exclusive right of Ms. Dorland to tell such a story. Whether Ms. Larson heard about Ms. Dorland’s experience directly from Ms. Dorland or from someone else is, for PG, immaterial.

To get a bit legalistic about the matter, if Ms. Dorland wished to make certain Ms. Larson didn’t use her experience to write a story, Ms. Dorland should have asked for Ms. Larson to keep the matter confidential at a minimum. Absent Ms. Larson’s agreement to keep the matter secret, for PG, even a request would not grant Ms. Dorland any sort of exclusive right to the story.

Perhaps if the two women had engaged in a lengthy series of exchanges that were clearly intended and understood to remain confidential and the kidney transplant story was part of this series of conversations, Ms. Dorland might have had some legitimate expectation concerning Ms. Larson’s keeping the matter confidential.

But perhaps PG has missed something in the OP that makes his opinions questionable. He’s happy to hear contrary views in the comments. If this is something only two women would understand (but a lot of pairs of women would understand the same way), PG is happy to be told of his male blindness as well.

PG note: IRL = In Real Life

From Vulture:

Contemporary entertainment is a hall of mirrors, an endless flow of simulacra: reality shows, biopics, documentaries, Instagram posts, Youtube vlogs. Podcasts and docuseries and movies process the same real-life events (Tonya Harding, the O.J. trial, Theranos), responding to one another, building on one another, until the metanarrative is part of the entertainment. I guess it is no surprise, then, that our fictionalized characters have starting launching protests about how we’ve used them. A woman named Alexis Nowicki recently wrote a Slate essay outing herself as the inspiration for the viral short story “Cat Person,” and Amanda Knox, who was falsely accused of murder by Italian authorities, wrote an Atlantic article about a movie that (very) loosely transposes her story. Tom McCarthy, the director of Stillwater, did acknowledge in a Vanity Fair interview that his movie was “directly inspired” by Knox’s case. I still can’t decide if this was all marketing — McCarthy trying to stir up the true-crime audience and situate his film amid the flow of Amanda Knox content — or naiveté, an artist assuming that people will understand that inspiration is about the spark of an idea, not the act of appropriation.

It must first be noted that Stillwater bears little resemblance to Knox’s nightmarish story. She was a 20-year-old American exchange student in Italy when her roommate, a British student named Meredith Kercher, was gruesomely murdered. The police immediately focused on Amanda and her Italian boyfriend, despite virtually no evidence pointing to them. Another man was eventually arrested and convicted of the crime, but Knox was still churned through the Italian legal system for eight years. She was definitively cleared of murder charges in 2015, but not before she spent four years in an Italian prison, where she was sexually harassed and subject to psychological abuse. Her diary was stolen and pored over by the rabid press, which portrayed her as a nymphomaniac femme fatale who had convinced two men to murder Kercher as part of a demented sex game.

Stillwater takes place not in Italy but in France, and the American exchange student, Allison Baker (played by Abigail Breslin), is not from a nice, working-class family in Seattle, like Knox, but a poor and chaotic home in Stillwater, Oklahoma, where she was raised by her grandmother because her father was a drug addict and her mother died by suicide. Allison is convicted of murdering her ex-girlfriend, a French Muslim girl, but insists that a mysterious man named Hakim committed the crime. The film takes place five years after her conviction, as her father, Bill (played by Matt Damon), who has cleaned up and is trying, belatedly and disastrously, to be in his daughter’s life, takes on the task of tracking down Hakim.

Knox was understandably angry that McCarthy used her case as shorthand to sell a movie that has little to do with her. She wrote a series of tweets that she spun into an essay for The Atlantic, venting her frustration at the way her name is used without her consent: the “Amanda Knox saga” or, worse, “the sordid Amanda Knox saga.” “I never asked to become a public person,” Knox writes, but she acknowledges, “My name, my face, my story have effectively entered the public imagination. I am legally considered a public figure, and that leaves me little recourse to combat depictions of me that are harmful and untrue.” After years of Italian authorities and the tabloid media creating fanciful and grotesque stories about her, Knox is weary of being made a subject of fiction.

Knox’s public vendetta against Stillwater may also be a matter of practical survival. As a best-selling author and true-crime podcaster, she is eager to maintain her hold on her story for both her dignity and her brand, which is her only source of income. The Vanity Fair article in which McCarthy discusses Stillwater ends, for some reason, with a rundown of the personal and legal debts that Knox and her family incurred during her trials, which reportedly ate up all of her nearly $4 million book deal. In a vast and lucrative true-crime media landscape on podcasts and streaming TV, big cases may appear like proprietary brands, but they are in fact public property. The “Amanda Knox case” does not belong to Amanda Knox, which seems to be the major source of her frustration: that she has neither the sole right to tell her story nor the exclusive right to profit off of it.

Link to the rest at Vulture

PG will spare long-suffering visitors to TPV yet another rant, but he doesn’t agree with the whole “appropriation” argument as it is used in a variety of settings.

He takes a very legal approach to his thinking. If something newsworthy happens that the newspapers and other news outlets can write and feature, its in the public sphere. At that point, anybody can pretty much do whatever they want with the story, particularly if they create a work of fiction that doesn’ t use a victim’s or key participant’s real name.

For PG, the key sentence in the OP (if it is correct), encapsulates the legal justification, “It must first be noted that Stillwater bears little resemblance to Knox’s nightmarish story.”

UK authors, illustrators protest mooted copyright changes

From Books+Publishing:

In the UK, over 2600 authors and illustrators have signed an open letter to protest the government’s reconsideration of copyright and trade laws, reports Publishing Perspectives.

The letter comes after publishing industry organisations launched the Save our Books campaign in June, protesting the mooted changes to copyright laws which they claim would lead to a flood of cheap copies of UK books coming back into the home market.

Signatories to the letter, which was published as an open letter to the editor in the Sunday Times, include Hilary Mantel, Kazuo Ishiguro, Philip Pullman, Maggie O’Farrell and Bernardine Evaristo.

‘The Intellectual Property Office is currently consulting on the UK’s future exhaustion regime,’ the letter reads. ‘If they decide to introduce an international exhaustion framework, authors will be unable to limit foreign editions of their books being sold into the UK—undercutting their domestic sales.’

In a statement, Publishers Association CEO Stephen Lotinga said the letter ‘is a clear and urgent call from authors to avoid an outcome that weakens our copyright laws’.

‘Britain is a world leader in publishing and currently exports more books than any other country in the world,’ said Lotinga. ‘The wrong outcome would jeopardize the whole books industry and vandalize the UK’s cultural landscape. It would mean fewer books, by fewer authors, for fewer readers.’

Prior to Brexit, the UK fell under the EU’s copyright agreement, meaning books could be sold freely in Europe but not reimported to the domestic market. The Intellectual Property Office has since launched a consultation ‘which considers a weakening of copyright rules crucial for exporting books around the world and ensuring that UK authors benefit financially from the sales’. Author royalties on export sales are much lower than in the UK market, so if authors can’t prevent their copies from around the world being sold back into the UK, export sales risk eroding domestic sales.

Link to the rest at Books+Publishing

Save Our Books campaign launches – June 2021

From the Publishers Association:

An alliance of organisations has launched the Save Our Books campaign in the face of a potentially devastating change to the UK’s copyright laws which could result in fewer books, by fewer authors, for fewer readers.

Save Our Books is a joint campaign from the Publishers Association, the Society of Authors, the Association of Authors’ Agents and the Authors’ Licensing and Collecting Society.

The government is reconsidering the UK’s approach to copyright and trade following Brexit. The Intellectual Property Office launched a consultation today (Monday 7^th June 2021) which considers a weakening of copyright rules crucial for exporting books around the world and ensuring UK authors benefit financially from those sales.

Changing the way these rules, known as ‘copyright exhaustion’, work would present serious dangers for the health of the books industry, including: 

• Significantly impacting authors’ livelihoods. Author royalties on export sales are much lower than what authors can earn from UK sales of books published for the UK market. If authors cannot prevent their copies from around the world being sold back into the UK, then an export sale risks eroding the corresponding domestic sale. Approximately two-thirds of authors’ incomes could be at risk on the sale of a book in this scenario. This would threaten the sustainability and diversity of UK authorship.
• Destroying creative export markets. The potential loss of up to 25% of the UK publishing industry’s revenue – almost £1bn – which would harm investment and could lead to publishing job losses.
• Damaging the already suffering British high street and further supporting online retail giants.

For the continued success of the publishing industry, the UK must ensure authors and publishers have control over the resale of their global products. The government must avoid an ‘international exhaustion framework’ and find a solution that allows UK authors and publishers to ensure different markets can access versions of a book best suited to their needs.

Link to the rest at Publishers Association

A bit more explanation in the event some visitors to TPV aren’t certain what this is all about.

1. In the US (and many other countries), the author of a book (or creator of a painting, etc.) may, under copyright law, prevent anyone from making, printing, selling, etc., the book without the author’s permission.
2. If the author publishes a printed book, either directly or through a publisher, and offers it for sale, the author receives some or all of the price a reader pays to purchase the book. This is the “First Sale” of the book.
3. Under US law, after the First Sale of the physical book, the purchaser can do whatever he/she wants with that physical copy, including reselling it as a used book, to anyone else without any obligation to make any further royalty payment to the author.
4. The term, “copyright exhaustion” is used to describe this limited right to control/be compensated for the first sale of the book. Under copyright law author has no further control over or right to receive payment from future sales of that copy of the book. This doesn’t mean that someone who purchases a physical book can make copies of the book to resell or anything like that. The author’s copyright is “exhausted” only for that particular copy of the book.
5. Thus, when a used bookstore resells a physical book that has been sold or given to the store, neither the author or the publisher receives any additional payment for this “second sale”.

(Note: Ebooks are licensed, not sold. The license agreement could effectively control this sort of problem for ebooks without all the issues involved with printed books. Most ebook, software, etc., licenses prohibit transfer, resale, etc.)

Based upon the two articles PG has read concerning the problem described in the OP, the problem seems to be that, if proposed changes are made in British copyright law, new physical British books sold to buyers other countries (European) could then be sent back to Britain as new books and sold without the author receiving the much higher royalties he/she would normally receive from the sale of a new physical book in Britain.

As a hypothetical example, a shipload of new books could be sent across the English Channel to France to a French buyer (generating a much smaller export royalty for the author), then sent right back to Britain and sold as new books (boxes never opened, in exactly the same condition they were when they left the printer) without the author receiving the much higher royalties that would have resulted if the publisher had sold the books to British book distributors and British bookstores before the round-trip to France and back.

(PG notes that the previous paragraph definitely qualifies as a run-on sentence for which one of PG’s beloved elementary school teachers, Mrs. Lascelles, would have lowered PG’s grade.)

From Jane Friedman:

We have an original oil painting hanging over our fireplace in the basement. We commissioned it many years ago from a young local artist whose work we enjoyed. The painting is probably worth less today than when we bought it in the late 90s.

On the back of the painting is an envelope, taped there by the artist. Inside is a handwritten “certificate of authenticity” signed by the artist indicating that he in fact did paint the picture, a whimsical scene of a stylized living room that was meant to be hung, well, in a living room. That certificate is the only proof of provenance we have should that artist suddenly become famous.

If instead of actually committing oil to canvas, however, the artist had created the work purely and only in a digital form, he could not have attached his physical certificate of authenticity to the work. Thus, when he emailed me the JPEG or PNG of the image for me to presumably print, frame, and hang over my fireplace, all I would have to prove provenance is his email indicating that the attached was his original work of authorship. And I might not even have such an email!

So, what to do to establish provenance of wholly digital works of art? NFTs! These digital certificates of authenticity, minted and recorded in the blockchain, certainly have their utility in terms of establishing provenance, but as a copyright lawyer, I frankly stand all amazed at the hoopla surrounding non-fungible tokens.

Why? Well, whence does a work of art derive value? Provenance, yes, but more accurately, scarcity. It’s Econ 101 all over again. If there’s only one The Starry Night, never to be re-created again by Van Gogh, and the provenance is not in question, that work of art is worth tens of millions of dollars. If there were fifty or a hundred The Starry Nights, however, all identical to the original and all painted by Van Gogh, the value of that masterpiece would certainly decrease.

So now consider a wholly digital work of art, a work that may be infinitely and easily copied and re-created by everyone who sees it on the internet simply by right-clicking on the image and selecting “Save As.” Or “Print.” Or “Email.” Or “Publish to Facebook.” Again, and again and again. There is thus no inherent scarcity to wholly digital works of art.

And this is true even if the artist has minted an NFT to go along with it because all an NFT is is a digital form of provenance. Admittedly the unique, immutable non-fungible token itself may have value as a novelty and because there is only one, but I worry about the general public’s perception that the NFT somehow establishes the value and creates scarcity of the underlying work of art.

And so now enters our old friend copyright law. With or without an NFT, the only way an artist can stop the unlawful reproduction of a digital work of art is by using copyright law, as is true for any work authored in, say, the last 100 years. For today, U.S. copyright law does not recognize an NFT as that “thing” that will get you admission to federal court to sue for copyright infringement. Unless a digital artist has registered her copyrights in her portfolio with the United States Copyright Office, she has no legal remedies against illegal copying of her digital works, NFTs notwithstanding, and this means she has no real effective mechanism to create scarcity of her work by controlling the supply.

So until Congress rewrites 17 USC Section 411(a) or the U.S. Supreme Court revisits its recent Fourth Estate decision (holding that the plaintiff must have a copyright registration certificate in hand to maintain an infringement action in federal court), an NFT is not equivalent to a copyright registration certificate issued by the Copyright Office. Thus, cutting-edge digital artists are left with a legal remedy hundreds of years old to create the requisite scarcity to drive value in their digital works, even if the artist has minted an NFT for the work.

. . . .

Think of it this way: an investor paid $69 million for the NFT minted in connection with Beeple’s digital work of art Everyday: The First 5,000 Days, but unless and until Beeple obtains a copyright registration certificate on that work, someone could, for example, print 1,000 T-shirts with exact copies of 5,000 Days on them and sell them on Etsy with relative impunity. 

Link to the rest at Jane Friedman

From The Verge:

There’s nothing like an explosion of blockchain news to leave you thinking, “Um… what’s going on here?” That’s the feeling I’ve experienced while reading about Grimes getting millions of dollars for NFTs or about Nyan Cat being sold as one. And by the time we all thought we sort of knew what the deal was, the founder of Twitter put an autographed tweet up for sale as an NFT.

You might be wondering: what is an NFT, anyhow?

After literal hours of reading, I think I know. I also think I’m going to cry.

Okay, let’s start with the basics:

What Is an NFT? What Does NFT Stand For?

Non-fungible token.

That doesn’t make it any clearer.

Right, sorry. “Non-fungible” more or less means that it’s unique and can’t be replaced with something else. For example, a bitcoin is fungible — trade one for another bitcoin, and you’ll have exactly the same thing. A one-of-a-kind trading card, however, is non-fungible. If you traded it for a different card, you’d have something completely different. You gave up a Squirtle, and got a 1909 T206 Honus Wagner, which StadiumTalk calls “the Mona Lisa of baseball cards.” (I’ll take their word for it.)

How do NFTs work?

At a very high level, most NFTs are part of the Ethereum blockchain. Ethereum is a cryptocurrency, like bitcoin or dogecoin, but its blockchain also supports these NFTs, which store extra information that makes them work differently from, say, an ETH coin. It is worth noting that other blockchains can implement their own versions of NFTs. (Some already have.)

What’s worth picking up at the NFT supermarket?

NFTs can really be anything digital (such as drawings, music, your brain downloaded and turned into an AI), but a lot of the current excitement is around using the tech to sell digital art.

. . . .

A lot of the conversation is about NFTs as an evolution of fine art collecting, only with digital art.

Do people really think this will become like art collecting?

I’m sure some people really hope so — like whoever paid almost $390,000 for a 50-second video by Grimes or the person who paid $6.6 million for a video by Beeple. Actually, one of Beeple’s pieces was auctioned at Christie’s, the famou—

Sorry, I was busy right-clicking on that Beeple video and downloading the same file the person paid millions of dollars for.

Wow, rude. But yeah, that’s where it gets a bit awkward. You can copy a digital file as many times as you want, including the art that’s included with an NFT.

But NFTs are designed to give you something that can’t be copied: ownership of the work (though the artist can still retain the copyright and reproduction rights, just like with physical artwork). To put it in terms of physical art collecting: anyone can buy a Monet print. But only one person can own the original.

No shade to Beeple, but the video isn’t really a Monet.

What do you think of the $3,600 Gucci Ghost? Also, you didn’t let me finish earlier. That image that Beeple was auctioning off at Christie’s ended up selling for $69 million, which, by the way, is $15 million more than Monet’s painting Nymphéas sold for in 2014.

Link to the rest at The Verge

From Investopedia:

Greater Fool Theory

The greater fool theory argues that prices go up because people are able to sell overpriced securities to a “greater fool,” whether or not they are overvalued. That is, of course, until there are no greater fools left.

Investing, according to the greater fool theory, means ignoring valuations, earnings reports, and all the other data. Ignoring the fundamentals is, of course, risky; and so people subscribing to the greater fool theory could be left holding the bag after a correction.

. . . .

Understanding the Greater Fool Theory

If acting in accordance with the greater fool theory, an investor will purchase questionably priced securities without any regard to their quality. If the theory holds, the investor will still be able to quickly sell them off to another “greater fool,” who could also be hoping to flip them quickly.

Unfortunately, speculative bubbles burst eventually, leading to a rapid depreciation in share prices. The greater fool theory breaks down in other circumstances, as well, including during economic recessions and depressions. In 2008, when investors purchased faulty mortgage-backed securities (MBS), it was difficult to find buyers when the market collapsed.

By 2004, U.S. homeownership had peaked at just under 70%. Then, in late 2005, home prices started to fall, leading to a 40% decline in the U.S. Home Construction Index in 2006. Many subprime borrowers were no longer able to withstand high interest rates and began to default on their loans. Financial firms and hedge funds that owned in excess of $1 trillion in securities backed by these failing subprime mortgages also began to move into distress.

Example of the Greater Fool Theory

Bitcoin’s price is often cited as an example of the greater fool theory. The cryptocurrency doesn’t appear to have intrinsic value (although this is an area of debate), consumes massive amounts of energy, and consists simply of lines of code stored in a computer network. Despite these concerns, the price of bitcoin has skyrocketed over the years.

At the end of 2017, it touched a peak of $20,000 before retreating. Attracted to the lure of profiting from its price appreciation, traders and investors rapidly bought and sold the cryptocurrency, with many market observers positing that they were buying simply because they hoped to resell at a higher price to someone else later. The greater fool theory helped the price of bitcoin zoom upwards in a short period of time as demand outstripped supply of the cryptocurrency.³

The years 2020-21 saw Bitcoin rise to new highs, topping $60,000 and hovering above $50,000 for weeks. This time, however, large institutional investors and corporations such as Tesla and PayPal have been involved in the buying—and it is debatable whether or not they can be considered fools. So, perhaps Bitcoin is not an example of the greater fool theory, after all.

Link to the rest at Investopedia

From Wikiquote:

Unattributed Variants to Murphy’s Law

• It is impossible to make anything foolproof because fools are so ingenious.
• Nothing is foolproof to a sufficiently capable fool.
• Make something idiot-proof, and they will build a better idiot.

Link to the rest at Wikiquote

PG suggests that copyright is only one of a great many problems with a collector’s market for Non-fungible tokens.

A great many things that are rare are not valuable. PG cites originals of his third-grade homework as examples.

From Above the Law:

Back in 2019, Techdirt wrote about a fascinating case involving a bogus CC license on a 3D scan of a 3000-year-old bust of Nefertiti. The person at the heart of the saga was the artist and open access activist Cosmo Wenman. His web site has some background on what he calls his “freedom of information projects“:

For more than a decade, museums around the world have been making high-quality 3D scans of important sculptures and ancient artifacts. Many institutions freely share those 3D scans with the public, allowing us to view, copy, adapt, and experiment with the underlying works in ways that have never before been possible. But some keep their scans out of public view, and I’ve been trying to help them see the light.

Following his success in liberating the 3D scan of Nefertiti, Wenman is now trying to do the same with 3D scans of the works of the great French sculptor Auguste Rodin. Many of these scans have been created by the Musée Rodin in Paris. There is a long and entertaining article (in the original French and an English translation – pdf) about Wenman’s pursuit of the 3D scans, and of the Musée Rodin’s refusal to share them. Wenman took an interesting tack, claiming that the museum’s 3D scans were documents subject to France’s freedom of information (FOIA) laws. It worked:

In late 2018 I sent a formal demand to Musée Rodin for access to all its 3D scans, citing French freedom of information laws. When the museum refused to comply, I brought the matter before the French government.

In June of 2019 the French government agency that oversees FOIA matters announced its first-of-its-kind opinion, in my favor; 3D scans produced by French national museums are in fact administrative documents and are subject to public disclosure. Musée Rodin is required by law to give the public access to its 3D scans of Rodin’s works.

Another victory for Wenman, then, but rather a hollow one. Despite the French government agency’s ruling, Musée Rodin continues to withhold the 3D scans. Wenman went on to file a suit against the museum in the Administrative Tribunal of Paris. Wenman wants the court to compel the museum to comply with the law, and to impose “significant” financial penalties for any delay. After more than a year with no response, the court directed the museum to present a defense. At the time of writing, Wenman is still waiting. However, given the unequivocal nature of the rulings against the Musée Rodin, he is confident:

Musée Rodin is going to fight, but I expect to win. The outcome will affect every national museum in France, inform policies at institutions around the world, and have interesting effects on the art market.

I’m shooting for a victory for open access, and freedom and innovation in the arts.

The knock-on effects of one person’s dogged pursuit of a few computer files could have a major impact on the wider availability of 3D scans of sculptures and ancient artifacts — a real win for the public domain.

Link to the rest at Above the Law

First, the application to authors – the 3D scans are a species of intellectual property, just like an author’s intellectual property interest in a story he/she creates.

The major difference is that, if the 3D model had been created from a scan of an original physical work made by or licensed from the creator of that work or as an original digitally-created work rather than one derived from a pre-existing physical object, the creator would have a protectable intellectual property interest in resulting model, the file created and, likely physical instantiations of that creation.

In this case, the scan was made from an original work created by Rodin, not by The Musée Rodin. Since Rodin’s original copyright interest in the original work expired a long time ago, absent some meaningful additional artistic contribution by someone during the 3D scan or with the resulting file, the scan is not a new protectible creation.

If PG goes to a museum and takes an iPhone photo of a 200-year-old painting, he hasn’t created anything new. (Whether he could post-process the photo into something creatively different from the original is a matter of degree. Enough post-processing and it might be a new creation. If PG just tweaked it so it looked a bit better than what the iPhone had produced on its own, probably not.)

Intellectual property experts are free, as usual, to criticize, supplement, etc., PG’s simplified description of the IP interests and their protectability under IP law in the comments below.

It may be obvious to many from the OP, but allow PG to summarize:

• The Musée Rodin houses a large collection of artworks created by by famous French sculptor August Rodin (1840-1917) at locations in Paris and Meudon, where Rodin lived and worked during the last twenty years of his life.
• Rodin’s best-known sculpture is The Thinker.

Under the supervision of the Ministry of Culture and Communication, the Musée Rodin is a non-subsidized national museum, a status that is quite unique on the French museum scene. The collections and works of art originating from the Auguste Rodin Donation, as well the acquisitions made by the museum, are the French State’s inalienable property. The Musée Rodin is administered by a board of trustees. The museum’s task is to make Rodin’s work known worldwide and to ensure that the moral right attached to it is respected.

Musée Rodin Public Establishment

It has become common for museums to perform in situ high-resolution 3-D computer scans of, at least, some of their most well-known sculptures. The result of the scan is a digital file that depicts every portion of the sculpture in great detail.

These scans can be easily shared throughout the world for, among other things, detailed examinations and analyses of the sculpture by experts everywhere without the necessity of interfering with the opportunity for the general public to view the original sculpture or risking any sort of damage to or loss of the sculpture by removing it from its current location for such examination. Like any other digital file, exact duplicates can be created at very little cost.

For purposes of a freedom of information request (which is governed by the laws of the country in question), a digital file is, absent special treatment under the law, a document like any other that a government (including government agencies) is required to produce if a FOIA request if filed in proper form.

In the US, per the US Health and Human Services you can file a FOIA request as follows:

Cosmo Wenman filed a freedom of information suit in France against the Musée Rodin when the museum apparently objected to his request for a copy of the 3D file of the Rodin statue.

Ultimately, the CADA AKA Commission D’Accès Aux Documents Administratifs (Commission for Access to Administrative Documents) ruled, in part:

the scans of works for which the Rodin Museum ensures the conservation, for purposes of both study and commercial exploitation, constitute administrative documents within the meaning of the aforementioned provisions, as soon as they have been elaborated and are held in the framework of the public service mission entrusted to this establishment. They are therefore, in principle, communicable to anyone who requests it.

The scans are administrative documents and Wenman was entitled to them.

One fact noted in a commentary PG read – The Musée Rodin receives over half of its annual revenue from its commercial activities, selling large and small reproductions of Rodin’s sculptures, printed copies of artworks, mugs, stationery, jewelry, t-shirts, lapel pins, tote bags, etc., with images derived from Rodin’s artworks, etc., as opposed to entrance fees paid by patrons.

So much for the museum’s laser focus on steadfastly protecting the artistic heritage of Rodin.

Once Mr. Wenman has a copies of the digital scans of the artworks in The Musée Rodin, you can expect him to make them widely available for anyone to download at no charge.

Mr. Wenman has been down this road before with the three-thousand-year-old Bust of Nefertiti, held by the Egyptian Museum and Papyrus Collection in Berlin.

You can download the 3-D digital file of the scan at the MakerBot Thingiverse.

Following are two videos that show/explain the 3-D printing process.

The first video is short, depicting the printing process for a smaller-than-life-size copy of the original.

The second video is longer, but more detailed, because the artist/mechanic used a home-sized printer to create a full-sized copy of the original.