At Hearing, Judge Appears Skeptical of Internet Archive’s Scanning and Lending Program

From Publisher’s Weekly:

After nearly three years of legal wrangling, the Internet Archive’s scanning and lending program finally got its day in court on Monday, March 20. And if Judge John G. Koeltl’s questions are any indication, the Internet Archive is facing an uphill battle.

Over the course of a 90-minute hearing on the parties’ cross motions for summary judgment, Koeltl appeared skeptical that there was sufficient basis in law to support the Internet Archive’s scanning and lending of print library books under a legally untested protocol known as controlled digital lending, and unconvinced that the case is fundamentally about the future of library lending, as Internet Archive attorneys have argued.

“To say that this case is about the ability of a library to lend a book that it owns ignores whether the library has a right to copy wholesale the book,” Koeltl offered at one point during an extended exchange with IA attorney Joseph Gratz. “Does a library have the right to lend a book that it owns? Of course,” the judge conceded. But the question at the heart of this case, he added, is “whether a library has the right to make a digital copy of a book that it owns and then lend that digital copy, which it has made without a license and without permission” to patrons. “To formulate the issue in this case as simply ‘does the library have a right to lend a book that it owns’ belies the issue in the case,” Koeltl said.

In its motion for summary judgment, lawyers for the publishers argue that the Internet Archive is guilty of illegally digitizing tens of thousands of in-copyright print books and making them available to readers worldwide. “No case has held or even suggested that IA’s conduct is a lawful fair use,” the publishers argued.

In its motion for summary judgment, the Internet Archive counters that its efforts to scan legally acquired physical books and lend the scanned editions in lieu of the print under conditions that mimic physical lending is protected by fair use. “The Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world,” the IA brief states. “Copyright law does not stand in the way of a library’s right to lend its books to its patrons, one at a time.”

Opening the day’s hearing, Elizabeth McNamara, arguing for the publishers, reiterated the plaintiff’s position that the Internet Archive’s scanning and lending program has no basis in law. “In short, CDL is built on a fallacy,” McNamara told the court. “No laws support this mass duplication and digitization of millions of books to distribute the entire world for the identical purpose that they were originally published, to be read. And for good reason—if this conduct was sanctioned, it would destroy the rights and controls of copyright holders.”

Disputing the defendant’s contention that there is no evidence of any net loss to the publishers from the IA’s program, McNamara argued that the existence of a “thriving” licensed access library e-book market, and potential lost license fees, was sufficient to show harm. “Because you don’t like the price or you don’t like the terms the answer to that is not that you steal,” McNamara told the court. “That is basically the IA’s answer, that we don’t like that market, we don’t want to pay it, it’s not in our interest to pay it and so we’re entitled to just duplicate your work without authorization and distribute it to the world. Well, that isn’t the way the law works and it’s not the way we work in markets.”

Arguing for the Internet Archive, Gratz maintained that the scanning and lending of library books under CDL rules is a lawful extension of the library’s traditional mission and that the IA’s creation of digital copies is “transformative” because the digital copy at issue is merely “incidental” to the loaning of a lawfully acquired corresponding physical book.

“Lending books by more efficient technological means does not offend the purposes of copyright,” Gratz argued. “Instead, it more effectively furthers those aims.”

Gratz also argued that there is “no evidence of harm such that taking away CDL from a library will harm those libraries and their patrons with no countervailing economic benefits to the publishers,” maintaining that the publishers did not lose “one dime” to the IA’s scanning and lending program.

But Koeltl peppered Gratz with questions throughout the hearing, appearing deeply skeptical that the Internet Archive’s fair use case was properly supported by case law, and unconvinced that the publishers’ market for library e-books was not impacted by libraries choosing to scan print books under CDL protocols.

“A library whether they hold a physical copy or not, has the ability to license an e-book from a publisher. Rather than pay that licensing fee to the publisher some libraries choose to make their own copy and to lend that copy. Why isn’t it self-evident that that deprives the publisher of the fees that the publisher could otherwise obtain from licensing an e-book to that library?” Koeltl asked.

“It is because with respect to the copies at issue in the CDL situation the question is not between OverDrive and nothing. The question is between physically lending a book to a particular patron, for which no payment would be due to a publisher, or digitally lending that book to the patron,” Gratz replied, adding that to find harm “there would need to be a reason to think that the publishers were worse off than the situation in which in which the fair use did not occur at all.” In fact, library e-book lending has grown throughout the existence of the IA’s scanning program, and actually surged during the height of the pandemic.

Koeltl sounded largely unmoved, however. And in her closing rebuttal, McNamara reiterated the publishers’ claim that “if CDL were given a green light” it would have a “a significant impact” not only on the library e-book market but on the consumer e-book market as well.

Link to the rest at Publisher’s Weekly

PG says that you can’t conclusively discern from questions a judge or group of judges ask the attorneys during a summary judgement or other hearing similar to that described in the OP that the court will rule one way or another.

Judges differ in the manner in which they deal with counsel during arguments concerning a motion or during the trial of a case. They can be playing devil’s advocate to probe each side’s reasoning and their charicization of various statlues or court cases they’re relying upon to support their contentions.

That said, based upon the OP’s description of what went on, PG doesn’t give the Internet Archive much of a chance of prevailing in this judge’s court.

Publishers, Internet Archive Set for Key Hearing Today

From Publisher’s Weekly:

After nearly three years of legal wrangling, a federal judge today will hear cross motions for summary judgment in a closely watched lawsuit challenging the legality of the Internet Archive’s program to scan and lend print library books.

First filed in New York on June 1, 2020, by four major publishers (Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House) and the Association of American Publishers, the copyright infringement lawsuit alleges that the Internet Archive’s scanning and lending of library books under an untested legal theory known as “controlled digital lending” is piracy on an industrial scale. The Internet Archive counters that it’s activities are legal, protected by fair use, and that the publishers’ action fundamentally threatens the core mission of libraries to own and lend collections in the digital age.

The wheels of the lawsuit first began to turn in late March 2020, in the early days of Covid-19 pandemic, when, with libraries and schools shuttered, the Internet Archive unilaterally launched the National Emergency Library, a program that temporarily removed controls on the scanned titles in the IA’s Open Library, making them available for multiple user borrowing. The move sparked outrage from author and publisher groups.

The suit, however, is about about more than the National Emergency Library (which shuttered in early June 2020, in the wake of the litigation). Rather, the suit challenges the legitimacy of controlled digital lending and the fundamental legality of scanning and lending library books without permission.

Under CDL, libraries (including the Internet Archive) make scans of their legally acquired physical books and loan the scans in lieu of the print under rules that mimic physical lending: only one person can borrow a scan at a time; the scans are DRM-protected; and only one format can circulate at a time to maintain a one-to-one “owned-to-loan” ratio. In other words, if the scan is checked out, its print counterpart cannot circulate, and vice versa.

. . . .

[L]awyers tell PW the case very likely will be decided at the summary judgment stage, as there are few factual disputes at issue in the case. Barring a surprise settlement, however, the case is likely far from over, as the outcome of today’s hearing, whichever way it goes, would likely be appealed.

Link to the rest at Publisher’s Weekly

Copyright: The ‘Protect the Creative Economy Coalition’

From Publishing Perspectives:

In the United States, a coming-together of the Washington-based Association of American Publishers and various copyright-engaged businesses including the Authors Guild—the US market’s leading author-advocacy organization—has created the “Protect the Creative Economy Coalition” as a response to “efforts designed to weaken intellectual property protections and damage digital markets.”

Representing not only major creative industries but also small and independent business owners’ interests, media messaging about the program specifies that its “immediate priority is combating a series of unconstitutional state bills that would artificially depress the value of literary works and the contracts that govern intellectual property licenses.”

Of course, these often inchoate localized efforts “directly conflict with the federal copyright act,” as the AAP indicates, “including the responsibilities of federal lawmakers to determine the nation’s intellectual property laws.”  

And an in an age of performative office-holders, many of whom have no experience or interest in genuine governance, it’s easy to overlook the potential gravity of such wild-eyed forays. However, “The problem is not theoretical,” says AAP president and CEO Maria A. Pallante in her comment on the establishment of the Protect the Creative Economy Coalition.

“The state bills would subject authors and publishing houses of all sizes to serious liabilities and financial penalties for exercising the very rights that the United States Copyright Act so clearly affords them—the definition of a constitutional conflict.  

“Moreover, they would forge a concerning precedent for downstream appropriation of intellectual property investments by actors well beyond the states, especially as to already precarious digital copies.

“We stand by our time-tested copyright system, and we are deeply dubious of assertions that devaluing the nation’s creative output is in the public interest.”

. . . .

Our international readership at Publishing Perspectives might recall one specific struggle of this kind for publishers when the state of Maryland tried to put into place a law requiring publishers to offer its state libraries “reasonable terms” established by the state itself, a direct contradiction to the federal priority of the United States Copyright Act. By June of last year, the state’s federal district court had issued the equivalent of a legal smackdown of Maryland’s scheme, followed swiftly by the governor of New York’s veto of a very similar bill being tested in that state’s capital.

In its media messaging provided to Publishing Perspectives on Wednesday (March 15), the coalition refers to the dogged, almost incoherent energy with which such right-wing efforts are repeated in various jurisdictions–an energy not unlike that which underlies the jagged anger of book bans and the more than 60 completely unsuccessful efforts made in courts nationwide to overturn the results of the 2020 presidential elections.

“Inexplicably,” the AAP writes for the coalition, “proponents continue to push their bills after a similar effort in Maryland was declared unconstitutional by a federal court in 2022. Bills in both New York and Virginia were also rejected, although not without ongoing, illogical, and reckless claims by the proponents. In an especially ludicrous example in Connecticut, a proponent equated the nation’s literary works with ‘floor wax and road salt.’”

. . . .

Mary Rasenberger, CEO of the Authors Guild: “These bills are unconstitutional and for good reason. They target the federal copyright system that authors depend on to earning a living.

“And they’re doing this at a time when the writing profession is already facing existential threats. Writers’ incomes have become precariously low, forcing talented writers to leave the profession; as a culture, we lose their books and their important insights. By forcing pricing limits and other restrictions on not just publishers but thousands of self-published authors, the bills exhibit total disregard of the reality that authors in the commercial marketplace have to earn enough money to stay in the profession.

“The Authors Guild is fully committed to libraries having access to all books and in all formats to meet their communities’ needs. We regularly lobby for increases in library funding. It is unfair to put the cost of libraries’ needs on authors.”

Andrea Fleck-Nesbit, CEO of the Independent Book Publishers Association: “For independent publishers and self-published authors, these [state] bills are especially harmful.

“The legislation would undermine the intellectual property of authors and publishers by manipulating fair market compensation for their creative work. It also places an outsized and unsustainable financial burden on small business owners.

“The bills would lead to a patchwork of differing rules across the country creating mass confusion, disrupting access, and undermining future investments. This is the reason why copyright is under the purview of federal law in the first place.” 

Keith Kupferschmid, CEO of the Copyright Alliance: “Several states are considering misguided ebook bills that would require publishers to license their works to libraries on terms determined by the states.

“Such legislation would strip authors and publishers of their exclusive right under the copyright act to decide whether, when, and to whom to distribute their copyrighted works.

“It has already been well established in several states that not only are the ebook bills unconstitutional, they also are contradictory to the economic philosophy and purpose behind copyright, which encourages the advancement of authors, artists, photographers, and all creators by providing them with an incentive to create new works for the public to enjoy and to control how they are distributed and monetized.”

Link to the rest at Publishing Perspectives

PG has no doubt that traditional publishers overcharge public libraries for ebook lending rights, but this not something state legislatures can do anything about. While a number of states have their own copyright laws, those laws only protect against copying in that state and are generally ignored by most IP lawyers.

Additionally, the book business (and especially the ebook business) falls into the sphere of interstate commerce which is exclusively reserved for federal legislation. When you drive your automobile from California to New York, you don’t need to buy a new license plate for every state you pass through.

Meaningful copyright laws are exclusively on the federal level and, from that platform, are reciprocated in a number of other nations via a number of international copyright treaties. A Google search for “The Berne Convention” will give you all the information you are likely to care about concerning international copyright treaties.

Licensor Beware: Copyright Protections in Peril

From IP Watchdog:

Companies rely on copyright protections to shield their software, data sets, and other works that are licensed to their customers; however, a reframing of what constitutes a “transformative use,” and the extent a license can restrict such fair uses, may whittle away all avenues of protections. On October 22, 2022, the Supreme Court of the United States heard arguments for Andy Warhol Foundation v. Goldsmith. The question before the Court is where does a copyright holder’s right to create derivative works stop and “fair use” of the work begin? Companies that license data sets or data feeds should pay close attention, as the Court’s decision could narrow contractual remedies.

Warhol v. Goldsmith

In 1984, Vanity Fair commissioned Andy Warhol to create art depicting Prince for the cover of the magazine and obtained a license from Goldsmith for the express right to use Goldsmith’s photo of Prince as “an artist reference for an illustration to be published in Vanity Fair November 1984 issue.” Warhol proceeded to create 12 silkscreen paintings, two screen prints on paper, and two drawings based on Goldsmith’s photo of Prince.

The Andy Warhol Foundation (AWF) retains ownership of the copyright to the works based on the Goldsmith photo, which it licensed after Prince’s death in 2016 to Vanity Fair and Conde Nast. Goldsmith sued AWF for copyright infringement claiming that the license did not authorize Warhol to create more than one work and that Goldsmith did not receive any additional compensation. AWF argued that Warhol’s other uses of Goldsmith’s photo were transformative and protected by fair use.

Section 107 of the Copyright Act lists the following factors to determine what is fair use:

  1. The purpose and character of the use.
  2. The nature of the copyrighted work.
  3. The amount of the original work used.
  4. The effect on the market for the original work.

When considering the first factor, courts consistently hold that transformative uses of a copyrighted work are fair use. See e.g., Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). To determine if a work is “transformative,” the court must conclude whether the new work “merely supersedes the objects of the original creation,” or whether the new work transfers and alters the original with new expression, meaning, or message. If a new work is sufficiently transformative, and thus fair use of a copyrightable work, then the new work can be licensed, sold, or used without a license from the original creator.

Fair use originated as an “equitable rule of reason” allowing courts to avoid rigid application of the copyright law stifling creativity. In Google v. Oracle, the Supreme Court ruled that Google’s use of 11,500 lines of code from Java SE (Java is owned by Oracle) when developing Google’s Android operating system was sufficiently transformative (although the court did not determine whether Application Program Interfaces (APIs) were copyrightable). Justice Stephen Breyer’s majority opinion distinguishes between implementing code and declaring code, with implementing code requiring more skill and creativity than declaring code. The Court held that Google’s direct copying of only “what was needed to allow users to put their accrued talents to work in a new and transformative program,” was a transformative use.

Implications for Licensors

The Warhol case highlights the uncertainty of contract remedies given Warhol’s patent violation and expansion of the license from Goldsmith because the contract restricted Warhol’s use of Goldsmith’s photo for a one-time purpose. A logical extension of the Warhol and Google decisions calls into question what protection copyright truly offers if a licensee can rearrange the protected work and claim that the new work is transformative.

License agreements typically have a limitation of liability clause. Theses clauses include exceptions to the cap on liability if licensee breaches the terms of the agreement or if the licensee’s use of the data infringes on the licensor’s intellectual property rights, including copyrights. Licensors’ business models rely on these exceptions to the limitation of liability to shift risk to the licensee; however, if the use is transformative, then the licensee did not violate the licensors’ intellectual property rights. The licensor could bring a breach of contract claim against the licensee alleging that even if the new work is transformative and doesn’t violate the licensor’s copyright, the licensee’s new work violates the terms of the agreement which only permitted use for an internal business purpose.

However, a split between federal appeals courts concerning whether the Copyright Act broadly preempts state law claims, including breach of contract claims, further complicates contract protections. While all federal appeals circuits apply the same preemption test – examining whether a breach of contract claim includes an “extra element” that makes it “qualitatively different” from a copyright infringement claim – the circuits disagree as to whether the existence of a contractual promise itself is an “extra element” sufficient to avoid copyright preemption. ML Genius Media Group v. Google LLC, No. 20-3113, (2d Cir. Mar. 10, 2022), compare with Utopia Providers Sys., Inc. v. Pro-Med Clinical Sys., LLC, 596 F.3d 1313, 1327 (11th Cir. 2010).

Thus, if the Supreme Court rules in Warhol’s favor, a licensor would have no remedy against a licensee for a copyright infringement claim if the use is deemed transformative and such licensor would likely have no remedy for a breach of contract claim because such claim is not qualitatively different and therefore is preempted by the Copyright Act.

Link to the rest at IP Watchdog

PG usually removes links in the items he posts. He’s not doing so with this post for visitors who may want to dive deeper into the matter.

It’s rare for the US Supreme Court to accept a dispute involving Intellectual Property law – copyrights, patents, etc., so, in the narrow sphere of IP lawyers, this decision is anxiously anticipated. Regardless of how the decision goes, it’s going to upset the apple carts of more than a few somebodies.

15 Things You Need to Know About the Copyright Office’s New Small Claims Court

From Copyright Alliance:

With the U.S. Copyright Office’s new small claims court—the Copyright Claims Board (CCB)—launching on June 16, we thought we’d pass along some of the most important information that copyright owners and users should know about this new tribunal.

1. The CCB can hear three types of claims.

The CCB can hear three types of claims by copyright owners and users:

  • infringement claims;
  • claims for declarations of non-infringement. This type of claim might be brought when a copyright owner has alleged that someone is infringing their work and either has threatened to take action to enforce their rights (such as in a cease-and-desist letter) or has sent a DMCA takedown notice. The alleged infringer can bring a claim before the CCB to request that the CCB issue a declaration stating that the activity they are engaged in does not infringe the copyright owner’s exclusive rights;
  • claims under section 512(f) of the Copyright Act for misrepresentations in a DMCA notice or counternotice. Users who received a DMCA takedown notice from a copyright owner can challenge that notice if they believe the copyright owner knowingly misrepresented that the material or activity is infringing in the notice. Similarly, a copyright owner who sent a DMCA takedown notice and then received a counternotice from the user may challenge that counternotice if they believe the user knowingly misrepresented that material or activity was removed or disabled by mistake or misidentification.

These are the only types of claims that can be brought. Ownership disputes, termination claims, trademark claims, etc., cannot be heard by the CCB. Also, the CCB cannot hear any claim or counterclaim that has been finally decided by or is pending before a federal court—unless that court has granted a stay to permit that claim or counterclaim to proceed before the CCB.

2. The CCB cannot hear claims against certain parties (under certain circumstances).

The CCB cannot hear any claim or counterclaim by or against a federal or state governmental entity. The CCB also cannot hear any claim against someone who does not reside in the United States. However, the CCB can hear a counterclaim against a foreign resident when that foreign resident has first brought a CCB claim themselves. Lastly, the CCB cannot hear any claims against an online service provider (OSP) that is referring, linking, or storing alleged infringing material on behalf of a user (as those terms are defined in the DMCA, found in 17 USC 512(b)(c) and (d)) unless the OSP has been notified of the infringement through a properly submitted takedown notice under the DMCA but fails to expeditiously remove or disable access to the material identified in the notice.

3. Participation in the CCB is voluntary.

The U.S. Constitution requires that participation in the CCB be voluntary. Thus, the person being sued (referred to as the “respondent”) can “opt out” of the proceeding. A respondent has 60 days from the date notice is served on them to opt out of a proceeding. In special circumstances, the CCB may extend the 60-day period. The opt-out form can be found here. If the respondent opts out of the CCB proceeding, the proceeding is immediately terminated. (Although the person who brings the CCB claim (referred to as the “claimant”) is still free to bring their claim as a lawsuit in federal court.) The CCB process is also voluntary for claimants. A claimant is not required to use the CCB to decide their infringement, non-infringement, or section 512(f) misrepresentation case. Parties can use other alternatives, such as bringing their claim in federal court or before a mediator.

4. A party can bring or defend a case without the need to hire an attorney.

The CCB process is intended to be much simpler and more streamlined than federal court that it will be unnecessary for the parties to hire attorneys to represent them. A party can hire an attorney if they wish, but the use of an attorney is completely optional. Interestingly, at the time this blog was drafted, attorneys were being used by claimants in a little less than half of the infringement cases. If a party feels the need for legal representation, they may also retain law school clinic students that are supervised by a licensed attorney so long as the student-representative has the client’s written consent to represent the party and has completed: (i) their first year at an American Bar Association accredited law school; (ii) training in copyright law as determined by their supervising attorney; and (iii) a review of the CCB regulations and the Copyright Alternative in Small-Claims Enforcement (CASE) Act statutory text. The CCB will provide a directory on its website of law school clinics and pro bono legal services organizations that have expressed interest in providing pro bono law student representation before the CCB.

5. The damages that the CCB can award a prevailing party are capped.

In a copyright infringement case filed in federal court, a successful plaintiff may be awarded up to $150,000 in statutory damages per work infringed. In contrast, when an infringement claim, or counterclaim, is brought before the CCB a successful claimant or counterclaimant may be awarded up to $15,000 in statutory damages per work infringed—which is 10% of the maximum damages available in federal court. Also, the total amount of damages that can be awarded in each case before the CCB is limited to $30,000, as compared to federal court, which has no limit.

6. Statutory damages are available for copyrighted works that are not timely registered.

In infringement cases before a federal court, statutory damages can only be awarded where the copyright owner has timely registered their works. Under U.S. copyright law, a copyrighted work is “timely” registered if it is registered with the U.S. Copyright Office either before the infringement starts or within three months after first publication of the work, if the infringement began after the work was first published. But in infringement cases before the CCB, statutory damages are available regardless of whether the work was timely registered. Whether the work is timely registered will impact the upper cap on damages, as the cap is significant lower for works that are not timely registered. For works not timely registered, statutory damages are limited to $7,500 per copyrighted work infringed and a total of $15,000 for all works infringed in a case that were not timely registered. This means that in a case involving only infringement claims in which all the works at issue were not timely registered, the CCB can award a no more than $15,000 for the entire case, as compared to $30,000 where all the works were timely registered.

Link to the rest at Copyright Alliance

U.S. Copyright Office tells Judge that AI Artwork isn’t Protectable

From PetaPixel:

The Copyright Office is attempting to get a lawsuit brought against them by Stephen Thaler dismissed. Thaler wants his Creative Machine system, known as DAUBUS, to be named as the copyright holder for the artwork A Recent Entrance to Paradise.

Thaler’s application to the Copyright Office was rejected, so he has brought his case to a federal judge demanding that the Office overturns its decision.

The Copyright Office says that it “turns on a single question: Did the Office act reasonably and consistently with the law when it refused to extend copyright protection to a visual work the plaintiff represented was created without any human involvement? The answer is yes.”

The Copyright Office says it applied the correct legal criteria to Thaler’s case and rejects his arguments.

“The Office confirmed that copyright protection does not extend to non-human authors,” says the defendants.

This decision was made “based on the language of the Copyright Act, Supreme Court precedent, and federal court decisions refusing to extend copyright protection to non-human authorship.”

The Copyright Office says that its own guidelines specify human authorship as a requirement for protection and that “the Office will refuse to register a claim if it determines that a human being did not create the work.”

The Office “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

. . . .

The Copyright Office also accuses Thaler of making changes to his original claim that he had no involvement with the creation of the artwork.

The Office says Thaler changed his story to claim that he “‘provided instructions and directed his AI to create the work,’ that ‘the AI is entirely controlled by Dr. Thaler,’ or that ‘the AI only operates at Dr. Thaler’s direction.’”

Link to the rest at PetaPixel

Sounds about right to PG.

Trademark Registration: 100% THAT BITCH

From PatentlyO:

In a new precedential opinion, the TTAB (The Trademark Trial and Appeal Board) has sided with the musical artist Lizzo — agreeing to register her mark “100% THAT BITCH” for use on apparel.  The Trademark Examining Attorney had refused registration on “failure-to-function” — concluding that the phrase was a commonplace expression used to express a well-recognized sentiment.

. . . .

The phrase comes from Lizzo’s 2017 song Truth Hurts (remade in 2019) that has become a viral sleeper hit.  The original line in the song is “I just took a DNA test, turns out I’m 100% that bitch.” But Lizzo herself did not create the phrase. Rather, Lizzo apparently saw a social media meme about being 100% that bitch and then added it to her song.  The examining attorney concluded that “evidence that consumers may associate the phrase with the famous singer/song because it was a lyric in the singer’s song does not entitle the applicant as a singer-songwriter to appropriate for itself exclusive use of the phrase.”

On appeal, the TTAB reversed the refusal.  Unlike patents and copyrights, trademark law is not designed to reward the creative endeavor of invention or authorship.  Rather, trademark is designed as a consume-protection and market-function tool and so focuses on consumer perception.  Here, the evidence suggests that the mark is being used in an ornamental fashion (rather than as simply words) and that ordinary consumers associate the mark with Lizzo.  Even though she didn’t create the words – she is the one who made them popular and transformed the “lesser known phrase to more memorable status.”  On those grounds, the TTAB concluded that the mark is registrable and thus reversed the denial.

A few years ago the mark would have also been rejected as scandalous, but that issue has been off the table since the Supreme Court’s FUCT decision.

Link to the rest at PatentlyO and thanks to C. for the tip.

PG usually avoids terms that might offend visitors to TPV, but there was no alternative in this case considering the copyrighted term.

As the OP makes clear, there is a distinction between copyright and trademark laws although they are sometimes regarded as similar by those prudent enough at a young age to avoid law school.

AI Generated Art for a Comic Book. Human Artists Are Having a Fit.

From The Wall Street Journal:

Kris Kashtanova says doing the art for the graphic novel “Zarya of the Dawn” was like conjuring it up with a spell.

“New York Skyline forest punk,” the author typed into an artificial intelligence program that turns written prompts into pictures. Then came the tinkering with the wording to get the right effect. “Crepuscular rays. Epic scene.”

The 18-page book follows the travels of a young character who awakes alone and confused in an abandoned, futuristic world, and who looks a lot like Zendaya, the actress from “Euphoria” and the recent “Spider-Man” movies. The images were composed on Midjourney, one of a batch of services that create new images based on artwork and photos already online. Last year, “Zarya of the Dawn,” which credited the software as a co-author on the title page, became the first work of its kind to get a copyright from the Library of Congress.

But now the copyright is under review, posing a big question: Who really owns these AI-generated, mashup images?

Text-based AI programs such as OpenAI’s ChatGPT are already causing a ruckus in the education world, with teachers worrying that students might pass off AI-generated essays as their own. Christian Terwiesch, a professor at the Wharton business school, recently published a paper concluding that the software would have received a B to B- on one of his M.B.A. courses—better than some of his real-life students.

Now creative types are on edge over how AI might upend their livelihoods. Several artists have begun legal action against Midjourney and other AI services, saying their images were included in reference databases without their permission. Some think it’s too easy a shortcut. Movie director Guillermo del Toro recently described AI-generated animation as “an insult to life.”

For “Zarya of the Dawn,” Mx. Kashtanova, who uses a gender-neutral honorific and pronoun, says they were upfront about using the technology. Mx. Kashtanova touched up the images generated by Midjourney and provided the comic’s text, and isn’t too concerned about what happens as the case at the Library of Congress’s Copyright Office continues.

“Like, no one is going to die,” they say, adding that they applied for the copyright with plans to donate money from licensing fees to a New York nonprofit, Backpacks for the Street, where they volunteer. Midjourney, which didn’t respond to a request for comment, is paying for the legal fees to help make the case to retain copyright. The Copyright Office says it doesn’t comment on pending cases.

The case is turning into a barometer for how AI art is treated in the eyes of the law.

“Think about photography,” says Van Lindberg, an intellectual property lawyer at Taylor English Duma LLP in San Antonio, who is representing Mx. Kashtanova, along with legal group Open Advisory Services. In the past, when photographers still used film, they spent much of their energy carefully composing the right shot. In the digital age, it’s more common to take lots of pictures and select the best—which is similar to what artists are doing with AI programs, he says.

“We’re starting to use our intelligence for curation as opposed to some other aspects of creative work,” he says. “Is that enough to sustain copyright? I believe it will ultimately be found that it is, but it’s an open question.”

The question is becoming more urgent as the technology improves.

Jason M. Allen stirred up a hornet’s nest of controversy online last year when he beat a host of artists to win first prize for digital art at the Colorado State Fair. He experimented with hundreds of different prompts on Midjourney to come up with his work, “Théâtre D’Opéra Spatial.” The judges hadn’t realized what the software was.

Software engineer Stephen Thaler this month took the Copyright Office to court in Washington, D.C., after it rebuffed his application for “A Recent Entrance to Paradise,” which he generated with his own program to represent a near-death experience. He argues that as the program’s creator, the image rights belong to him. The Copyright Office ruled that it wouldn’t knowingly register a work solely created by AI.

“Whether it’s music or movies or art or text, you can now go to dozens of openly available AI systems online like DALL-E or ChatGPT and they will make art that passes all traditional tests for whether something’s protectable,” says Ryan Abbott, an attorney at Brown Neri Smith & Khan LLP, who is representing Dr. Thaler.

In the U.S., someone seeking copyright needs to show only that it contains “a modicum of creativity,” as the Supreme Court has said. Mx. Kashtanova thinks “Zarya of the Dawn” easily passes the threshold.

One of the opening scenes shows the lead character holding a mysterious postcard from someone called Rusty, a moody scene that helps set up the rest of the story as Zarya sets out to find a way home.

Mx. Kashtanova describes going through hundreds of prompts to capture the right atmosphere, trying phrases such as “cellular wisdom” and “alien forest” until Midjourney delivered the goods.

They repeated the process as the story progressed, often typing in “Zendaya” to keep Zarya’s appearance consistent.

AI developers often say the idea is to give human imagination a helping hand. 

Link to the rest at The Wall Street Journal

PG will repeat that AI is simply a sophisticated tool that allows individuals to create images more easily and quickly than they would likely be able to do without AI.

Is there a serious professional artist that thinks using Photoshop and related tools like Procreate, Astropad Studio and any other software tools shouldn’t be permitted for creative artists to use because they’re not mixing their own paints and using a camelhair brush to create their work on a canvas?

PG remembers a pair of statements from a long time ago regarding paleontology and various early hominins.

Man, the tool-maker

Tools, the man-maker

PG notes that these statements predate any sort of political correct speech and he acknowledges that man and woman could be used interchangeably and the statements would still be true.

PG suggests that AI tools are yet another man-maker that will accelerate the imaginations and creatively artistic talents of humanity as a whole.

Me, Myself, and (A)I: Copyright Office to Focus on AI Authorship

From Lexology:

According to a recent interview in December 2022, the U.S. Copyright Office (the “Office”) signaled that it would focus in 2023 on “legal grey areas” surrounding copyrightability of works generated in conjunction with artificial intelligence (“AI”) tools. While the agency is standing by its conclusion that copyright cannot be registered for a work created exclusively by an AI, according to Shira Perlmutter, the Register of Copyrights and director of the Office, the Office is considering the issue of copyright registration for works co-created by humans and AI. The focus is timely given recent monumental leaps in natural language processing and image, text, and code generative AI.

The ‘Human Authorship Requirement’

In 2018, a computer scientist named Stephen Thaler submitted an application to the Office to register a copyright in artwork entitled A Recent Entrance to Paradise (the “Work”). The application identified the “Creativity Machine” as the sole author of the Work, with Thaler listed as a co-claimant. In the application, Thaler noted for the Office that: (1) the Work was automatically created by a computer algorithm running on a machine; and (2) he was seeking to register the computer-generated work as a work-for-hire to Thaler as the owner of the Creativity Machine.

The Work was generated in 2012 by “Device for the Autonomous Bootstrapping of Unified Science,” or DABUS, an AI system developed by Thaler. In an August 2019 letter, the Office refused to register the copyright, finding that DABUS lacked the “human authorship necessary to support a copyright claim.” Thaler submitted requests for reconsideration in September 2019, May 2020, and February 2022, suggesting that “the Office’s human authorship requirement is unconstitutional and unsupported by case law,” which the Office rejected for lack of “traditional human authorship.” In the 2020 determination, the Office again concluded that the Work “lacked the required human authorship necessary to sustain a claim in copyright” because Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work.” The Office also noted that it would not “abandon its longstanding interpretation of the Copyright Act, Supreme Court, and lower court judicial precedent that a work meets the legal and formal requirements of copyright protection only if it is created by a human author.”

In stating its conclusion in its 2022 denial of reconsideration and affirming the initial refusal to register the copyright claim in the Work, the Office affirmed the prevailing legal rule for a century that copyright law protects “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind.” U.S. Copyright Office, Compendium (Third) of U.S. Copyright Office Practices § 306 (quoting Trade-Mark Cases (1879)). Additionally, the Office noted (as a corollary) that it does not register works produced by a machine or mere mechanical process that operates without any creative input or intervention from a human author. Accordingly, Thaler had to either: (1) provide evidence that the Work was a product of human authorship; or (2) provide an argument convincing the Office to depart from the prevailing legal rule, and the Office noted that Thaler accomplished neither. Given the concerns that IP policy is lagging behind technology, the Office “is exploring open questions on copyright registration for works created by humans in conjunction with AI.”

Beyond the Thaler Determination: The Next Frontier of Co-Creation

In 2022, OpenAI released the AI text generator ChatGPT and the AI image generator DALL-E 2. ChatGPT is a natural language processing tool that allows users to have human-like conversations, receive assistance with tasks such as composing code, essays, and emails, and automate otherwise mundane operations. DALL-E 2 is a language model that creates images from user-submitted text captions for a wide range of concepts expressible in natural language. These tools and other generative AI tools made available by OpenAI’s competitors have raised questions about the protectability of works created by humans in conjunction with AI.

In the December 2022 interview, Director Perlmutter, noting that the Office applied existing case law holding that human authorship is a prerequisite for copyright protection in the Thaler determinations, states that the more challenging issues will involve a component of human creativity. Once the human element is involved, the question becomes whether it rises to the level of authorship under existing case law. A complication is that the Office must rely solely on the facts presented in an application for copyright registration as it currently has no way to verify whether an AI system has been appropriately credited in a copyright application.

Recently, the Office began proceedings to cancel a copyright registration it initially issued to Kristina Kashtanova for her AI-assisted graphic novel “Zarya of the Dawn.” The novel includes AI-generated images which Kashtanova created using Midjourney, an AI software platform that generates image outputs based on text inputs. The Office commenced its move to cancel the registration after public disclosures that the novel was in part composed of AI-generated images that were not disclosed in the copyright application. The Office can move to cancel a registration if the authorship is insufficiently creative or the work does not contain authorship subject to copyright on the grounds that the registration is invalid under the applicable law and regulations, 37 C.F.R. § 201.7.

In addition to the question of copyrightability, other emerging AI-related questions that the Office and the Courts are likely to increasingly face include: (1) what level of creative input must exist for an AI-generated work to constitute human “authorship” to support a copyright claim; and (2) should AI-created works that are derived from analyzing existing works (such as those used for training data) or styles require a license from the original author to avoid a claim of copyright infringement, and to what extent do principles of fair use apply?

Link to the rest at Lexology

PG notes that the authors of the OP are associated with the Intellectual Property Group at Davis Wright Tremaine LLP, a large law firm with offices in Seattle and a great many other locations.

The Patent Law Origins of Science Fiction

From Patently-O:

Are inventions described in works of science fiction patentable? The answer is usually no, and for good reason. Some of the most beloved fixtures of the genre—time machines, faster-than-light space travel, teleportation, downloading memories, copying a consciousness, etcetera—are impossible or not yet possible when described by the author. This sort of science fiction is not patentable because it cannot logically be enabled or have credible utility when the patent is filed.

For similar reasons, science fiction is rarely cited as prior art against later patent filings. Science fiction can qualify as prior art under § 102(a) as a “printed publication” or as “otherwise available to the public.” It can be especially useful as “obviousness” prior art because, to quote the Federal Circuit, a “reference that does not provide an enabling disclosure for a particular claim limitation may nonetheless furnish the motivation to combine, and be combined with, another reference in which that limitation is enabled.” Raytheon Techs. Corp. v. General Electric Company, 993 F.3d 1374 (2021). However, science fiction is unlikely to be cited during examination. Examiners lack the time and energy to search for on-point science fiction where there is so much more (and better catalogued) prior art among patents and scientific publications. Applicants, for their part, are not required to disclose prior art that is not material to patentability or that is cumulative of other prior art they’ve already provided. 

It may surprise you, then, to learn that the genre of science fiction is deeply indebted to patent law and patent theory. In our new paper, The Patent Law Origins of Science Fiction, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4291271, we show that science fiction as a literary form was originally premised on the idea that works of science fiction are like patents. They disclose useful technical information that can give readers a “stimulus” to perfect the invention and figure out how to make it work.

The person responsible for this comparison was the so-called “father” of science fiction, Hugo Gernsback. He started the first exclusively-science fiction magazine, called Amazing Stories, in 1926. The Hugo awards, given to the best works of science fiction and fantasy writing, are named after him.

Gernsback was also an inventor and serious scientific thinker in his own right. He died with over thirty patents to his name. In the early 1900s, he started a radio and electronics equipment company in New York. To support his business, he initially published catalogs for mail-order electrical components, but the catalogs soon morphed into full-sized magazines with titles like “Modern Electrics, marketed to inventors and amateur “tinkerers.”

. . . .

At first, Gernsback started publishing science fiction stories—which he then called “scientifiction”—to fill space in his electrical magazines. These stories were sometimes little more than a few paragraphs of exposition about some speculative new device that might be used in the future, plugged into a generic adventure plot. For example, one story featured a genius from the future using (what we now call) “radar” to track down a Martian who had kidnapped the protagonist’s love interest in a Space Flyer. Despite the fictional elements, science and scientific plausibility were still all-important. Gernsback was fond of saying the recipe for good scientifiction was 25% science and 75% literature.

Readers loved it, and Amazing Stories was born. Gernsback knew he was on to something, and he frequently published editorials expounding on the virtues of scientifiction. These editorials, along with his unpublished manuscripts, reveal Gernsback’s theory that a good science fiction story is like a patent, but a much more “palatable” read. Although he did not articulate it in precisely the same terms, Gernsback’s justification for scientifiction echoes the language of patent law’s disclosure theory. Scientifiction, he wrote, provides both knowledge and “stimulus.”[2] It inspires “seriously-minded” readers to learn about science and technology, and it supplies the “inventor or inventor-to-be who reads the story” with “an incentive” to “realiz[e] the author’s ambition” by perfecting the author’s science fictional inventions in the real world. Gernsback often drew the analogy to patents quite explicitly. The science fiction author, in his framework, was “an original inventor,” like the named inventor on a patent. The readers who got the author’s invention to work were like “manufacturers” who buy patents and commercialize the inventions therein “with but a few changes.” They were just there to profit from the author’s grand ambitions.

Over time, Gernsback developed a crazy idea. If science fiction authors are “inventors” who inspire others to reduce their inventions to practice, then shouldn’t science fiction authors be able to get patents for their prescient descriptions of future inventions? And shouldn’t science fiction serve as prior art against other peoples’ patents? In 1952, just after Congress had modernized the Patent Act, Gernsback made these ideas public. In a speech he gave to the World Science Fiction Convention in Chicago, he proposed that Congress should reform patent law (again) to give science fiction authors the ability to apply for “Provisional Patents.”

. . . .

His Provisional Patents would have given science fiction authors thirty extra years in which to demonstrate their science fictional inventions worked. If they could do so, the Provisional Patent would be converted into a normal patent, presumably in force for the full patent term (which at that time meant 17 years). Otherwise, it would be abandoned. This proposal was not adopted and, we presume, was never seriously considered.

In the same speech, Gernsback also proposed that authors and publishers should start identifying works of science fiction that contained “new and feasible” inventions, so that they could send these selected works to the patent office. Gernsback’s hope was that the patent office would be deluged with science fiction and have no choice but to start reviewing and citing science fiction more often as prior art. This idea had more grounding in current law than Gernsback’s Provisional Patents, but it was not adopted either. Mechanisms for getting prior art to the patent office have certainly improved since Gernsback’s time. But we still don’t send the patent office curated collections of science fiction.

Gernsback’s ideas were iconoclastic, and his proposal to make Provisional Patents available for inventions that are not yet reduced to practice is deeply troubling from a policy perspective. Science fiction authors who make reasonably accurate predictions about future technological developments would gain the ability to sue the very people who figure out how to make those technologies. Imagine the effect on the computer industry if a science fiction author had been able to reserve the right to patent a supercomputer in the early 1920s, and then converted this into a full patent in the 1950s…

But taking Gernsback’s ideas seriously generates some surprising insights. Science fiction—of the type that Gernsback and “hard sf” writers like Jules Verne and Isaac Asimov wrote—has more in common with patents than it might seem. Publishing a work of science fiction confers no exclusive rights on the inventions it contains. But, like patents, works of science fiction are documents that disclose potentially useful information about science and technology. Like patents, science fiction stories can describe inventions that have not literally been reduced to practice; they can leave many details to skilled artisans to figure out. Both science fiction readers and patent examiners are also supposed to suspend disbelief, presuming the inventions described on the page are based on plausible scientific principles. See, e.g. In re Cortright, 165 F.3d 1353 (1999). If we think patents are an important part of the innovation ecosystem because they disseminate useful technological teachings and insights, then science fiction might be too.

How often science fiction influences innovation is an extremely interesting question. Ironically, the patent record itself is a great source of data with which to test Gernsback’s theories. In fact, one of Gernsback’s more questionable assumptions was that profit-hungry readers are “continuously” filing patents on inventions they learned about in science fiction. They remember the idea, “lard it with a few of [their] own, patent it and start a new billion dollar industry on it.” Regardless of whether that is true, if someone is inspired by science fiction to make an invention in the real world, then we should sometimes see evidence of this in the patent record.

. . . .

Formal prior art citations to science fiction are rare for the reasons we said above. But we can find circumstantial evidence of science fiction’s influence by searching patents. For example, specifications sometimes reference science fiction in the body, even if they don’t formally cite to science fiction as prior art. Search the patent record for “Asimov, “Three Laws of Robotics,” or “Star Trek,” and you’ll see what we mean. We can also find more direct evidence of influence—situations where inventors expressly state that they got their inspiration from science fiction. For this, though, we usually have to look outside the patent record. Inventors’ autobiographies, interviews, speeches, and marketing efforts can reveal clues. For example, Neil Stephenson’s 1992 book Snow Crash features a virtual world called the Metaverse. Facebook and other tech companies are making their own virtual worlds and calling them by the same name. That, along with direct statements from employees that Stephenson is “our inspiration,” helps support that there was some degree of influence. Steven Levy, Neal Stephenson Named the Metaverse. Now, He’s Building It, Wired (Sept. 16, 2022).

This is surely sometimes independent invention, the result of multiple inventors responding to the same technological developments and contemporary trends. Mark A. Lemley, The Myth of the Sole Inventor, 110 Mich. L. Rev. 709 (2012). But sometimes it is not. Despite all the legal and practical barriers, science fiction appears in the patent record. It was important enough to play some small part in the journey that culminated in the invention. At the end of the day, there is only one explanation for this: Some inventors read science fiction, and some science fiction matters to those people. Its ideas inspire them in ways that traditional sources (including patents) do not. Gernsback put it best. Science fiction “fires the reader’s imagination more perhaps than anything else of which we know,” leaving readers “deeply thrilled[,]” as their “imagination is fired to the nth degree[.]” Few people would ever say that about reading patents.

Even if science fiction does not directly influence someone to make the precise inventions it discloses, it can impact peoples’ career choices, inspiring them to go into science or pursue a general line of inquiry. It can inspire them to go to space. Kristen Houser, Science fiction doesn’t predict the future. It inspires it, BigThink (Oct. 23, 2021). Arthur C. Clarke went so far as to say that “by writing about space flight we have brought its realization nearer by decades.” In Clarke’s view, science fiction both imparted useful technical information and acclimated readers to the possibility of space flight, priming them to support and accept the novel technology when it arrived.

Link to the rest at Patently-O and thanks to C. for the tip.

Getty Images is suing the creators of AI art tool Stable Diffusion for scraping its content

From The Verge:

Getty Images is suing Stability AI, creators of popular AI art tool Stable Diffusion, over alleged copyright violation.

In a press statement shared with The Verge, the stock photo company said it believes that Stability AI “unlawfully copied and processed millions of images protected by copyright” to train its software and that Getty Images has “commenced legal proceedings in the High Court of Justice in London” against the firm.

Getty Images CEO Craig Peters told The Verge in an interview that the company has issued Stability AI with a “letter before action” — a formal notification of impending litigation in the UK. (The company did not say whether legal proceedings would take place in the US, too.)

“The driver of that [letter] is Stability AI’s use of intellectual property of others — absent permission or consideration — to build a commercial offering of their own financial benefit,” said Peters. “We don’t believe this specific deployment of Stability’s commercial offering is covered by fair dealing in the UK or fair use in the US. The company made no outreach to Getty Images to utilize our or our contributors’ material so we’re taking an action to protect our and our contributors’ intellectual property rights.”

When contacted by The Verge, a press representative for Stability AI, Angela Pontarolo, said the “Stability AI team has not received information about this lawsuit, so we cannot comment.”

The lawsuit marks an escalation in the developing legal battle between AI firms and content creators for credit, profit, and the future direction of the creative industries. AI art tools like Stable Diffusion rely on human-created images for training data, which companies scrape from the web, often without their creators’ knowledge or consent. AI firms claim this practice is covered by laws like the US fair use doctrine, but many rights holders disagree and say it constitutes copyright violation. Legal experts are divided on the issue but agree that such questions will have to be decided for certain in the courts. (This past weekend, a trio of artists launched the first major lawsuit against AI firms, including Stability AI itself.)

Getty Images CEO Peters compares the current legal landscape in the generative AI scene to the early days of digital music, where companies like Napster offered popular but illegal services before new deals were struck with license holders like music labels.

“We think similarly these generative models need to address the intellectual property rights of others, that’s the crux of it,” said Peters. “And we’re taking this action to get clarity.” 

Although the creators of some AI image tools (like OpenAI) refuse to disclose the data used to create their models, Stable Diffusion’s training dataset is open source. An independent analysis of the dataset found that Getty Images and other stock image sites constitute a large portion of its contents, and evidence of Getty Images’ presence can be seen in the AI software’s tendency to recreate the company’s watermark.

Although companies like Stability AI deny any legal or ethical hazard in creating their systems, they have still begun making concessions to content creators. Stability AI says artists will be able to opt-out of the next version of Stable Diffusion, for example. In a recent tweet about the company’s training datasets, Stability AI CEO Emad Mostaque said “I believe they are ethically, morally and legally sourced and used,” before adding: “Some folks disagree so we are doing opt out and alternate datasets/models that are fully cc.”

The full details of Getty Images’ lawsuit have not yet been made public, but Peters said that charges include copyright violation and violation of the site’s terms of service (in particular, web scraping). Andres Guadamuz, an academic specializing in AI and intellectual property law at the UK’s University of Sussex, told The Verge it seemed like the case would have “more merit” than other existing AI lawsuits, but that “the devil will be in the details.”

Link to the rest at The Verge

PG’s understanding is that AI art generators don’t keep any copies of the images they use. His understanding is that an image is quickly analyzed and a mathematical hash is created.

If PG’s understanding is correct, Stability AI used an Open Source dataset and, perhaps, kept a copy of the original photos/artwork on its servers afterwards.

If this is the case, PG thinks it was stupidity on the part of management at Stability AI to keep a copy after creating hashes from it. While he thinks it would still qualify as fair use under US patent law, keeping a literal copy of the photos after processing them strengthens Getty’s case.

Getty is suing in the UK because Stability AI is located there, so PG’s comments, based on his understanding of US copyright laws may not cover differences between UK and US laws governing this matter. He will note that both the UK and US have entered into the two major international copyright agreements – The Universal Copyright Convention (UCC), adopted in Geneva, Switzerland, in 1952, and The Berne Convention for the Protection of Literary and Artistic Works (Berne), in 1882.

Getty is also aggressive in suing for improper use of photos in their collection, even if the photos are in the public domain and, thus, not protected by copyright. See here for one relatively recent example. And here for another take on the same facts.

PG is going to be following this lawsuit as it progresses and would welcome hearing from visitors to TPV if they find any interesting pieces discussing the dispute – Contact PG at the top of TPV will let you send him an email.

“Controlled Digital Lending”: Could Canadian Universities Find Themselves Out on a Limb?

From Hugh Stephens Blog:

In my year end blog post looking back at significant developments for copyright and creators in 2022 and looking forward to topics that will be at the top of the agenda in 2023, I identified questions over the legality of a contrived and unproven concept, so-called “Controlled Digital Lending” (CDL), as one of the big issues likely to be clarified this year.

Back in June 2020, four major publishers (Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House), all members of the American Association of Publishers (AAP) filed suit against the Internet Archive for “Systematic Mass Scanning and Distribution of Literary Works”. The Internet Archive (IA), an organization that brands itself as “a non-profit library of millions of free books, movies, software, music, websites, and more”, provides a number of services including archiving the internet through its “Wayback Machine”, archiving television programs and audio recordings, and digitizing documents and books, both those in the public domain and others still protected by copyright.  Although registered as a US non-profit, it was founded and still led by Brewster Kahle, a multimillionaire entrepreneur and digital “guru”.

The publishers’ lawsuit was provoked by the IA’s decision to create a self-described “National Emergency Library” in March 2020, during the peak of the COVID pandemic. The Emergency Library expanded the untested theory of Controlled Digital Lending (CDL), championed by the Archive, by eliminating even the pretence of limits on the numbers of digital copies of books that could be borrowed, in effect eliminating all wait times. As I noted in an earlier blog post (“Are Authors the Enemies of Authors and Publishers?”), COVID was the pretext used by the Archive for pushing the envelope on CDL. Under the IA’s interpretation of CDL, a digital scan of a book can be substituted for the original work by a lending library as long as the library holds the requisite number of physical copies. As is the case with legitimate lending of licensed e-books, there is no need for the borrower to physically collect the work; it is all done digitally including terminating the loan once the book is due.

The issue of scanning a book without authorization in order to provide a substitutable digital version is clearly at odds with the law, especially when it comes to US case law which has been very clear and consistent on this point. As authors and publishers point out, it is a form of copying that destroys the licensing market for e-books. Despite this obvious fact, this has not stopped advocates, like the Internet Archive, from claiming that the practice is somehow fair use under US law. Until COVID hit, the Archive purported to follow what it characterized as normal lending rules by allowing only as many digital copies into circulation as it physically held in its inventory, with a digital copy having to be “returned” before a new copy could be loaned out. However, in reality it exercised no actual controls, simply asserting that it was following the correct “own to loan” ratio. Then, with the arrival of COVID, the Archive dropped all pretence of controls and announced that it was suspending the normal practice of maintaining a wait list and would allow unlimited digital copies to go into circulation.

While a few initially misguidedly lauded the Archive for taking measures to assist consumers who were self-isolating because of the pandemic, it didn’t take long for authors and publishers to push back, pointing out that this unilateral move was a case of giving away someone else’s property without consultation or permission. Although the possibility of litigation had been simmering for some time, the IA’s declaration of the “National Emergency Library” was the precipitating event leading to the filing of suit by the publishers. The IA then ended the Emergency Library program prematurely and Kahle appealed to the publishers to settle the dispute in the boardroom rather than the courtroom. The hypocrisy of this appeal was not lost on authors and publishers who had been trying for years to engage the Archive in meaningful discussions. Both sides moved for summary judgment, and those motions are currently pending in front of the judge.

Link to the rest at Hugh Stephens Blog and thanks to R. and others for the tip.

PG recalls this type of “controlled digital lending” theory having appeared in various guises on past occasions.

As the OP suggests, it won’t work.

Fundamental copyright law requires the author’s approval before anyone can make a copy of the author’s creation, be it words or paintings or anything else.

When a library purchases a physical book and lends it to someone, the library has entrusted its copy to one of its patrons. If the patron doesn’t return the book or loses it or if the patron’s dog eats the book, if the library wishes to allow other patrons to borrow the book, the library’s only legal option is to purchase another physical book from the author or publisher or locate a helpful friend of the library who has purchased a copy of the book and ask if the helpful friend will donate her/his/their physical copy of the book to the library.

Every digital lending scheme PG has examined involves making a copy of the book each time someone wishes to read it. If the library scans one of its physical books, it’s making a copy without permission. It doesn’t matter whether the library destroys the physical book after scanning it. The library has still made a copy.

If a library acquires an ebook, absent permission from the owner of the ebook’s copyright, the library can’t make a digital loan to a patron via an electronic copy while still maintaining a copy of the ebook on the library’s computer system or anywhere else.

Just because electronic copying is very simple to do and happens trillions of times per day on computers around the world doesn’t mean that making an electronic copy of a bunch of organized electrons that are protected by copyright law is not a violation of copyright law.

Please note that that the copyright law includes an exclusion for Fair Use of the copyrighted material. Fair Use does not constitute a violation of copyright law.

Here’s a reasonable general definition of Fair Use from The Stanford Libraries:

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.

Of course, as with all laws, Fair Use contains more than a few gray areas. However, making a complete copy of a creative work and lending, selling, etc., the copy to one or more others is not protected under the Fair Use exception to general copyright law.

(Personal note – PG believes all of his excerpts of copyright-protected material in TPV constitute fair use. He asks himself if that is the case for at least one or more items he posts each week. His judgement has been questioned on only one occasion, many years ago, but the questioner stopped complaining after PG sent his analysis of fair use for the challenged post.)

Something is afoot with copyright this Public Domain Day

PG Note: The OP was published on January 1, 2023

From The Guardian:

On New Year’s Day, copyright in the US expires on a new clutch of artistic works. But shady legal shenanigans mean it’s a little overdue…

Here’s a reason to be cheerful this morning: it’s Public Domain Day, ie the day on which a new batch of hitherto copyrighted works comes out of copyright and enters the US public domain – the zone that consists of all the creative work to which no exclusive intellectual property rights apply. For those readers who do not reside in the US, there is perhaps another reason for celebrating today, because copyright terms are longer in the US than they are in other parts of the world, including the EU and the UK. And therein lies a story about intellectual property laws and the power of political lobbying in a so-called liberal democracy.

Among the works liberated for the delight of American citizens this morning are: Virginia Woolf’s To the Lighthouse; the final Sherlock Holmes stories by Arthur Conan Doyle; Fritz Lang’s seminal science-fiction film Metropolis; Alfred Hitchcock’s first thriller; and compositions by Louis Armstrong and Fats Waller. The interesting thing is that these were originally supposed to enter the public domain in 2003, but as Jennifer Jenkins, director of Duke University’s Center for the Study of the Public Domain puts it, “before this could happen, Congress hit a 20-year pause button and extended their copyright term to 95 years”.

The mechanism by which this legal heist was implemented was the 1998 Copyright Term Extension Act (AKA “The Sonny Bono Act” or “The Mickey Mouse Protection Act” depending on your satirical tastes). In passing it, American legislators were simply continuing business as usual in the intellectual property business. The story began in 1790, when Congress enacted the first copyright law, which provided protection for authors for 14 years (plus a further 14 if the author requested it). The term was gradually lengthened in small increments by Congress until 1976, when it was extended by 19 years to 75 years and then in 1998 by the Sonny Bono Act. So, as the legal scholar Lawrence Lessig puts it, “in the 20 years after the Sonny Bono Act, while 1m patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term”.

You don’t have to be Sherlock Holmes to figure out how this happened. (Hint: an inspection of campaign contributions to US legislators in the relevant years may be illuminating. And of course there was also the fear that Mickey Mouse might make his escape into the public domain.) But the end result is that American citizens have had to wait two decades to be free to adapt and reuse works to which we Europeans have had easy access.

As it happens, Sherlock Holmes has a topical relevance, because today the US copyright on the last two Sherlock Holmes stories by Arthur Conan Doyle – from The Case-Book of Sherlock Holmes – expires. This must be depressing news for the Conan Doyle Estate Ltd, which has been almost as assiduous an enforcer of intellectual property rights as was James Joyce’s grandson, Stephen Joyce, in the years when Ulysses was in copyright.

As Jenkins tells the story, the estate’s claim was that the characters of Holmes and Dr Watson remained protected by copyright even if the books themselves had escaped to the public domain. This was eventually challenged by Leslie Klinger, a lawyer and Sherlock Holmes scholar of some renown. The case went through a series of American courts until 2014, when it finally ran into the immovable object known as Judge Richard Posner of the seventh circuit.

“The Doyle estate’s business strategy,” Posner ruled in a characteristically acerbic judgment, “is plain: charge a modest licence fee for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand … only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice – a form of extortion … It’s time the estate, in its own self-interest, changed its business model.”

Link to the rest at The Guardian

A treasure trove of Hollywood intellectual property is heading for the public domain

From The Economist:

A.A. Milne, who created Pooh in 1926, might not have approved of “Winnie-the-Pooh: Blood and Honey”, a low-budget slasher film due out in February. But no approval from his estate was needed. In January 2022 the copyright on “Winnie-the-Pooh” expired in America and the work entered the public domain. Since then the bear has also featured in a mobile-phone advertisement as “Winnie-the-Screwed”, complaining to Rabbit that his mobile bill is too high.

Every year a new haul of creative work leaves copyright and becomes free for anyone to adapt and exploit. In America, where copyright for older works is usually 95 years, recent entries to the public domain include Ernest Hemingway’s “The Sun Also Rises” and F. Scott Fitzgerald’s “The Great Gatsby”.

But a new era in copyright is now dawning. As the limit begins to expire for works created in the late 1920s, the public domain is starting to receive not only works of literature, art or music, but video, too. Hollywood’s intellectual property, some of it still wildly valuable, is increasingly up for grabs.

In January “The Jazz Singer”, one of the first successful “talkies”, will go out of copyright. Warner Bros, which released the film in 1927, is unlikely to worry much about losing the rights to what is today a historical curiosity. But a year later “Steamboat Willie”, the first film featuring Mickey Mouse, who sits at the centre of Disney’s merchandise business which brings in more than $5bn a year, will be there for the taking. In the 2030s Disney films including “Snow White”, “Bambi” and “Fantasia” will slip out of copyright. So will some of the comic-book heroes who are among the most successful performers at the modern box office. The latest Batman movie took more than $770m at the box office; Warner has two sequels planned. Yet from 2035, anyone will have the right to make one.

For Hollywood executives 95 years may feel all too fleeting, but copyright terms used to be much shorter. The first modern copyright law in the English-speaking world, published in 1710, gave rights-holders in England up to 28 years’ ownership of their work. America followed suit with its first federal copyright law in 1790. By 1909 the term was 56 years. This held until the 1970s. Then, just as Hollywood’s treasures were about to become public property, Congress stepped in to lengthen the term to 75 years. In 1998, as Domesday approached once more, Congress passed the “Mickey Mouse Protection Act”, as it was mockingly known, extending the copyright term to 95 years.

Many expected a further extension. None has materialised. The reason, in a number of ways, is the internet. First, it has turned voters into copyright liberals. In the 1990s the subject of copyright was of interest only to “educators, historians and librarians”, says Mitch Stoltz of the Electronic Frontier Foundation, a free-speech pressure group. With the advent of the internet, people saw how easily information could be copied, and how copyright rules curtailed their ability to share music or images, or to post on social media.

The internet also changed the balance of lobbying power. Publishers, record labels and film studios had always pushed for lengthy copyright terms; no commercial interest had reason to push hard against them. That is, until the arrival of companies such as Google and YouTube, which make their money by sharing other people’s content. Google won legal battles over its use of copyrighted pictures in its image search. Record labels sued YouTube for hosting clips featuring their music, before the labels decided to settle.

Link to the rest at The Economist

Protection of intellectual property in the United States originated in the British system of protecting intellectual property, beginning with the introduction of the printing press to England in the late fifteenth century. This invention allowed the owner of a printing press to create a great many copies of an original written work. British law was about protecting printers for quite a long period of time.

In 1710 Parliament enacted the Statute of Anne. The 1710 act established the principles of authors’ ownership of copyright and a fixed term of protection of copyrighted works (14 years, and renewable for 14 more if the author was alive upon expiration). The statute prevented a monopoly on the part of the booksellers and created a “public domain” for literature by limiting terms of copyright and by ensuring that once a work was purchased the copyright owner no longer had control over its use.

This relatively recent history undoubtedly had an impact on those who drafted the United States Constitution, adopted in 1787.

The United States Constitution gives Congress the right to pass copyright and patent legislation:

Article I  Legislative Branch

Clause 8 Intellectual Property

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The United States Congress first gave life to this provision of the Constitution with The Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies. This first copyright act was modeled on the Statute of Anne.

PG notes a couple of items in the Constitution.

1. The purpose of the clause is to promote the progress of science and useful arts.

This concept is easy to understand. The drafters of the Constitution saw value in encouraging the creation of intellectual property. New discoveries, devices and writing were not only a cultural benefit to the country and populace, they also provided an economic benefit by allowing creators to earn money from their creations – encouraging both new and more efficient industries and spreading knowledge among the general populace.

2. The method for promoting such creativity is to allow creators to commercially exploit their discoveries and creations on an exclusive basis for a limited period of time. They could do this by being the sole source for the invention or creation or by permitting as many others as the inventor thought wise to make commercial use of the creation. Generally speaking, the creator obtained compensation, usually financial, in exchange for his/her/their grant of rights to others.

Filing for patent or copyright creates a public document, either a description of the invention sufficient for others to understand the details of the invention and its unique character or, in the case of copyright, a copyright, a complete copy of the writing receiving protection.

Such filings were made available for examination by the general public by the government bureau where they were filed/registered. This allowed other interested parties to increase their knowledge and, potentially, to benefit the public by encouraging even more research and discovery sparked by the patent description. The difference between a new creation similar to a protected work and one that was derived from the protected creation sometimes results in gray areas.

Today, of course, you can see copyright and patent filings online, either at not cost through a clunky government website or from private information providers who charge a stiff fee for their services.

Here’s what the US Patent & Copyright Office has to say about derivative works in its Circular 14: Copyright in Derivative Works and Compilations:

A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.

To be copyrightable, a derivative work must incorporate some or all of a
preexisting “work” and add new original copyrightable authorship to that work.
The derivative work right is often referred to as the adaptation right. The following are examples of the many different types of derivative works:
• A motion picture based on a play or novel
• A translation of an novel written in English into another language
• A revision of a previously published book
• A sculpture based on a drawing
• A drawing based on a photograph
• A lithograph based on a painting
• A drama about John Doe based on the letters and journal entries of John Doe
• A musical arrangement of a preexisting musical work
• A new version of an existing computer program
• An adaptation of a dramatic work
• A revision of a website

At least in the United States and, likely, in other nations that provide robust protection of creative works (not all do this), there is an ongoing tension between protecting new creations in order to encourage others and allowing other creators to build upon and extend the original creation/discovery.

During the last 30-50 years, the heirs and/or successors in interest of the original creators/inventors have persuaded Congress to extend patent and copyright terms for a longer and longer period of time. The Walt Disney Company has been in the forefront of many such lobbying efforts.

For PG, this is an indication that the purpose of the patent and copyright laws – to encourage original creativity in a wide range of fields, which is often an individual or small group effort, has been diluted into a corporate right to ongoing exclusive exploitation of the work of one or more dead individuals.

If PG were king for a day, he might consider going back to earlier copyright protection terms – 14 years after initial publication plus an additional 14 years upon filing of an application for copyright extension. He’s not tied to the specific term of 14 years, but he is inclined not to have copyright protection be calculated based upon the year the author died.

For PG, the fundamental bargain the government offers is: Exclusive use for commercial purposes for a limited period of time in exchange for a public filing of the creation so others can study it, learn from it and build upon it after the period of exclusivity ends.

Are tattoos protected by copyright?

From Copyright Alliance:

Yes, tattoos can be protected by copyright.

Copyright can protect pictorial and graphic works so long as they are fixed in a physical object and display originality. Since tattoos are, by definition, fixed—Merriam Webster defines a tattoo as “an indelible mark or figure fixed upon the body by insertion of pigment under the skin or by production of scars“—the threshold question in determining if a particular tattoo is protected by copyright is whether the tattoo is sufficiently original. In the context of copyright, originality doesn’t necessarily mean “novel.” Instead, it requires that the expression be original to the author (i.e. it cannot be copied from someone else), and it must possess at least a minimal amount of creativity.

This issue becomes complicated in the context of video game depictions of tattoos. In 2012, Christopher Escobedo, a tattoo artist based in Arizona, sued THQ, Inc., the makers of the video game UFC Undisputed 2010, for its depiction of a tattoo that Escobedo designed and tattooed on the torso of Carlos Condit—who was at the time the “interim Ultimate Fighting Championship (“UFC”) Welterweight Champion.” The case was ultimately settled out of court.

In 2016, tattoo company Solid Oak Sketches sued Take-Two Interactive for copyright infringement based on the company’s depiction of Lebron James’ tattoos in the game and cover art for the game. In March 2020, a federal judge ruled that Take-Two Interactive could not be sued for copyright infringement over the use of Lebron James’ and other players’ tattoos in its NBA 2K video game. The court reasoned that because tattoo artists know that the tattoos of famous athletes are likely to be displayed in public, they necessarily granted the players a non-exclusive license to use the tattoo as part of their likeness. In addition, the court found the use to be de minimis and transformative fair use.

Link to the rest at Copyright Alliance

Why This Poet Declared War on Her Own Book

From The Walrus:

THEY KILL THE WOMEN and the children first. This is the most cost-effective decision. The captain knows by heart the commodity value of a child, knows the women will be worth less than the men at the auction block. So he picks the obvious choices: he orders the crew to push them, the women and the children, through the cabin windows and into the Atlantic.

It’s September 1781, and having departed the Guinea Coast for a sugar port in Jamaica, the Zong is overloaded with enslaved Africans. Because the captain lacks navigational and command experience, the voyage will take eighteen weeks instead of the usual six; the ship will run low on drinking water; slaves and crew members will take ill and die; the captain will become desperate. Soon enough, he will compensate for his mediocrity with quick and murderous calculations. Over the course of ten days, to conserve resources, he and his crew will sacrifice Africans to the sea—according to some sources, it may have been as many as 150. When the ship docks in Jamaica, the captain will file an insurance claim for the loss of his “cargo.”

Here is how a massacre enters history: as a story of property destruction.

In 2008, the Toronto-based writer M. NourbeSe Philip published a dizzying, fragmented book-length poem entitled Zong!: As Told to the Author by Setaey Adamu Boateng, a seven-year archival project that bears witness to those atrocities and attempts, as the author says, to “defend the dead.” She composed and rearranged the text using words sourced exclusively from the two-page legal case report of the insurance claim she tracked down in the University of Toronto’s law library. In time, Zong! became a widely studied work of contemporary literature, performed dozens of times in at least nine countries and excerpted in arts galleries globally. Critics have described it as a masterpiece.

In early 2016, Philip received an enthusiastic email from a woman called Renata Morresi, a translator and poet who teaches American literature at the University of Padua in Italy. Morresi wanted to translate Zong! into Italian. Her academic research focused on, among other subjects, “slavery and its ‘unconventional’ representations,” and she had been recently awarded Italy’s national prize for translation. She thought Zong! could be valuable to Italians who were striving to make sense of their own contemporary crisis. That year alone, CNN reported, an estimated ninety migrants from North Africa and other Arab countries were drowning every week in the Mediterranean in their bid to escape violence, poverty, persecution, and war. Morresi did not, at the time, have a publisher for the translation or a contract or anything in the way of a plan, and Philip felt the emails gave the enterprise the feel of an unserious project. She advised Morresi to contact Wesleyan University Press, the book’s American publisher, which owned rights to Zong!

“I don’t know whether you speak Italian,” Morresi wrote to Philip, “but if you feel like we can discuss the drafts (it would certainly be an invaluable help for me).”

The next time Philip heard from anyone about the Italian translation of Zong! was five years later, when a small Italian publisher called Benway Series emailed the proofs with an invitation to the book’s online launch. It came as a surprise. Neither Morresi nor Wesleyan had informed her that a formal agreement was signed and subsidiary rights to her book transferred. By then, two other translators had joined the project. The translation was supported by the Canada Council for the Arts, a public funder that serves Canadian artists and arts organizations, but the $13,350 it paid Benway Series had likewise changed hands without the artist’s knowledge. (Part of the CCA’s literary translation program serves international publishers.)

The lack of transparency confused her: it’s professional practice to involve the poet in any translation work. She emailed Suzanna Tamminen, the director and editor-in-chief at WUP, to confirm a contract had been signed, before congratulating the translators on their hard work. “I am honoured,” she wrote to Benway. “It is so important that this work reach European countries, many of which are the ground zero of the trauma that is ongoing.”

And then she saw what they had done to her book.

LITERARY TRANSLATION is an unforgiving balancing act. The Italian saying “traduttoretraditore”—or, “translator, traitor”—captures how any translation is destined to obfuscate the true meaning of the original, sealing the fate of what Miguel de Cervantes in the seventeenth century called a work’s “original luster.” The consequence is both reader and author are betrayed. Vladimir Nabokov famously translated his own novels into Russian to avoid seeing them “degraded and botched by vulgar paraphrases.” He was deeply contemptuous of Constance Garnett, a translator who basically brought Russian literature to the English-speaking world, because by favouring readability, she often elided an author’s idiosyncrasies. If translators seem inclined to fatalism, in other words, it’s because they’re tortured by the idea that their aptitude will be measured by how invisible they can make themselves.

The translator’s presence in Zong!, though, was not quite the object of Philip’s distress; Philip is not a Nabokovian purist. Translators have worked on her books before, with her approval. The problem was of another nature. Among the myriad reasons Zong! has become such a widely studied work are its disjunctive, distinctive visual qualities—a kinetic form charged with spiritual intent. The poetry sweeps across 180 pages in the manner of vocal jazz or a disordered musical constellation. As if carried off by waves, words float away from each other, swirl around, casting off letters like articles of clothing; syllables gurgle or stutter, refuse meaning. Isolated phrases, seemingly at random, tilt into cursive or italics. Submerged at the bottom of each page are imagined African names for the drowned, whose deaths were originally recorded as “negroe man” or “negroe woman.”

It had taken Philip years to find this form. It wasn’t until after a 2006 sojourn to Ghana, the departure point of the slave ship, that the book’s organizational principle began to slowly reveal itself. That principle became associated with a figure she called Setaey Adamu Boateng, who represented the ancestral voices she believed were speaking through the pattern she was painstakingly creating on the page. “Every word or word cluster,” she wrote in the book’s closing essay, “is seeking a space directly above within which to fit itself.” Those spaces are critical for Philip, because they are intended to represent the very air the enslaved were denied as they sank. “The text is attempting to revivify and recuperate what was lost in those last breaths,” Philip told me. “That, for me, is nonnegotiable.”

When Benway Series sent her the proofs in June 2021, the first thing Philip noticed was that this nonnegotiable rule had been broken. The PDF on her computer screen felt cluttered and claustrophobic. The Italian phrases often nearly grazed the lines beneath them. The formal protocols she had painstakingly established to turn Zong! into what she called a “mourning song” had not been respected. Morresi had attempted to capture the poetry’s pictorial shape, but the translator not only missed the logic behind why the text had been arranged that way, she also failed to consider how that arrangement might need to change when adapted into a foreign language. “What I am committed to is that it’s a dynamic action,” said Philip, referring to Zong! ’s form. “The words have to be positioned in such a way that they breathe.”

When Philip raised these concerns in an email to Benway Series, she was rebuffed. Morresi, wrote the book’s editors, was “extremely skilled and multi-award-winning,” and a first draft of the translation had been anonymously peer reviewed “in very positive terms.” WUP’s head emailed to say it wasn’t part of the normal process to send authors permission updates about their books, and that, anyway, “expanding the critical discourse on the book in this way helps to ensure [it] remains on reading lists for years to come.” Morresi emailed to note that any differences between the source text and its translation were attributable to Italian’s cumbersome morphology: the words inevitably run longer, which made it difficult to adhere to Philip’s unique spacing rules. She would have reached out directly to ask questions, Morresi said, but she assumed Philip wasn’t interested, and she didn’t want to disturb her.

. . . .

After weeks of fruitless discussions, as it became obvious Philip would not consent to the translation, Benway Series went ahead with publication. In late August 2021, when Philip received word that the press was preparing to distribute the book, she demanded the publisher destroy it and scrub all mention of the title from their website. WUP’s Tamminen, now swayed by Philip’s concerns, supported the request. Benway Series refused. In an email signed by two editors, the press argued they had done everything according to the letter of the law. Philip went public on social media and drew the support of more than 1,200 people—among them, poets, editors, scholars, publishers, translators, and readers—who petitioned to have the “flawed” translation recalled and destroyed.

Benway posted a rebuttal on its website, in Italian, that described Philip’s demands as reminiscent “of authoritarian and fundamentalist regimes around the world” and said her accusations of racism were “offensive, not so much to us . . . as much as for all the victims of that gruesome violence.”

It seemed to Philip that Benway Series expected her to be grateful for their attention, that the virtuousness of a small Italian press ought to be celebrated rather than contested. But she couldn’t understand why nobody there thought to contact her about the translation. “Even if there weren’t those underpinning spiritual, historical reasons why the structure of Zong! is important,” she said, “as an artist and as a poet, surely my work must be respected.”

. . . .

Moral rights stem from the Berne Convention, the leading international copyright treaty which states that even if an artist cedes economic rights to their work, they retain the legal grounds to “object to any distortion, mutilation or other modification” done to that work. One option, therefore, might have seen Philip file a lawsuit against Benway Series in Canada and, if she won, go to an Italian court to help enforce it. Neither of these actions would have been easy to pull off.

While Italy appears to provide substantial legal protections to writers and artists, there’s very little Canadian case law on the subject, even though the Snow ruling raised the bar for moral rights infringement. “What it did was set a precedent that in order to win in a case of moral rights, you had to prove that it damaged the honour and reputation of the artist,” said Martha Rans, a Vancouver-based lawyer who specializes in copyright law. But there’s a caveat: you need a reputation big enough that any damage to it can be quantified. “It becomes very difficult to mount a case,” said Rans, “because Canada doesn’t have a lot of what might be considered high-profile artists.”

Link to the rest at The Walrus

PG notes that he was unable to find anything in the OP which indicated that Ms. Philip registered her book in any nation’s copyright office.

The publisher of the original book, Wesleyan University Press, is mentioned only in passing in the OP.

For those not familiar with the institution, Wesleyan University is a very expensive private institution located in Middletown, Connecticut. Wesleyan is one of a small group of similar institutions that are sometimes called the “Little Ivies.”

PG wonders if Wesleyan Press actually granted translation rights to the Italian press or not. Small university presses don’t usually have piles of money sitting around, but, if it did not grant a license for an Italian translation of the book in question, one might think that it might think about raising a fuss about the Italian translation.

Here’s a fuzzy copy of the copyright page for the book.

Observant readers will note that Ms. Philip is listed as the owner of the copyright.

Here’s a list of various organizations that helped fund the creation of Zong.

There are a lot of wealthy organizations mentioned in these acknowledgements. The OP didn’t mention whether Ms. Philip sought the help of Wesleyan University or any of her funding organizations for help in this copyright dispute.

Perhaps he missed the copyright registration sentence in the OP, but, suffice to say, as a general proposition, registering a copyright with any western nation’s copyright office increases the options for enforcing the copyright in many other western nations, most certainly including Italy.

See here for a layperson’s explanation of the benefits of registering a copyright in the United States.

UPDATE

This whole situation seemed weird, so PG dug deeper and searched the United States Copyright Office for Zong.

Here’s what he found:

Registration Number / Date:
TX0007043340 / 2008-10-09

Copyright Claimant: Wesleyan University Press, Transfer: Written Contract.

What is a “Copyright Claimant”?

The US Copyright Office helpfully provides a definition:

Please identify all known copyright claimant(s) in this work. The author may always be named as a claimant, even if the author has transferred rights in the work to another person or entity.

The claimant may also be a person or entity that has obtained ownership of the copyright in the work. But to be named as a claimant, a person or organization must own all rights in the work; ownership of only some of the rights is not sufficient. In addition, a claimant must own the copyright in all of the authorship covered by this registration.

PG then searched Canada’s online copyright records (which are, on the whole, easier to access and understand than those in the US copyright office). PG was not able to find any copyright application for Ms. Philips or her book.

Under various copyright conventions and treaties, a registration of a copyright in one signatory nation is automatically recognized on the registration date in all the other signatories to the convention and/or treaty.

Thus, a registration in the US in 2008 would effectively offer backdated protection in all the other countries bound by the convention/treaty. PG is happy to be proven wrong, but he would think that a registration for Zong by Ms. Philips in Italy would be deemed to have been filed in 2008, the date of registration in the US should she wish to push for a shutdown of the illegal translation of her book.

Circling back around to Wesleyan University Press, it appears in that organization’s copyright registration for Zong that Ms. Philips may have signed over her rights under her copyright to the book to Wesleyan University Press.

However, the copyright page of the book shows Ms. Philips as the copyright owner.

PG isn’t certain if the book’s copyright attribution of the copyright to Ms. Philips was simply recognizing her as the author, but that’s not what the copyright page says.

Wesleyan Press, on the other hand, may have screwed up the copyright filing. Small university presses are not generally known as centers of copyright knowledge.

In PG’s mind, it’s possible that somebody at Wesleyan Press who registers a copyright once every 2-3 months max, may have registered the copyright for Zong “the way we’ve always done it,” and failed to change the Presses boilerplate to register the copyright in Ms. Phillips name as is implied by the book’s copyright page.

If any visitor to TPV has actually read down to the end of this quite lengthy post and has any knowledge concerning what actually happened with Ms. Philips and Wesleyan University Press, PG would appreciate any comments to clarify this apparent mess.

Maria Pallante, Copyright Crusader

From Publishers Weekly:

Maria Pallante took over as president and CEO of the Association of American Publishers in January 2017. In selecting Pallante, a former U.S. Register of Copyrights, the AAP pointed to her strong background in IP law and policy. Copyright protection has long been one of the main priorities of the AAP, and in a time when copyright issues have become more contentious, copyright protection is job one for the organization. Thus, in June 2020, the AAP coordinated a copyright infringement lawsuit by four publishers against the Internet Archive.

. . . .

For some time now, the AAP has made protection of copyright its top priority. Can you tell me how that decision was reached?

Copyright has been our top priority for more than five decades because it is the legal foundation of the publishing industry, but you are right that we’ve been unusually busy of late. That’s because the Internet Archive and its affiliate Library Futures have aimed a series of torpedoes at the Copyright Act, efforts that would irrevocably weaken the ability of authors to license their works, if not create them in the first place. Our board has prioritized these threats and takes them seriously, as should anyone who cares about the future of books.

When e-books first emerged, many publishers were concerned that their “frictionless” ease of use through libraries would lead to a decline in the sales of both print and e-books. That talk faded, but it seems to be a concern once again, with publishers seeing it as a reason e-book sales have not grown. Is that something that’s being talked about?

This is a fair observation, because e-book sales are definitely declining and e-borrowing is definitely exploding. Logically, the more seamless it becomes to download a digital copy for free without waiting, the more publishers will worry about the balance between their respective markets. They have a responsibility to their authors and their own sustainability to do so.

In a recent e-book study, the Federation of European Publishers proved the correlation between frictionless borrowing and consumer decline, and I don’t think anyone was surprised by that conclusion. But for copyright businesses, friction is an established calculation that goes far beyond libraries. It’s the reason we experience a constantly changing menu of streaming, subscription, and download services for music, movies, and video games, with continual adjustments to pricing, release dates, and wait times. These terms can be mystifying, indeed frustrating, from the outside, but they are designed to promote creative works within fiercely competitive environments.

I do think publishers have worked hard to provide e-books to libraries at the same time as consumer releases, because librarians are respected partners in a book’s success. As OverDrive reports, libraries achieved all-time records for digital loans in 2021 while lowering the average cost per title borrowed. Indeed, most licenses permit libraries to transmit e-books to patrons dozens of times under terms that are, all told, a fraction per-use of what consumers pay for restricted access, meaning no redistribution.

One thing I can say with confidence is that technology is constantly evolving, and therefore authors, publishers, and libraries, as well as booksellers, will continue to negotiate their respective agreements and budgets. Copyright markets don’t work very well if they’re stuck in time, which is why we no longer have eight-track cartridges in our cars.

What is your view of controlled digital lending, or CDL?

CDL is a baseless justification for infringement and antithetical to both copyright law and common sense. It was hobbled together by a small group of individuals with close ties to the Internet Archive, and for that reason it will always be associated with that defendant’s conduct. The law is clear that formats are distinguishable, meaning that no one—not a private person, public library, or pirate—may distribute digital bootlegs of tangible copies, whether they are ripping hardcover books, vinyl albums, or compact discs. It doesn’t matter if the defendant claims to manage a virtual bookshelf or maintains the physical copies, as made clear by cases in the music and movie space. Courts have decried such format shifting because it exceeds the first-sale doctrine and forces authors to subsidize activity that they did not license and cannot contain.

What I will say as a former policymaker is that there are important instances in which libraries and museums should be able to make copies of works in or for their collections—for example, to capture, preserve, or loan at-risk material. But activity like this does not require a new theory and moniker: it will already be governed by fair use and/or the detailed library exceptions in the Copyright Act. Neither Congress nor the courts has ever sanctioned a practice like CDL, because it strips authors of the benefit of their intellectual property, while permitting aggressors to prosper in their stead.

Link to the rest at Publishers Weekly

The court of art criticism is in session

From SCOTUSblog:

Today, the court’s attention will be on the often glamorous worlds of Pop Art, rock photography, and glossy magazines. It will veer into “Lord of the Rings,” “Jaws,” “Mork and Mindy,” and “The Jeffersons.” And one of the lawyers participating today will try to bury a beloved television producer and social activist. But I’m getting a little ahead of myself.

. . . .

And then it is on to the argument in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, a copyright dispute over a photograph of the musician Prince. Rock photographer Lynn Goldsmith, who took the photo of a vulnerable and sensitive-looking Prince in 1981, when he was still an up-and-coming musical artist, is in the second row of the public gallery today.

When Prince shot to stardom by 1984 with his “Purple Rain” album, Vanity Fair licensed Goldsmith’s photo for use as an artist’s reference for an illustration to accompany a profile of Prince. The artist they engaged was Andy Warhol, famous for his paintings of Campbell’s Soup cans and celebrities such as Marilyn Monroe.

Warhol cropped and silkscreened Goldsmith’s photo into a series of 16 images of Prince, now known as the Prince series. One of those — “Purple Prince” — ran with the Vanity Fair article. Another, “Orange Prince,” ran on the cover of a commemorative magazine that publisher Condé Nast issued after Prince’s death in 2016.

Left: A 2016 Vanity Fair cover featuring Andy Warhol’s image of Prince. Right: Lynn Goldsmith’s 1981 photograph of Prince, which was a basis for Warhol’s image. (Source: court documents)

Goldsmith objected to the 2016 use as a violation of her copyright, though the New York City-based Andy Warhol Foundation filed suit pre-emptively to seek a declaration that the entire Prince series was a fair use under copyright law because, according to the foundation, Warhol’s images transformed Goldsmith’s photo into a new work with a different meaning or message.

Roman Martinez, representing the foundation, tells the court that “the stakes for artistic expression in this case are high. A ruling for Goldsmith would strip protection not just from the Prince series but from countless works of modern and contemporary art. It would make it illegal for artists, museums, galleries, and collectors to display, sell, profit from, maybe even possess a significant quantity of works. It would also chill the creation of new art by established and up-and-coming artists alike.”

Goldsmith is shaking her head as Martinez speaks. Throughout the argument, she will visibly show her disagreement or nod in agreement with various points made by the lawyers and justices. Elsewhere in the courtroom are several representatives of the foundation—President Joel Wachs, Chair Paul Wa, and Chief Financial Officer and Treasurer KC Maurer. I can’t see whether they are shaking their heads or not.

Link to the rest at SCOTUSblog

Why ideas are worthless in copyright terms

From Arts Hub:

Consider this scenario… let’s call it Situation A. An artist applies for a large commission with a high profile arts institution. Their application includes detailed plans of their proposed project. Yet after receiving news their application was unsuccessful, they realise another applicant has been engaged by the same institution to deliver a project with similarities to their proposal.

Then there’s this circumstance – let’s call it Situation B. An emerging artist opens a dialogue with an esteemed curator about their work. Their discussions, which take place over a number of months, include the artist divulging plans for future artistic projects. After conducting these seemingly trustworthy talks over time, the artist sees that one of the curator’s forthcoming exhibitions has used the artist’s independently conceived ideas as the basis for that show.

What kind of action can these artists take to highlight these injustices and secure compensation for their losses?

The unfortunate news is that in legal terms, neither artist in those situations is likely to be compensated for these breaches of trust, nor would they gain rights to be acknowledged as the original creators of the works.

Basic rules of thumb in IP for artists

The IP outcomes in these scenarios come down to the fact that the laws in this area only cover the creator’s work – they do not cover their ideas.

Aditya Vasudevan is a solicitor with Arts Law, and during his time advising artists in areas of IP law, he has seen a host of different cases where the lines between ideas and artworks have been difficult to discern.

However, when it comes to protecting yourself against any kind of IP infringement there are some basic precautions creatives can take to help lessen their risks.

Number 1: Realise that ideas are worthless

Vasudevan says that fundamentally, artists must realise that in copyright terms, their creative ideas are worthless until those ideas form part of a tangible piece of work – whether that be as a drawing, a painting, a script, a musical score or a work of literature (for example).

‘Copyright law doesn’t protect ideas, concepts or facts. It only protects your specific creative expression of those things in a material form,’ he explained.

‘For example, copyright wouldn’t protect the idea of painting a particular beach at sunset, but it would protect your specific painting of that beach.’

Number 2. Documentation can help you  

The Arts Law solicitor also said that if and when artists decide to take legal action related to breaches of IP in their work, showing documentary evidence of its creation and distribution may help your case.

‘When you create an original work like a painting or sculpture, copyright protects that work automatically. You do not need to register it, but proof is important when it comes to legal processes,’ he explained.

Vasudevan suggested that in a legal case, the judge may look at evidence to show that you created the work, when you created it, how far you got in the process, and who it was shared with.

‘So, a detailed draft sketch for a painting you have named and dated could be enough to protect your idea, because you have fixed that idea in a material form,’ he advised.

Vasudevan also explained that if artists can show evidence of who their work had been shared with prior to the IP infringement, this could help strengthen their case.

Especially in the early stages, keeping records of who you have shared your work with is a good idea.

Aditya Vasudevan, Arts Law solicitor.

‘If someone copies a substantial part of your draft sketch in their painting, evidence that you have shared your sketch with them may help you make a copyright infringement claim.’

Link to the rest at Arts Hub, and thanks to C. for the tip.

PG says that although there are some differences in the copyright laws in the UK and the US, the US laws have definitely influenced by Britain’s laws together with various international copyright conventions and treaties to which both the UK and the US are parties.

The United States Constitution provides the basis for the copyright laws that would later be enacted.

The Constitutional Convention convened in May of 1787. The final document was ratified in September 1787 and the delegates left for home. However, the Constitution required ratification by at least nine of the thirteen states before it became binding on all. Ratification took some time.

Delaware was the first state to ratify the Constitution in December, 1787. In June of 1788, New Hampshire was the 9th state to ratify the Constitution, which made it binding on all thirteen states by the terms of the document. In July, New York became the 11th state to ratify.

Beginning in December of 1988 and ending on January 10, 1789, the first Presidential Election was held. In February, 1789, the electors selected George Washington to be the first President of the United States.

In April, 1790, the Senate and House of Representatives convened for the first time.

Rhode Island was the 13th and final state to ratify the Constitution in May, 1790.

Article I of the Constitution establishes the Legislative Branch of the US government.
Section 8 of Article I (Enumerated Powers), Clause 8 (Intellectual Property) states:

Congress shall have the Power . . .

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

On May 31, 1790, the first copyright law was enacted by Congress under the Constitution. The new law was relatively limited in scope, protecting books, maps, and charts for only 14 years. These works were registered in the United States District Courts.

Suffice to say, the copyright law has been amended a number of times since it was first enacted. For example, generally, copyright protects a creative work for the life of the creator/author plus 70 years.

This lengthy period of protection is regarded by a sizeable group of copyright aficionados, including PG, as too long a period of time. Yes, it is a “limited time,” but so is one million years.

Shopify settles textbook publishers’ lawsuit over alleged piracy

From Reuters:

Shopify Inc has settled allegations by a group of major educational publishers that the Canadian e-commerce company enables piracy on its platform, according to a Tuesday filing in Virginia federal court.

The joint filing said Shopify had resolved the dispute with Macmillan Learning, Cengage Learning, Elsevier, McGraw Hill, and Pearson Education and asked the court to dismiss the case with prejudice, which means it cannot be refiled.

. . . .

The publishers sued Shopify last year, accusing it of ignoring repeat notices that its users sell pirated digital versions of their textbooks and other materials. The lawsuit said Shopify’s “blind eye” to piracy allows for copyright and trademark infringement on a “massive scale.”

The publishers asked the court for statutory damages of up to $150,000 per infringed copyright and $2 million for each counterfeited trademark, and listed more than 3,400 copyrights that were allegedly violated.

. . . .

Shopify responded in January that it addresses infringement notices “promptly and appropriately” and accused the publishers of trying to expand the “universe of actors subject to copyright damages.”

The company said the publishers sued because they failed to convince Congress to change the Digital Millennium Copyright Act, which protects internet hosts like Shopify from court claims if they take reasonable measures to address user infringement.

Link to the rest at Reuters

Why Getty Banned AI Images (For Now)

From Plagiarism Today:

Yesterday, Getty Images and iStock have announced that they are following in the footsteps of other art sites, including NewGrounds and Inkblot, in banning artwork generated by artificial intelligence (AI) from their service.

According to Getty’s announcement, “There are open questions with respect to the copyright of outputs from these models….” They further add that the move is to protect their customers from potential legal issues down the road.

Getty noted that this ban does not prevent the submission of 3D renders nor does it prevent the use of any digital editing tool, such as Photoshop or Illustrator.

It’s easy to look at this as another example of a battle line being draw with regards to AI-generated art. However, it’s a bit more complicated than that.

As divisive as AI-generated art is, the Getty ban is very different from the ones we discussed earlier this month. The reason is that Getty works different from sites like NewGrounds and their lack of comfort with AI stems almost entirely from legal concerns, not quantity or quality concerns.

To that end, it’s worth looking at why Getty, most likely, chose to ban AI images and how that could impact AI art moving forward.

Why Getty is Different

Sites like Newgrounds and Inkblot accept user-submitted content and host it on their servers. Because of this, they enjoy a great deal of protection under the Digital Millennium Copyright act (DMCA) should some of that content turn out to be infringing.

In short, under the DMCA, as long as they retain a DMCA agent and remove allegedly infringing content when properly notified, they will be protected under the law. 

However, Getty is in a different position. First off, they have editorial control over the images and then license those images to customers. This greatly increases their legal exposure as they could face repercussions both from directly from artists and their customers.

After all, part of Getty’s service they provide is that they promise customers that they hold the rights to the images they are licensing and, because of that, customers won’t face legal consequences for using Getty-licensed works.

But, with AI, that becomes a problem. All AI systems are trained on earlier works, and how much of those earlier works make into the images that it outputs depends entirely on the AI and the prompt it was given.

The fear is that the AI could “generate” art that is so similar to some of the work it was trained on that it could represent a copyright infringement. However, there’s simply no way for the human creator of the AI work, let alone Getty, to know if that’s a possibility with a given image.

As such, Getty has decided to avoid the issue altogether for now, banning AI art from its service.

Not Just Copyright

Though copyright gets the lion’s share of attention when it comes to legal issues AI art faces, there are other potential problems too.

For example, AI can be used to create images of real people in very unreal situations. We saw this recently with an AI app that swapped the face of actors in porn films with other people, creating the illusion that a different person was in the footage.

Though the AI that performed that was shuttered, there’s no reason other tools couldn’t do the exact same thing.

However, it isn’t just pornography. AI can generate images of individuals in a variety of compromising situations that never happened such as getting arrested, supporting/speaking hate speech and so forth.

All this raises issues of defamation. This is especially difficult for Getty, as many of their customers are news agencies, seeking photographs to accompany their reporting.

Getty is in the business of licensing images that are free of legal issues. In short, they’re selling legal certainty. AI images are the antithesis of that, generating not just countless images, but an equal number of legal unknowns that Getty is not prepared to take a chance on at this time.

Link to the rest at Plagiarism Today

The OP continues, noting that at least one other image-posting/licensing site has prohibited AI generated images.

PG suggests that litigation concerning copyright and ai images is almost certain to happen at some point in the not-too-distant future. If he had to guess about an early plaintiff, he would name Walt Disney, which has made and continues to make a huge amount of money from its cartoon characters.

If anyone sees/hears about an ai copyright case, PG would appreciate an alert through the Contact PG link at the top of the blog.

Tedious Anti-Copyright Stance of EFF is Not About Protecting Anyone

From The Illusion of More:

Welp (as the kids say), it looks like Katherine Trendacosta of the Electronic Frontier Foundation (EFF) found an old PowerPoint deck from 2012 and used it to write a new post ominously titled Hollywood’s Insistence on New Draconian Copyright Rules Is Not About Protecting Artists.

Typical of the EFF playbook, Trendacosta devotes an entire post maligning the motion picture industry rather than address the “rule” (the SMART Act), which she does not even mention until the final paragraph. At that point, the reader is meant to take her word for it that the proposed legislation is bad because—believe it or not—there is too much diversity and choice in the streaming market, and because film producers want to make money.

Ms. Trendacosta calls streaming a “hellscape” where consumers cannot find what they want and/or where shows and films are canceled or moved to different platforms. She writes, “It’s disingenuous for Hollywood’s lobbyists to claim that they need harsher copyright laws to protect artists when it’s the studios that are busy disappearing the creations of these artists.”

“Hellscape” is a bit dramatic as critiques go, given that market research indicates that 74% of consumers report being satisfied with streaming and that those numbers are currently trending upward. Of course, the anti-copyright playbook Trendacosta is using tells her to imply that when producers make market decisions to stop producing a given work, or to move a work from one channel to another, this is “disappearing” material that should be available in perpetuity. In fact, she inscrutably cites the “disappearance” of a film which is temporarily being made available in a new 4K cinema format and will return to streaming in a matter of months. Hellish, no?

Perhaps Trendacosta is unaware that we are enjoying a new golden age of filmed entertainment available on—or produced especially for—the private screen market. Streaming models have fostered a diverse range of projects that would never have been made, let alone been sustainable, in the narrower distribution paradigms pre-Netflix. But a reality of all this bounty is that more experimentation and risk-taking means that a higher volume of material will be canceled or redistributed more frequently as audiences respond to what gets made. That’s just the business of making entertainment media, and the EFF always acts as if the business is what makes efforts to mitigate piracy somehow dishonest or sinister.

Here, Trendacosta digs a little deeper into the big box of EFF’s toys and argues that ordinary tensions that arise among studios and talent—including strikes and financial disagreements—are evidence that the parties seeking remedies to piracy “don’t care about artists.” True to form, the folks at EFF pretend to care about artists by erecting a false dichotomy between the creators who work on projects and Hollywood, where “Hollywood” is a generic term to describe a monolith that does not exist.

. . . .

So, what is the supposedly “harsh” new piracy remedy that EFF is opposing this time?
The Strengthening Measures to Advance Rights Technologies (SMART) Act is a legislative response to the fact that for more than 25 years, Big Tech has refused to fulfil its side of the bargain struck with the adoption of Section 512 of the DMCA. Simply put, Section 512(i) requires online service providers to collaborate with copyright owners to develop standard technical measures (STM) to identify and expeditiously remove infringing content from internet platforms.

But not only did the development of STM never quite happen, the Googles and Facebooks of the world, who came after the OSPs that negotiated the DMCA, benefitted from mass infringement on their platforms because the DMCA shielded them from liability.

SMART seeks to address more than two decades of stonewalling by adding a new Section 514 to the DMCA that would create new remedies to confront Big Tech’s refusal to adopt appropriate and affordable technical measures to reduce online piracy. At the same time, its proposals would protect smaller and less well-resourced service providers by calling for a variety of tailored and practical technical measures to be developed under a multi-stakeholder process overseen by the Librarian of Congress.

This is what the EFF is calling “draconian”—a proposal to restore the intent of the DMCA as it was enacted in 1998. SMART is the first substantive response to Big Tech’s two big lies: 1) We can’t do it; and 2) We shouldn’t do it because it will chill speech. Those arguments have worn paper thin in recent years given the role these same companies have played in fostering the most toxic, Republic-shaking nonsense ever to be “freely spoken.” But credit where it’s due. At least Ms. Trendacosta didn’t say SOPA.

Link to the rest at The Illusion of More and thanks to C. for the tip.

The Technology And Legal Issues Behind Metaverse

From Above the Law:

When most people hear the phrase “virtual reality,“ they probably think of the clunky and uncomfortable headsets popular in the 1990s. However, recent advancements in VR technology have made it possible to create much more immersive experiences, in turn leading to a resurgence in interest in VR, and businesses are starting to take notice.

“Metaverse” is a term used to describe a virtual world created by combining elements of the real world with elements of the virtual one. It describes a type of augmented reality with the potential to change the way we interact with the world around us.

The technology behind the metaverse is still in its early stages, but it holds a lot of promise. One of the most promising aspects of the metaverse is its ability to create a more realistic and immersive experience for users.

Avatars

Avatars are one way that the metaverse fosters such immersion. Avatars are digital representations of people that can be used to interact with the virtual world. They can be customized to look like their users and can be equipped with a variety of different features.

Some avatars can even track users’ movements and replicate them in the virtual world, creating a more realistic experience; features like that make it possible for users to interact with each other more naturally.

Virtual Reality

The metaverse also makes use of virtual reality (VR) technology, simulating a computer-generated environment that can mimic real-world conditions. This allows for a more immersive experience, making users feel more like they are actually in a virtual world.

This technology is still in its early stages, but it has the potential to revolutionize how we navigate the world.

Augmented Reality

Augmented reality describes an enhanced version of the real world created by combining elements of both the virtual world and the real world. This level of immersion makes the VR experience feel more natural while taking advantage of the unique strengths of inhabiting a virtual world.

. . . .

Legal Issues

As the metaverse is still in its early stages, there are several legal issues that still need to be addressed. Below, you’ll find descriptions of some of the most important issues.

Gambling And Lottery Laws

The metaverse is often used for gambling and lottery games. A number of countries have laws prohibiting gambling, and these laws may apply to metaverse games. It is important to check the laws in your jurisdiction and consult a lawyer before participating in any metaverse gambling.

Privacy And Cybersecurity Laws

Since the metaverse is a decentralized platform, it is not subject to the same privacy and cybersecurity laws as traditional centralized platforms. This means metaverse users may have less protection against cyber-attacks and data breaches.

Some of the key questions to consider when it comes to privacy and cybersecurity include:

  • What personal information are you sharing on the metaverse?
  • Who has access to your personal information?
  • How is your personal information being used?
  • Is your personal information being shared with third parties?
  • What security measures are in place to protect your personal information?

A POTENTIALLY LARGE Marketplace

The metaverse’s decentralized nature means that there are no boundaries when it comes to buying and selling goods and services. This can be a great opportunity for businesses to reach new markets, but it also entails some risks, largely in the form of fraud and scams.

User Interactions

The way users interact with each other on the metaverse can have a significant impact on their experience. It is important to be aware of the risks associated with interacting with others on the metaverse.

Link to the rest at Above the Law

Absurd Automated Notices Illustrate Abuse of DMCA Takedown Process

From the Electronic Frontier Foundation:

Every month, TorrentFreak reports on absolutely ridiculous takedown notices issued by copyright holders to Internet service providers related to allegedly infringing content, using the process created by the Digital Millennium Copyright Act (DMCA). This month, TorrentFreak tore apart a series of takedown notices sent to Google by the German-based Total Wipes Music Group targeting, among other things, an EFF webpage describing how to use PGP for Mac OS X—a webpage within our Surveillance Self-Defense guide.

TorrentFreak aptly dubbed Total Wipes’ latest streak of takedown requests as “the world’s most idiotic copyright complaint.”

Indeed, the notice that cites the EFF webpage as an “allegedly infringing URL” purports to protect an album called “Cigarettes” on Spanish music label Mona Records. But not one of the seven allegedly infringing URLs listed in the notice even refers to the album, let alone in an infringing way. Another notice issued by Total Wipes to Google two days earlier purports to target pirates of the album “In To The Wild – Vol.7″ on music label Aborigeno Music. Again, not one of the 95 allegedly infringing URLs had anything to do with music, as TorrentFreak reported. The notice instead listed generic download pages for some of the world’s most popular online services, including Skype, Tor, Dropbox, LibreOffice, Python, and WhatsApp.

Total Wipes, which represents 800 international labels, stated in an email to Ars Technica that the recent notices were the result of a bug in their automated anti-piracy script. According to the email, “several technical servers [sic] problems” during the first week of February caused their automated system to send “hundreds” of DMCA notices “not related at all” to any of their copyrighted content.

But the bug is only part of the problem. Sending automated notices, without human review, is itself an abuse of the DMCA takedown process.

The Problem With Robots

According to the DMCA, a takedown notice must be based on a “good faith belief” that the targeted content’s use of copyrighted material is not authorized by law. The use of robots, without any human review, simply cannot satisfy this standard. Indeed, whether a use of copyrighted material constitutes a fair use protected by federal copyright law is often a question only a human can answer, after taking into account the context and purpose of the speech in question.

Total Wipes’ utterly laughable takedown notices illustrate the serious flaws in using robots to try to detect copyright violations. But even without bugs, robots cannot be relied upon to determine whether any given use of copyrighted material is lawful.

We have in the past criticized Warner Brothers Entertainment for using robots to issues thousands of infringement accusations, without any human review, based primarily on filenames and metadata rather than inspection of the files’ contents.  Like Warner Brothers, Total Wipes is similarly using robots to abuse the DMCA takedown process.

According to Google’s Transparency Report, between May 28, 2014 and February 22, 2015, Total Wipes sent Google 41,321 requests to remove webpages from Google’s search results, with a median of 1,214 requests per week. Across those requests, the music group requested that Google remove a total of 196,963 URLs. And according to the Chilling Effects database—which collects and analyzes legal complaints and requests for removal of online materials in an effort to help Internet users know their rights and understand the law—Total Wipes sent Google over 12,000 takedown requests in the last month alone.

Seeing ridiculous takedown requests from Total Wipes is nothing new. Back in August, TorrentFreak reported on a month-long DMCA notice-sending spree in which the music company targeted, among other things, sites that utilized the word “coffee.”

Due to the lack of human review, automated takedown notices often result in censorship of perfectly legal content. Although Google has the wherewithal to analyze takedown notices and reject those that are unwarranted, it doesn’t always do that. And many other sites automatically take down allegedly infringing content upon receipt of a notice, even when the notice is clearly bogus. This is because so long as a service provider complies with the DMCA’s notice and takedown procedure, it is protected from monetary liability based on the infringing activities of third parties. Of course, unwarranted takedown requests would not subject a service provider to monetary liability, but not all service providers undertake even the moderate level of effort that Google does to assess whether content complained of should actually be taken down.

The Need for Transparency

TorrentFreak was only able to discover Total Wipes’ ridiculous DMCA takedown notices thanks to Google’s Transparency Reportwhich publishes takedown requests—and data regarding takedown requests—made by copyright owners or their representatives to remove web pages from Google’s search results.

Link to the rest at the Electronic Frontier Foundation

Here’s a link to the Google Transparency Report. You’ll see a Content Removal section on the home page and links to several reports. At the Copyright and Google Search section, PG was interested to learn that Google has received take-down notices for 5,955,310,383 URLs.

Per Siteefy, there are a total of more than 1,139,467,659 websites in the world. Of that number, 17% (197,046,670 websites) are active. The 83% which are inactive, Siteefy says most “are parked domains or have a similar function.”

So, in round numbers, with about two hundred million active sites, Google has received take-down notices for about Six Trillion URLs.

Sounds like the take-down-notice industry is overkilling the internet.

With a bit of searching, PG found information about penalties for false copyright infringement claims here and, in the US, 17 U.S. Code § 512, sub-section (f) relating to limitations on liability relating to material online. Someone who is the subject of an improper take-down notice can receive damages plus attorneys fees incurred in defending the claim of copyright infringement.

Last month, the Ninth Circuit Court of Appeals (which has jurisdiction over California and its very large number of creative businesses with very valuable copyrights) held that copyright owners must determine whether the alleged violation of their copyrights is “fair use” under US Copyright law.

A California IP Law Firm wrote the following on its web site:

In an important decision affecting copyright owners, online hosts, and creators of user-generated content, the Ninth Circuit, on Monday, issued a bright line rule that copyright holders must consider the fair use doctrine before issuing takedown notices to remove otherwise infringing content in order to comply with the Digital Millennium Copyright Act (DMCA). The Court’s decision makes clear that a failure to do so can open the door to nominal monetary damages and attorneys’ fees under Section 512(f) of the DMCA for any material misrepresentations made (or improper procedures used) in the course of pulling content from service providers like YouTube.

See here for the rest of the commentary from Cowan, DeBaets, Abrahams & Sheppard LLP

Copyright As Censorship: Abuse Of The DMCA To Try To Delete Online News Is Rampant

From TechDirt:

Online platforms often give access to digital material that is under copyright. If any of that content is infringing, then potentially the platform would be liable as well as the person who uploaded it. Online companies naturally want to be immune to the consequences of any copyright infringement committed by their users. However, companies in the copyright industry also demand the ability to protect their copyright material.

To address this tension, the 1998 Digital Millennium Copyright Act (DMCA) provides online companies with a “safe harbor” in the US, provided they fulfil certain conditions, which includes taking down infringing material when they are made aware of its presence on their servers. This “notice and takedown” system allows the copyright industry to seek out material on sites, and send notices to the relevant Internet companies claiming that there is an infringement, and demanding that it should be taken down. The person who uploaded the material can make a counterclaim under the DMCA. This may trigger a lawsuit from the company claiming copyright. If it doesn’t, the material will be put back up.

Although the safe harbor approach is designed to provide a balanced solution to the requirements of both the copyright industry and the online service providers, it masks a deeper inequality that is typical of the copyright world. Takedown notices are generally sent by lawyers or specialists who carry out this operation all the time, often thousands of times a day, using automated systems. They know the details of the law. Under the DMCA they are only required to provide a statement that they have a “good faith belief” that the use of the copyright material is unauthorized.

The recipients of takedown notices are usually ordinary members of the public. They are unlikely to have any legal training, and yet must respond to a formal legal notification if they wish to make a counterclaim. In addition, their counterclaim must include contact information – probably the last thing that an individual wishes to hand over to a company threatening them. Finally, and most problematically, the counterclaim must include a statement “under penalty of perjury” that the material was taken down by mistake. This is in contrast to the much weaker “good faith belief” that the original takedown notice requires from the notifier. Many will quail at the thought that they risk being convicted of perjury. The end result is that most people will simply accept that their material is removed, even if it was legal, for example under fair use.

This unbalanced nature of the system makes it ripe for fraud, whereby people falsely claim to be the owner of copyright material in order to get it removed from a Web site. Among the millions of removal requests stored on the Lumen database, Shreya Tewari – a Berkman Klein Center Research Fellow on the Lumen project – found nearly 34,000 takedown notices that “appear to be attempts to misuse the DMCA notice-and-takedown process”:

The notices I found use the “back-dated article” technique. With this technique, the wrongful notice sender (or copier) creates a copy of a ‘true original’ article and back-dates it, creating a ‘fake original’ article (an article that is a copy of the true original) that at first glance appears to have been published prior to the true original. Then, based on the claim that this back-dated article is the ‘original’, the copiers send a DMCA to the relevant Online Service Providers, alleging that the true original is the copied or ‘infringing’ article and that that the copied article is the original article — requesting the takedown of the true original article. The wrongful notice sender then removes the fake original url after sending the DMCA request, likely in order to ensure that the article does not stay online in any form. If the takedown notice is successful, this means the disappearance from the internet of information that is most likely to be legitimate speech.

The post on the Lumen database blog has some interesting statistics about such takedown notices: 34,000 removal requests were sent by just 30 different notice senders, targeting 550 domain names, mostly online news sites. The material targeted generally concerned allegations of “misconduct, corruption, sexual harassment and other allegations against the same set of individuals”. It looks like the DMCA’s powerful takedown provision was being used to wipe embarrassing news articles from sites around the world.

An entire business sector, called “reputation management”, has sprung up to offer this kind of service. Specialists use DMCA takedown notices as a way of intimidating sites, and persuading them to remove material that is inconvenient for the reputation management company’s client in some way.

Link to the rest at TechDirt

How to Use Images of Real People Without Violating Privacy and Publicity Rights

From Helen Sedwick:

Suppose you find the perfect image for your book cover on the internet—a plucky redhead with a perfect pout. Even better, the photo is available under a Creative Commons attribution-only license that permits commercial use. What a money saver!

But wait. Do you have a release from the plucky redhead? Do you need one?

Or you attend a writers’ conference and take photos of a famous author speaking at the podium. Later, you capture that same author when he is sloppy-faced and drunk at a large reception. Later still, you snap a photo of him punching a writing rival in the restroom. Can you post those images on Pinterest and Facebook without risking a lawsuit?

Writers should be nervous when incorporating images showing identifiable people in their blogs, books, or social media postings. Violating privacy and publicity rights is a potentially costly mistake.

But you don’t want to walk around with blank releases in your pocket. And what if the photos show hundreds of faces? Do you need releases from every recognizable person? Without releases, are you limited to posting photos of cute puppies and selfies?

Using Images with Identifiable People

The rules about using images with recognizable people come down to two considerations:

  • Did the person in the photo have a reasonable expectation of privacy?
  • How is the image being used?

You need to consider both. Passing one test is not enough.

Did the person has a reasonable expectation of privacy?

Generally, people do not have a reasonable expectation of privacy for anything they do in public. The exception is a performance or meeting where you are informed that taking photographs is prohibited. In those situations, you make an implied promise to honor the no-photo request as a condition to attending the performance or meeting.

If a photo was taken in a private setting, such as a home or office, you should assume you need permission before you post or publish any image showing identifiable people. Contact everyone recognizable in the photo and ask for a release. I provide a sample below.

So for the image of the redhead, look closely to see if the photo was taken in a public place? Since it is often impossible to know, I recommend against using any Creative Commons image showing recognizable faces unless it was obviously taken in a public place.

Regarding the famous author, you may assume the author had no expectation of privacy when speaking at the podium and getting drunk at the reception, since both were in public.

. . . .

Is your use commercial?

Do not use an image of a recognizable person for advertising or promotional purposes ever, even if it was taken in a public setting, is available under a Creative Commons license, or is in the public domain, unless you have written permission. Using anyone’s image for commercial purposes violates that person’s right to publicity. You could be liable for damages, including punitive damages. In some states, these rights survive for up to 75 years after a person’s death.

The line between commercial and non-commercial is fuzzy. Using an image on a book cover, t-shirts or other merchandise is commercial, but posting it on a blog or social media site that is informative and editorial is probably not. Use common sense. How would you feel if you were in the photo?

To return to our hypothetical famous author, you may post an image of the two of you shaking hands or sharing a beer, but don’t say or imply that the author gave your book glowing reviews without written consent. I would not put those images on the back of your book without consent; that’s too closely related to selling a product.

As for the plucky redhead, contact the original photographer and ask whether a release was obtained or is possible. If you use the image on your book cover without a release, it could cost you plenty.

Will your use imply any advocacy or endorsement?

Even if the use is not commercial, do not use a person’s likeness to imply that the person advocates or supports a certain political, religious, charitable or other position without a clear, written release. Again, this violates privacy and publicity rights.

. . . .

How high is the M.E. factor?

As an attorney, I am often asked, “Can someone sue me?” Unfortunately, just about anyone may sue you, even if the suit is frivolous. My rule of thumb about litigation risk is the M.E. Factor: money multiplied by emotion. If a lot of money is involved, then a lawsuit is likely even if there is little emotion involved. On the other hand, if someone is angry, offended, or threatened, then they are likely to sue regardless of a small financial stake. If you get someone peeved enough, you may awake one morning to a process server banging on your door.

Link to the rest at Helen Sedwick

PG says it’s always best to obtain the person’s permission. In writing and signed by the person.

If you’re obtaining an image from an established stock photo seller, you should be safer, but make certain that you’re obtaining the right to use the image for commercial purposes.

If you’re picking up an image online, even if the website says the image is offered under a Creative Commons License that permits commercial use (some Creative Commons licenses do not include permission for commercial use), you’re still not necessarily in the clear.

Anyone can post an image they find online and say the image is offered under a Creative Commons license. However, if the creator of the original image did not grant a Creative Commons license to the image to whomever posted it online, you’re still looking at a potential copyright violation.

The safest place to obtain stock photos for commercial use is a well-established and large stock photo vendor. Adobe is one prominent example.

Trade bodies warn new data mining copyright exception will have ‘severe negative impact’

From The Bookseller:

Trade bodies including the Publishers Association have warned the government that its decision to introduce a new copyright exception will “seriously undermine the UK’s intellectual property framework”. 

Text and data mining encompasses techniques used for computer-based analysis of large amounts of data, and is often used in AI. The exception, announced in June following a consultation, would allow any entity, based anywhere in the world, to mine copyrighted text and data for free, for commercial use. 

In a letter addressed to secretary of state Kwasi Kwarteng, signatories including Publishers’ Licensing Services, the Association of Learned and Professional Society Publishers and the Independent Publishers Guild warn “the government’s decision to create a broad copyright exception will seriously undermine the UK’s intellectual property framework, conflict with international law, and… unintentionally provide international rightsholders and non-UK based research organisations with a competitive advantage.”

It continues that the proposed exception would “have a severe negative impact on UK rightsholders” and create an unfairness that benefits those using content for text and data mining.

“The immediate consequences of the exception will be that, without the ability to licence and receive payment for the use of their data and content, certain businesses will have no choice but to exit the UK market or apply paywalls where access to content is currently free,” it says. 

“The UK’s world-leading copyright framework is fundamental to the success of the UK publishing industry, as well as the wider creative economy. It empowers people and businesses from across the country to invest in and create a wealth of different products, from novels to academic journals, from databases to newspapers.”

Link to the rest at The Bookseller

That Was My Idea! How Hollywood Is Avoiding Story Theft Claims

From The Hollywood Reporter:

A ragtag group of misfits, each with their own unique skill, bands together to pull off a high-stakes con. Depending on your preferences and streaming subscriptions, the film that comes to mind could be the 1955 classic Rififi, this year’s DreamWorks animated comedy The Bad Guys or any of the dozens of other heist movies like The StingReservoir DogsOcean’s ElevenNow You See Me and Baby Driver that were released in between.

Tropes aren’t specific to the heist genre, and by definition they’re not uncommon. Yet, that kind of similarity is often enough to spark an idea theft claim — and in the peak content era, there’s more opportunity than ever to file such suits. Ideas are generally not protectable absent an agreement, so the cases usually manifest as claims for copyright infringement (“I sent an agent my script and another writer copied my particular expression of the idea”) or breach of contract (“I had a pitch meeting and a producer used my idea but didn’t pay me”).

“From a contract perspective, the question is whether or not an agreement is reached,” says Stephen Doniger of Doniger Burroughs, a litigator who often represents plaintiffs in intellectual property cases. “People pitch things all the time in hopes someone thinks they’re brilliant and wants to work with them. That doesn’t create an automatic agreement for payment if they use that idea.”

Entertainment litigator Bryan Sullivan of Early Sullivan reiterates that the idea has to be pitched to someone with the intention of them buying it. “I think that’s the number one misunderstood aspect of this claim,” he says. “If you pitched it to them looking for feedback, like ‘Hey, what do you think of this idea,’ you don’t have any right to sue them if they go off and are hugely successful with the expression of the idea.”

Copyright claims aren’t any easier, as plaintiffs must prove the projects are substantially similar and that the defendant had access to their work. With the ubiquity of social media, access looks different than it did a decade ago. Instead of mailing a treatment to an agency or production company, an aspiring writer can send an idea through a direct message or via email.

TV writer-producer (and former THR editor) Marc Bernardin (Star Trek: PicardCastle Rock) says he politely shuts down any followers who ask him to hear a pitch. “Nobody is trying to be a dick,” he says. “Everybody is trying to protect themselves from litigation and protect aspirants from disappointment. Blowing up somebody’s DMs with PDFs of scripts is not going to do anybody any favors.”

Doing people favors is actually what sparks many idea theft disputes, according to litigator Greg Korn of Kinsella Weitzman, who regularly represents clients defending against these claims. “Someone knows an agent and asks, ‘Can you look at this screenplay by a friend of mine?’ Then later that person sees something that has come out with vague similarities and they fantasize that there must have been some Machiavellian scheme to exploit their idea without them,” says Korn. “It feels like the ultimate injustice. It becomes a matter of principle and pride even when it looks like [a lawsuit] will go badly, and frequently it does.”

Talent lawyer Matt Johnson of JSSK, who works with some of the industry’s most prolific creators, is dealing with two active claims. “One was a blind submission to the friend of my client, and the other sent it to the agency that the person is represented by,” he says. “A good half the time these claims come from someone who’s not connected who’s trying to create a nexus. If it’s not from a trusted source, the number one piece of advice is not to open it. You can prove something wasn’t opened digitally. If something is received in the mail, the same philosophy applies. Return it, unopened, and document it.”

The attorneys consulted by THR suggest that industry reps should follow similar protocol. “I get five to ten submissions a day,” notes talent lawyer Linda Lichter of Lichter Grossman. “They don’t send me the script. They say, ‘I have a great story for client so-and-so,’ and they describe it and ask me to pass it along. I used to reply to every one and say, ‘We don’t accept submissions,’ but now they get sent to spam. It’s too much. Of course, I worry that if they’ve sent it to me and my client happens to do something similar, they’ll say, ‘I gave it to the lawyer, so the client had access.’”

The most recent idea theft case to make headlines came from a self-described aspiring writer and performer who claims ABC’s Emmy-nominated Abbott Elementary is a rip-off of This School Year, her mockumentary-style comedy set in an inner-city school. In a July 12 lawsuit, Christine Davis says she pitched the show to two execs at Blue Park Productions, an incubator for Black female creators, who she believes then took her idea to Hulu. There’s no further detail in the complaint, other than an allusion to connections at the streamer, but Blue Park has no ties to Abbott Elementary.

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

Before he was a lawyer and when he started working for a large advertising agency, PG recalls being briefed by an agency lawyer with a couple of other new hires about how to handle unsolicited ideas.

As PG remembers it, the drill if an employee of the agency received an unsolicited idea for a commercial or advertisement, she/he was instructed to stop reading it as soon as they discovered what it was, draw a line where they stopped reading, labeling the line with something like, “I stopped reading here,” put it into an envelope and send it to the agency’s attorney.

For the record, PG has never received such a letter, email, etc., and doubts he qualifies as a juicy target for anyone to sue these days.

If Mrs. PG or a friend of PG’s received such a letter, PG would be inclined to follow the general pattern described in the OP, send it back with a letter or email saying you don’t accept ideas from anyone, send the original back and keep a copy of your letter or email somewhere (but this is not legal advice).

AI-Assisted Inventions Could Spur New Patent Litigation Wave

From Bloomberg Law:

The amount of human involvement needed to secure a patent when artificial intelligence is used to create an invention remains up in the air after a Federal Circuit decision shutting down the possibility of solo AI inventorship.

Patent attorneys expect more litigation on the use of AI in inventions to follow the US Court of Appeals for the Federal Circuit’s ruling last week that artificial intelligence systems can’t be the sole inventors on patents. The three-judge panel noted that the decision was confined to the question of whether computer scientist Stephen Thaler’s creativity machine could be the only inventor listed on a patent application, not whether inventions “made with the assistance of AI” are eligible for patent protection, according to the precedential opinion.

The opinion left unresolved how some provisions of the Patent Act should be interpreted when AI is involved and what constitutes sufficient human contribution for the person to qualify as an inventor, attorneys said. As the US Patent and Trademark Office grants such patents, courts will start having to grapple with new legal challenges surrounding AI inventions across industries.

. . . .

Thaler’s loss last week marked his latest setback in his quest to convince jurisdictions around the world that his creativity machine called DABUS is the rightful inventor on two patent applications. The Federal Circuit sided with courts in Australia and Europe that found only humans can be inventors under existing statutes. Thaler said he plans to appeal the Federal Circuit’s decision to the US Supreme Court.

It would be up to Congress to change the Patent Act to allow for non-human inventors, but until then, there’s “no ambiguity,” Judge Leonard P. Stark wrote in the opinion.

More challenges to patents created with the help of AI will follow, said Susan Krumplitsch, a partner at DLA Piper, though they likely won’t center on whether the AI should be allowed to be the inventor, as Thaler argued. When inventions rely on machine learning and neural networks, it’s not clear how important the person was in the creation of the invention, she said.

“These issues haven’t been explored,” Krumplitsch said. “I would expect in the coming years, as these patents come up, and we see them in court, and they’re pulled apart, we’ll see more of a focus on who was doing what, and was the human contribution enough to be an inventor contribution.”

If the artificial intelligence system did all or most of the work, the humans involved in the inventions may not be able to take the oath required by the patent office that they are the rightful inventors, said Christopher S. Schultz, a partner at Burns & Levinson LLP in Boston.

Link to the rest at Bloomberg Law

As PG mentioned in earlier posts, it’s only a matter of time until the AI/author copyright question arises as well.

Prolific romantic fiction writer exposed as a plagiarist

From The Guardian:

A prolific, self-published romantic fiction novelist has been exposed as a plagiarist after a reader spotted that she had switched the gender in a tale of romantic suspense to turn it into a gay love story.

Becky McGraw, a New York Times bestselling writer, was alerted by one of her readers about the similarities between her own novel My Kind of Trouble, in which Cassie Bellamy falls for bad boy Luke Matthews when she returns to her hometown of Bowie, Texas, and Laura Harner’s Coming Home Texas, in which Brandon Masters falls for bad boy Joe Martinez when he returns to his hometown of Goldview, Texas.

“She emailed to ask if I’d started writing gay romance under a pen name,” said McGraw, whose editor subsequently reviewed both books, and highlighted the similarities. These have also been extensively detailed online by novelist Jenny Trout; Trout has provided screenshots and extracts from both books, and writes that “Harner’s clever trick here was to pick a book that was not M/M [male/male], but M/F contemporary romance. As far as readers go, there isn’t a lot of overlap between the two genres.”

McGraw writes: “Since she’d gotten the call from Imelda, the closest thing to a mother that Cassie had known since her own mother died when she was ten, Cassie had been in that mode. Once she decided she needed to come back, the memories she thought she buried ten years ago would not leave her alone. Thoughts of Luke Matthews would not leave her alone.”

Harner, whose Amazon profile says she has written more than 50 novels and sold almost half a million books, writes: “Since he’d gotten the call from Isabella – the closest thing to a mother that he’d known since his own mom died when he was nine – Brandon seemed to be stuck on a never ending sentimental highway. Once he decided he needed to come back, the memories he thought he buried long ago wouldn’t leave him alone. Thoughts of Joe Martinez won’t leave me alone.”

“Her book was almost a word-for-word, scene-for-scene duplication of my book, except the characters’ names had been changed, and short M/M love scenes had been inserted,” said McGraw. “The only scene she didn’t include was the epilogue, which couldn’t be altered to an M/M scene. It involved the heroine in labour and the hero having sympathetic labour pains.”

McGraw is intending to take legal action against Harner, who has pulled the book from retailers since McGraw first posted about the situation on Facebook, along with her Deuce Coop series, which was revealed to be similar to Opal Carew’s Riding Steele novel, again a straight romance turned into a gay one. The similarities were laid out in a second blog post by Trout, who wrote that “it’s almost impressive how much Harner was still able to plagiarise from Carew here, given the fact that the characters are of mostly different physical and clothing descriptions”.

Responding to the Guardian in a statement, Harner said she realised she had “made mistakes”. “I own them, and I will deal with the consequences. In transforming two M/F romance stories into an M/M genre, it appears that I may have crossed the line and violated my own code of ethics,” she wrote.

“For those who know me best, you know that responsibility for my actions begins and ends with me. I will also add there are some personal and professional issues I’ve had to deal with in the last year that have stretched me in ways that haven’t always been good for me. I write about certain concerns related to military service for a reason; however, I am not offering that as an excuse. I just think whenever someone acts so out of character, it’s helpful to ask why.”

Harner added that she was “working to address concerns raised by two authors who have accused me of plagiarism”, saying that she would provide a more complete statement later this week. “Until then, please do not judge me too harshly.”

McGraw, however, urged other romantic fiction novelists to check Harner’s backlist to see if they recognise their work. “Considering that Laura Harner, AKA LE Harner, has ‘written’ in seven or eight genres in five years, started series in those genres, and published 75 books so far in that span of time, I’d say everyone in every genre needs to be concerned, both indie and traditionally published authors,” she said.

Link to the rest at The Guardian

The Female Quixote and Me

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.

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

Don’t count on agents and publishers to polish your diamond in the rough

From Nathan Bransford:

Some authors have heard that agents engage in pre-submission editing prior to submitting to publishers. Failing that, they know that editing is literally in an editor’s job title.

So if you just have a great idea for a book, an agent and editor will help you polish it up into something publishable, right?

Don’t count on it.

Yes, sure. Some agents really do offer pre-submission editing. But typically these are situations where agents are taking a book project that’s nearly there and helping it that last extra mile across the finish line. They’re taking books that are already in the 99.5th percentile and getting them to the 99.9th. They’re not taking a hot mess and turning it into gold.

Ideas are highly, highly overrated. Execution is what matters. Your writing needs to be competent at worst, ideally much more than that. However you feel about [insert traditionally published bestseller with a reputation for being poorly written], it is way better than the vast majority of what goes unpublished.

. . . .

Unless you are writing on a highly topical nonfiction project with a very specific bombshell, current events don’t tend to matter much in the book world, particularly for fiction. It doesn’t pay to rush.

Link to the rest at Nathan Bransford

PG worked for a large advertising agency a long time ago. Shortly after he started work, he had a visit from one of the agency’s attorneys to discuss what to do if he received a letter with an idea for a commercial or other advertisement.

Basically, when PG realized that he was receiving an unsolicited idea from outside the agency, he was to immediately stop reading the letter and mark the place where he stopped reading. He was then to walk the letter over to the legal department and hand it to someone who would draft and appropriate response to accompany the returned idea letter back to the sender.

U.S. appeals court okays Starz copyright claims against Amazon’s MGM

From Reuters:

MGM Studios’ television division on Thursday lost a bid at the 9th U.S. Circuit Court of Appeals to escape hundreds of copyright claims by Starz Entertainment LLC over a licensing agreement gone sour.

The appeals court said that TV network Starz could pursue damages for several instances of alleged infringement that occurred years before the case began.

MGM said in a statement that it was disappointed in the decision, which it said conflicts with rulings by the U.S. Supreme Court and the 2nd U.S. Circuit Court of Appeals. The company said it is considering “further appellate options” and looks forward to defending against the claims on their merits.

. . . .

Starz signed agreements with MGM in 2013 and 2015 to pay nearly $70 million for the exclusive right to show hundreds of MGM TV shows and movies, including the James Bond film series, “Mad Max” and “The Terminator.”

A Starz employee learned in 2019 that MGM’s film “Bill & Ted’s Excellent Adventure” was available to stream on Amazon’s platform during the exclusivity period. MGM later told Starz that it had also licensed many other shows and movies to other services.

Amazon bought MGM for $8.5 billion earlier this year.

Starz sued MGM in Los Angeles federal court in 2020 for violating their contracts and its copyright interests in the licensed works.

MGM asked the court to dismiss 381 of Starz’s 1,020 copyright claims, arguing they involved licenses that expired more than three years before Starz sued. According to MGM, the Supreme Court in a 2014 case imposed a “strict bar” to infringement damages from more than three years before a lawsuit is filed.

The 9th Circuit on Thursday agreed with the district court that the bar does not apply when a plaintiff like Starz could not have reasonably been aware of the infringement when it happened.

“Adopting a damages bar would mean that a copyright plaintiff who, through no fault of its own, discovers an act of infringement more than three years after the infringement occurred would be out of luck,” U.S. Circuit Judge Kim Wardlaw wrote for a three-judge panel. “Such a harsh rule would distort the tenor of the statute.”

Wardlaw also said the rule would “incentivize” infringement, noting that modern technology has made it “easier to commit, harder to detect, and tougher to litigate.”

Link to the rest at Reuters

PG included this as a second story about this litigation because The Authors Guild story was primarily focused on patting itself on the back because the 9th Circuit quoted parts of the Guild’s brief. Evidently the person who wrote the AG article didn’t understand that appellate courts quote from briefs filed with the court on a regular basis.

PG hasn’t dug into the trial material in the 9th Circuit case, but in prior cases, the Supremes have declined to follow the 9th Circuit’s reasoning. The 9th Circuit has been known as the most-frequently-reversed of the Circuits, but its judges continue to go off on legal frolics hither and yon on a regular basis and seems to be immune to embarrassment for its behavior.

Ninth Circuit Affirms in Favor of Creators in Starz v. MGM Copyright Infringement Suit

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

Copyright: American Publishers File for Summary Judgment Against the Internet Archive

From Publishing Perspectives:

[F]our primary member-publishers of the Association of American Publishers have filed a motion for judgment against the Internet Archive in this case that has international implications because of the reach of Internet connectivity. A “summary judgment” is a way for one party to win a case without a trial.

As Publishing Perspectives readers will recognize, this is a stage in two years of litigation that began in early June 2020, when the publishers, three of them among the Big Five, filed a copyright infringement lawsuit against the Internet Archive, in the US District Court for the Southern District of New York.

Those plaintiff-publishers:

  • Hachette Book Group
  • HarperCollins Publishers
  • John Wiley & Sons
  • Penguin Random House

The 2020 lawsuit asked the court to enjoin the San Francisco-based Internet Archive’s “scanning, public display, and distribution of entire literary works”—which it has offered to the international public through what the association terms “global-facing businesses” branded the “Open Library” and “National Emergency Library.”

….

As you’ll remember, the Internet Archive responded by claiming that its operations in the Open Library and shorter-lived National Emergency Library were couched in a concept called Controlled Digital Lending that it asserted would protect its use of copyrighted content without payment or permission as a form of “fair use,” in some cultures called “fair dealing.”

A concise explication of the publishers’ complaint is found in the court filing’s preliminary statement, which says, in part:

“Masquerading as a not-for-profit library, Internet Archive digitizes in-copyright print books on an industrial scale and distributes full-text digital bootlegs for free. Internet Archive has amassed a collection of more than 3 million unauthorized in-copyright ebooks—including more than 33,000 of the publishers’ [and their authors’] commercially available titles—without obtaining licenses to do so or paying the rights holders a cent for exploiting their works.

“Anybody in the world with an Internet connection can instantaneously access these stolen works via the Internet Archive’s interrelated archive.org and openlibrary.org Web sites …

“Having scaled up its operations since the complaint was filed, Internet Archive now ‘lends’ bootleg ebooks to users approximately 25 million times a year.”

In her comment on the day’s request for summary judgment, Maria A. Pallante, the association’s president and CEO, says, “Outrageously, the Internet Archive has wrapped its large-scale infringement enterprise in a cloak of public service, but that posture is an affront to the most basic principles of copyright law.

“We hope and expect that the court will uphold established legal precedent, including by recognizing that formats are neither fungible nor free for the taking, but rather a key means by which authors and publishers exercise their copyright interests, develop new markets, and contribute to public progress.”

. . . .

What’s more, the publishers assert, “The defendant’s activities are part of a larger commercial enterprise that not only provides access to books but also adds to its bottom line. Between 2011 and 2020, the Internet Archive made approximately US$30 million from libraries for scanning books in their

collections.”

Indeed, the filing goes a long way to take apart various elements of the Internet Archive’s arguments.

  • For example, it points out that the Archive, under the direction of Brewster Kahle, has said that its site helps rural populations, but “Internet Archive does not even track rural readers and ignores the considerable geographic reach of authorized library ebooks.”
  • The filing also produces some interesting observations, reporting that “three of the [plaintiff-] publishers estimate that between 35 percent [and] 50 percent of Americans who read an ebook use free library copies, rather than purchasing a commercial ebook. Internet Archive’s ebooks are no more ‘efficient’ than the authorized ebooks that libraries license—except the authorized ebooks generate revenue for authors and publishers.”

. . . .

There are caveats, as well. Here’s one: “To be clear, this lawsuit does not intend to foreclose the possibility that the unlicensed use of a particular work may be fair use in extenuating circumstances, such as the digital preservation or occasional e-loan of a clearly orphaned work.

“Further, the Association of American Publishers has long supported legislative modernization of Section 108 of the Copyright Act regarding library digitization to address preservation needs. But Internet Archive has gone far beyond what any calibrated exception might allow by appropriating every in-copyright work it can find without license or payment.”

Link to the rest at Publishing Perspectives

A Photographer Is Suing Tattoo Artist Kat Von D After She Inked His Portrait of Miles Davis on a Friend’s Body

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

 Long-term IP Management

From Kristine Kathryn Rusch:

[W]riters should consider their IP a living breathing entity that has a lifespan all its own; IP is not something to be easily discarded or sold for a quick buck.

Writers who do that will live to regret it.

In the previous post, I discussed how the most valuable intellectual properties are the ones with longevity, even if they’re not the most famous properties. A property with a long history also has a long relationship with its fan base, something that businesses which license intellectual property for things like games and toys truly value.

. . . .

In May, Authentic Brands Group issued threatening cease-and-desist letters to wedding chapels around Las Vegas. The reason? ABG told the chapels that they were using Elvis Presley’s image, music, and iconography without permission.

I’d often wondered about some of these places. I live in wedding chapel central, not far from several chapels that have a silhouette of Elvis as part of their logo. Not a week goes by in my neighborhood without an Elvis getting into a Cadillac or a group of Elvises (Elvi?) standing around a fake grass lawn or Elvis hits wafting from the cupola of a nearby wedding chapel.

If I’d given this anything—and I really hadn’t—I’d assumed that these Elvis appearances were licensed. I do recall discussing Elvis impersonators in my recent Entertainment Law class in regards to some music copyrights: the Elvis estate routinely denies Elvis impersonators synch licenses, licenses that allow the impersonator to marry their video to Elvis’s music. I get that; the estate wants videos of Elvis singing to be Elvis, not someone else.

. . . .

When Elvis died, in 1977, there were no impersonators, no Vegas Elvis weddings, nothing like that. There were no laws on the rights of celebrities to control their own images. All of that—what little there is—was developed long after Elvis died, and is still changing and growing.

The Elvis impersonator industry, including the wedding chapels, evolved over decades, and the Elvis estate did not actively pursue imitators. So the industry flourished.

The Elvis estate fascinates me, because of its management history. Elvis essentially died broke, and when his ex-wife Priscilla took over, the estate had little ability to generate revenue. Priscilla, with the help of advisors, created Elvis Presley Enterprises “to manage all Elvis image rights and remaining royalties, which primarily included turning Graceland into a tourist attraction. Between Graceland profits, merchandising, image deals, and royalties from songs recorded after the RCA deal, Priscilla and her co-executors of the Elvis Estate helped grow its value to a reported $100 million by 1993” according to Forbes.

That year, Lisa Marie Presley turned 25, and was able to claim her part of the estate. Then things got messy.

I’m not going to go into the mess here, but suffice to say that Lisa Marie got her father’s business acumen, not her mother’s. She appointed a business guy, one Barry Siegel, to handle the financial affairs. He sold 85% of Presley’s interest in EPE and invested some part (this is murky to me) in a holding company that included American Idol and eventually went bankrupt.

. . . .

During this great financial upheaval, Authentic Brands Group acquired the rights to license and merchandise all things Elvis. ABG calls itself “an intellectual property corporation,” and it handles the images of Marilyn Monroe and Muhammad Ali, among others. The details of the deal aren’t easy to find, but suffice to say that this deal was made for money, not because EPE wanted to lose control of its cash cow.

. . . .

Bullying often works in IP cases because the costs of going to court are so very high. If a company like ABG comes after a small business like a wedding chapel, then the small business usually has no recourse but to cave. A long-term lawsuit on these issues can cost upwards of $100,000 or more. Very few small businesses can absorb that.

But ABG made a biiiiiiig mistake going after wedding chapels in Las Vegas. The wedding industry in this city is a two billion dollar industry, and Elvis-themed weddings are a big part of it.

So, when ABG went after the chapels (and not all of them, either), it screwed up. Within days, the chapels had banded together to fight this overreach, and had the entire city behind them. Eighteen-thousand jobs were suddenly at risk, not to mention all the other Elvis themed products.

ABG didn’t randomly pick this spring to go after the chapels. There’s a big Elvis movie coming out on June 24, and some person at ABG figured that would increase interest in Elvis. They sent these letters so that no one would profit off the Elvis revival but them.

Big problem, though. People have been profiting off Elvis for decades. Yes, EPE and the estate have occasionally gone after trademark infringers, but not in any organized way. Neither has ABG.

. . . .

This has serious implications for potential lawsuits. ABG expected the wedding chapels to roll over and either give up their work or pay hundreds of thousands without a fight. ABG did not want a legal fight, because they have not correctly defended the Elvis brand.

No one has. It would take years, but there’s a strong possibility that lawsuits over the IP could result in ABG and EPE losing their trademarks over Elvis. To maintain a trademark, you need to vigilantly defend it. EPE and ABG did not defend much at all. In fact, for years, EPE and ABG allowed this to go on, and so to try to shut it all down now might be impossible.  (Lawyers, feel free to correct if I’m wrong.)

Given the fact that ABG reversed course the moment the wedding chapels and the city got involved tells me that some higher up in the company blinked. I’m sure some junior lawyer has been fired and now ABG is trying to clean up its mess.

The clean-up is ugly as well. ABG is now trying to charge for a license, which they should have done in the first place. The charge went (in less than a week) from tens of thousands to $500 per year. No one has signed anything or agreed to anything, and if the chapels are getting advice from some of the good IP attorneys in this city, I doubt anyone will pay for a license.

. . . .

Why am I telling you this? Because Elvis Presley is the 7th highest earning dead celebrity, according to Forbes. The estate earned $30 million last year. Yes, some of that was Graceland, but it also included licensing a TV channel and a Netflix animated alternate history series in which (I’m not kidding) “Elvis will explore an alternate history where he faked his own death to fight crime with a secret government spy program.”

As I mentioned before, long-term IP is worth a lot of money. Even when it’s badly mismanaged, as the Elvis estate has been since Priscilla stepped away from it all. The dang thing keeps earning money. Clearly a lot of that money is going into the pockets of people who have no connection to the long-dead King, but that’s because of the mismanagement.

Had Lisa Marie handled everything—or let her mom remain in charge—that $30 million would go directly to the estate instead of others. And clearly, someone would have known better than to mess with the wedding chapels and Vegas, which have done more to keep Elvis’s legacy alive than almost any other group.

. . . .

Story number two is one many of you sent to me. Each one of you sent a different article, and all of those articles were different from the one I initially saw.

Yep, there’s a copyright lawsuit over the new Top Gun: Maverick movie. A lawsuit so serious that should some judge really want to, the judge could pull the movie from the theaters.

The lawsuit was filed in early June, and so far, the movie is still playing well, so I doubt that any injunction will happen. But what’s going on here is almost the exact opposite of what happened with Elvis.

In 1983, Ehud Yonay published an article in California Magazine called “Top Guns.” The original movie, Top Gun, was based on this article. In fact, Ehud Yonay received a single card credit in the movie, which I noticed when I rewatched the movie in late May.

Yonay’s involvement wasn’t hidden, like the involvement of so many writers. It was there for everyone to see.

Yonay died in 2012. In 2018, Yonay’s widow and son filed a notice to reclaim the full copyright…and notified Paramount Pictures that it was doing so. The rights reverted to the Yonays in 2020, and in January of 2020, they filed a notice of termination of the copyright with Paramount Pictures, knowing full well that the Maverick movie was in development.

The Yonays claim that Paramount needed to reacquire the film and ancillary rights to the article. In other words, they needed a new agreement.

Paramount claims they do not need to do that, since the movie was more or less complete before the notice of termination hit. The pandemic messed everything up, including timing here. The Yonays claim that the movie wasn’t completed until May of 2021, long after Paramount received notice.

This will be up to a court to decide. What’s happened in most of these 35-year reclamation cases is that ultimately the licensing agreements are renewed, with a boatload of money going to the copyright holder. Most of these cases are settled and the terms are not disclosed.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

Copyright and Coronavirus

From Publishing Perspectives:

One of the most interesting results of this year’s sessions of the Standing Committee on Copyright and Related Rights last month at the World Intellectual Property Organization in Geneva (WIPO) is a new report, The Impact of the COVID-19 Pandemic on Creative Industries, Cultural Institutions, Education, and Research.

The world of international policy organizations is intensely fond of its acronyms, and the Standing Committee on Copyright and Related Rights is referred to simply as “SCCR.” The International Publishers Association (IPA), also based in Geneva, is the book-publishing body that represents the world industry at this sequence of discussions. So, in non-governmental organization (NGO) parlance, the IPA goes to WIPO’s SCCR as the NGO for publishing.

As you may recall, the SCCR meetings bring together the views and perceived pressure points of international delegates on copyright, not only as it pertains to books and publishing but also to broadcast, archives, libraries, theatrical production, and more. It’s a kind of summit of international stakeholders in industries in which copyright is important.

. . . .

Several points made in the contextual analysis on Pages 5 and 6 of the SCCR report are especially useful.

One of them–as unhappy as it makes us to read it–has to do with the potential for unfinished business relative to the current pandemic: “Far from being an imminent or emerging crisis, it is a sustained crisis: it can last for months or years, over a very long crisis existence phase, and also [be a] cyclical crisis as well because of the different contagious waves.”

The element that publishers are most familiar with, in SCCR terms, is this: “If on one hand, COVID-19 disrupted the market and business ecosystems we traditionally know, on the other hand it has accelerated innovation, introducing the so-called ‘imposed service innovation.’” In publishing, of course, we’ve used the common term “digital acceleration” for this–an “imposed” (indeed) need to muster digital alternatives most particularly in book retail in all formats, but also, for many, in distribution where ebook and audiobook formats were less well established.

And there’s the upbeat part of that digital acceleration: “This specific crisis created a change of mindset and stimulated business opportunities that would never have been considered under normal circumstances.”

. . . .

What Publishing Perspectives readers may find interesting in the report is the look at effects on the audiovisual sector, the music sector, visual arts, museums, and libraries–”nearby” creative industries, each of which has had its own path, to first understanding and then trying to respond to the impact of this protracted emergency. In so many ways, those sister industries’ struggles ran parallel to those of the book business. As bookstores closed, so did art galleries, museums, and auction houses. This, as the roughly half of the music industry’s business was shuttered, as concerts, festivals, tours, and solo performances were cancelled.

Copyright issues in audiovisual abruptly intensified surfaced as the drive toward digitally distributed entertainment in Africa suffered what’s estimated to have been at least a 50-percent loss in potential revenue, the report says, because of “illegal exploitation of creative audiovisual content”–piracy.

Not surprisingly, a line in the report’s conclusion reads, “More attention should be paid to developing e-resources that should respect copyright as a whole, including facilitating uses through licensing, of material in educational and research settings. This could limit piracy damages in crisis times and support the development of local industries while paying attention to creators.”

. . . .

In terms of the piracy issues that plague many of the world’s publishing markets–often with limited and lackluster efforts from law enforcement to help–Al Qasimi called for effective enforcement of copyright protections to shield publishers from “physical and online piracy and to boost the publication of indigenous educational resources and ‘homegrown’ authors.”

Link to the rest at Publishing Perspectives

PG would love to know how many authors from various nations were included among the NGO’s, foundations, large corporations and government agencies attending and, more importantly, speaking at this conference.

17 U.S. Code § 107 – Limitations on exclusive rights: Fair use

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

Home Copyright Protection Company Enters Legal Tech Market with Launch of ‘ImageRights for Law Firms’

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

Music Streaming and The EU Digital Single Market Copyright Directive

From The IPKat:

Readers may have followed the IPKat reports on the UK Music Streaming Inquiry, which focused on musicians and performers’ remuneration from streaming, or lack thereof, amongst other things. However, this conversation is not solely a national matter. It is clear that these issues are global and that there is a need for change at an international level in the music industry.

In May 2021, the French government gave organisations representing performers and phonographic producers 12 months to negotiate an agreement guaranteeing “an appropriate and proportional minimum remuneration for artists” whose works are broadcast by streaming services. The deadline came after a 2015 initiative that sought an industry-led solution for a fair online music industry. The negotiations were mediated and no doubt the EU Digital Single Market Copyright Directive – which requires “appropriate and proportionate” remuneration for performers – also impacted on those ongoing talks.

Now, in May 2022, – much like most of us these days who only meet our deadlines in the eleventh hour– a historic agreement was reached between France’s main organisations representing record labels and performers/musicians. The agreement ensures that all performers will receive a minimum remuneration for the exploitation of their recordings by streaming services and provide a minimum royalty rate. It also embraces the principle of a minimum advance for featured artists, as well as, for non-featured musicians, a specific package for streaming with automatic additional remuneration when listening thresholds are reached.

In particular, the agreement includes the following,: 

• A minimum rate of royalties due to featured performers for the broadcast of their work via streaming; 

• A guaranteed minimum advance of €1,000; 

• A profit-sharing mechanism for the benefit of musicians when musical works reach a certain level of success; 

• A fixed remuneration for the benefit of all musicians; 

• A strengthening of FONPEPS – a private/public fund supporting employment 

• Increasing minimum fees for session musicians 

• Additional remuneration for artists, paid for by their record label, for every 7.5 million plays their song receives

Currently, revenue from streaming for featured artists depends on their recording or distribution contract. Non-featured performers – i.e., session musicians – are usually paid a one-off fee for their time and so do not usually receive anything more when the song is streamed. Therefore, these agreed changes will change the remuneration framework for both featured and non-featured artists from streaming.

Link to the rest at The IPKat and thanks to C. for the tip.

PG notes that both authors and musicians have a long history of being badly treated
by the entities that have traditionally published their work. Despite the
differences between US and French intellectual property laws, unsurprisingly,
the same historic pattern appears to have been established in France.

While PG instinctively comes down on the side of the
author/performer/artist/musician, etc., in matters such as are discussed in the
OP, he wonders whether music producers might dodge this agreement by putting
all the performers onto an airplane and flying them to a destination outside of
France for recording sessions paid for by a non-French (or even non-EU)
corporate entity.

In PG’s hazy memory, he thinks this may have happened with California-based
production companies flying everyone to Mexico for performance and recording
purposes. But, as always, PG could be wrong about that.

One of the fundamental problems in these sorts of situations is that there
are always far more starving artists/authors/musicians, etc., than there are
publishers/producers, etc.

The established stars of any field of creative endeavor have the clout to
negotiate favorable agreements and payments – think author James Patterson in
the US – but those creators farther down the food and power chain are often
faced with take-it-or-leave-it choices due to the substantial power differences
that limit negotiation opportunities.

PG has no idea of how many negotiations he has been involved in for clients,
and although power differences between the negotiating parties are always in
play, competent negotiators can almost always improve the contract provisions
in favor of the parties they represent.

A long time ago, PG was appointed to represent various indigent defendants
who had been charged with a comprehensive and colorful variety of crimes. Here,
the power differences were substantial – the state with a group of salaried law
enforcement officers with access to many other resources the state and federal
governments could provide on one side and PG with a semi-literate impoverished
client on the other. (With a small handful of exceptions, crime does not pay
very well in the real world.)

The only alternative to a negotiated settlement – a plea bargain – was a
criminal trial either in front of a judge (whose predilections were either
known to PG or could be ascertained by a few calls to attorney friends) or a
jury trial in front of twelve randomly-selected adults who happened to live in
the county where the crime had been committed and the criminal charges were
filed. (PG will skip change of venue possibilities in this discussion because,
in 99% of the cases, jurors from one county were, for practical purposes,
indistinguishable from jurors from any nearby county.)

After a jury verdict, PG attempted to chat with as many jurors as possible
to determine what elements had influenced their decision. It was a very
interesting experience because the jurors had sometimes intuited some
additional elements to the case that could not be included in the evidence they
had received for one reason or another. They were also quite good at
identifying a witness who was lying, even if that witness was a law enforcement
officer (a rare occurrence in PG’s experience, but not out of the question).

Juries are relevant to copyright issues because, although almost all
copyright cases are tried without a jury, the Supreme Court has held that the
parties have a right to a jury trial if a defendant in a copyright lawsuit for
statutory damages demands a jury trial. See Feltner v. Columbia
Pictures
, 523 US 340 (1998). Click
here for a summary of that opinion
.

 

Graphic Tools for Indie Authors – Part 1

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.

5 Expensive Problems with Using Creative Commons for Small Business

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.

Songwriter’s heirs can’t reclaim rights to Elvis hit, judge rules

From Reuters:

The daughter and grandson of Hugo Peretti, who co-wrote Elvis Presley’s hit song “Can’t Help Falling in Love,” cannot recover rights to the song from Authentic Brands Group LLC under copyright law, a U.S. appeals court said Wednesday.

The rights that Valentina Peretti Acuti and Paul Reitnauer argued they were entitled to did not exist when Peretti and his family sold them, the 2nd U.S. Circuit Court of Appeals said.

. . . .

It was 1961 when Peretti and two other songwriters wrote the ballad “Can’t Help Falling In Love,” which became a hit for Presley and has since been recorded by hundreds of other musicians.

Peretti, his wife and his daughters agreed in 1983 to transfer their right to renew Peretti’s copyright interest in the song to Julian and Joachim Aberbach, who later transferred it to Authentic Brands. The company manages dozens of brands, including Presley’s.

Acuti and Reitnauer gave Authentic Brands notice that they were terminating the contract in 2014, under a provision of federal copyright law that allows creators to terminate transfers of their copyrights and reclaim them after decades.

The heirs sued in Manhattan federal court in 2020 after Authentic Brands disputed the termination, seeking a ruling that it was effective. The 2nd Circuit agreed Wednesday with the district court’s decision to dismiss the case last year.

The termination right only applies to agreements executed by the author themselves, and the only concrete right Peretti owned at the time of the contract was his “interest in the composition during its original term,” U.S. Circuit Judge Gerard Lynch said.

The rights at issue in the case were not concrete as of 1983 and depended on several hypothetical factors before becoming concrete, like Peretti being alive when the copyright was up for renewal and his wife staying married to him, Lynch said.

Peretti died in 1986, and his widow, daughters, and surviving co-writers renewed the copyright in 1989. The rights at issue came into existence at that time and transferred to the Aberbachs, Lynch said.

Link to the rest at Reuters and thanks to C. for the tip.

PG thinks this isn’t the clearest summary of the case, but hasn’t had the time to read the entire opinion yet. It does appear to raise substantial concerns about heirs of the original creator of a creative work (book, music, painting, photo, etc.) not being able to terminate a license for the work in the same manner as the creator could under §203 of the Copyright Act of 1976.

The Reuters account is a bit jumbled, but PG is going to read the opinion and keep his eyes open for the variety of legal analyses that will be forthcoming in the next several days.

Suffice to say, intellectual property attorneys and their staffs will be burning the midnight oil while reading a lot of contracts their clients have signed that may be impacted by today’s decision. PG also predicts this isn’t the last lawsuit dealing with the issue.

7 Common Types of Plagiarism

From The Grammarly Blog:

Plagiarism is the act of passing off someone else’s work as your own. That’s the most basic definition—there’s actually a lot more nuance to it, and you might be surprised to learn just how many different kinds of plagiarism exist.

. . . .

What is plagiarism, and why should it be avoided?

As we said above, plagiarism occurs when one writer attempts to pass off another writer’s work as their own. But that’s not all plagiarism is. Plagiarism also occurs when a writer references another’s work in their own writing and doesn’t properly credit the author whose work they referenced. It’s even possible for a writer to plagiarize their own work.

Plagiarism should be avoided for a variety of reasons. For one, it’s dishonest. Put simply, presenting another writer’s work as your own is lying.

Another reason to avoid plagiarism is that you don’t learn anything by plagiarizing another’s work. When your professor assigns an essay, they expect an honest effort from you to engage with the topic you’re covering, apply critical thinking skills, and demonstrate your ability to effectively develop, present, and defend your position. An original essay, flaws and all, shows your professor how you’re progressing in their class and any areas where you might need some extra support.

It’s also disrespectful to the original author. Writing is work, and it can be very challenging work at times. Claiming somebody else’s work as your own strips them of the recognition they deserve for the effort they put into creating it and gives yourself undue credit.

Keep in mind that although this blog post focuses on plagiarism in writing, it’s possible to plagiarize any kind of creative or academic work. Copying another artist’s work is a form of plagiarism, taking credit for another scientist’s research is plagiarism, and copying another app’s code and building your own with it without recognizing the original programmer is plagiarism. Basically, any act of presenting another person’s work as your own is an act of plagiarism. When you profit from an act of plagiarism, it’s known as intellectual property theft. Intellectual property theft is a criminal offense.

7 common types of plagiarism

Plagiarism comes in many forms. These seven types of plagiarism are the most common:

1. Complete plagiarism

This overt type of plagiarism occurs when a writer submits someone else’s work in their own name. Paying somebody to write a paper for you, then handing that paper in with your name on it, is an act of complete plagiarism—as is stealing or “borrowing” someone’s work and submitting it as your own.

An example of complete plagiarism is submitting a research paper for English class that your older sister wrote and submitted when she took the class five years ago.

2. Direct plagiarism

Direct plagiarism is similar to complete plagiarism in that it, too, is the overt passing-off of another writer’s words as your own. The difference between the two is how much of the paper is plagiarized. With complete plagiarism, it’s the entire paper. With direct plagiarism, specific sections or paragraphs are included without crediting (or even acknowledging) the author.

An example of direct plagiarism is dropping a line or two from your source directly into your work without quoting or citing the source.

3. Paraphrasing plagiarism

Paraphrasing plagiarism is what happens when a writer reuses another’s work and changes a few words or phrases. It’s a common type of plagiarism, and many students don’t even realize it’s a form of plagiarism. But if you’re presenting someone else’s original idea in your writing without crediting them, even if you’re presenting it in your own words, it’s plagiarism.

Link to the rest at The Grammarly Blog

While PG thinks plagiarism is a bad thing and no one should engage in the practice, he will disagree with some of the points in the OP.

In the United States, there is a vanishingly small possibility of being criminally prosecuted for plagiarism.

Generally speaking (no legal advice), to prove criminal copyright infringement charges (not exactly the same as plagiarism) in the US, the prosecutor/district attorney must produce evidence of three things the government can prove beyond a reasonable doubt (and, since a criminal case can only be prosecuted by the government, you must persuade an overworked district attorney that your case is more important than the three murders, seven armed robberies and 18 burglary cases sitting on her/his desk when that individual has never heard of criminal copyright infringement before, let alone prosecuted anyone for it):

  1. the author had a valid copyright;
  2. the defendant used, copied, or distributed the material without the author’s permission;
  3. it was done on purpose; and (4) it was done for personal financial gain or business advantage.
  • Felony charges can be filed when 10 copies of a copyrighted work are reproduced or distributed with a retail value of more than $2,500.
  • Misdemeanor charges can be filed with just 1 copy and retail value of $1,000.

(Source of lists – Pate, Johnson & Church)

Plus some types of plagiarism described in the OP likely don’t rise to the level of copyright infringement.

That said, being publicly accused of plagiarism certainly has the potential to ruin an author’s reputation and, if credible, may attract attention online and in traditional media.

As the OP teaches, plagiarism is easily remedied by crediting the original source of whatever you’re writing.

Yes, if someone claims you’ve plagiarized their work and they’re wrong, you can probably sue them back as well.

With respect to using someone else’s idea without using their expression of that idea is not copyright infringement. Copyright protects the expression of ideas, not ideas themselves.

As PG has mentioned before, Boy meets girl, boy loses girl, boy gets girl (or many-gendered variations thereof) is not protected by copyright and he doesn’t think you can plagiarise a plot structure as simple as that or the wide variety of plots typically found in any sort of genre works.

Supreme Court Takes up Andy Warhol’s “Prince Series” Fair Use Circuit Split

From The National Law Review:

The U.S. Supreme Court agreed last week to review the Second Circuit’s decision that Andy Warhol’s well-known “Prince Series” was not a “transformative” fair use of the copyrighted Lynn Goldsmith photograph that Warhol used as source material (see Bracewell’s earlier reporting here).

The Second Circuit’s decision conflicts with the Ninth Circuit, and is potentially at odds with the Supreme Court’s recent ruling in Google v. Oracle, which held that Google made “transformative” fair use of Oracle’s Java software language to build the Android smartphone platform. The Supreme Court upheld the Ninth Circuit’s ruling that the exact copying of computer code could be transformative if it “alter[ed] the copyrighted work ‘with new expression, meaning or message.’” Following Google, the Second Circuit issued a revised opinion in the Prince case that kept its original ruling and distinguished the Google decision as applicable to the “unusual context” of computer code. The high court is expected to settle the circuit split and provide much needed guidance on whether the Google ruling applies outside of the computer programming context.

The controversy arose when the Andy Warhol Foundation sued to fight allegations of copyright infringement from Goldsmith, a photographer who contended that she was not aware that Warhol had used her 1981 photograph of Prince until the music icon’s passing in 2016. A New York district judge ruled that Warhol’s series had transformed Goldsmith’s image from “a vulnerable human being” into an “iconic, larger-than-life figure.” Therefore, Warhol’s use of Goldsmith’s photo did not constitute copyright infringement.

The Second Circuit rejected the district judge’s consideration of the intent and meaning behind the work, and found that the Prince Series was not a “transformative” fair use of the copyrighted photograph because it retained the “essential elements” of the Goldsmith photograph without “significantly adding to or altering” those elements.

Link to the rest at The National Law Review

In the United States, there are both federal courts and state courts. Generally speaking state courts in a given state focus on resolving disputes arising under the statutes of a given state, although some federal questions are occasionally mixed-in with state legal issues.

Federal courts typically deal with matters arising under federal law, although disputes between residents of different states can, under some circumstances, be filed or removed to federal courts, (“diversity jurisdiction”).

The large majority of all legal disputes in the US are resolved in state courts and there are many more judges in state courts than there are in federal courts. Dissolutions of marriage, for example, are virtually all resolved in state courts.

There are a handful of states which have their own limited copyright laws, but the serious copyright action arises under federal copyright law and is those fights happen in federal courts.

United States federal courts are in three tiers

  1. Federal District Courts are found in every state and that’s where disputes governed by federal law originate.
  2. Federal Courts of Appeal fall into 13 circuits populated by about 180 appellate judges. These circuits were established long ago and range from geographically small – the Second Circuit covers the district courts located in Connecticut, New York and Vermont. To the geographically enormous like the Ninth Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon and Washington plus the District Court of the Northern Mariana Islands, a US commonwealth, governed by the US since the end of World War II.
  3. At the top of the Appellate Court hierarchy is the US Supreme Court, consisting of nine justices. As with all other federal judges, the Supreme Court justices are appointed for life.

The Supreme Court is required to hear appeals from a decision of one of the courts of appeal on some types of cases. With respect to other types of cases, the Supreme Court chooses which of the many appeals filed with them that the Court will accept.

The large majority of copyright cases end their lives in the Courts of Appeal. One of the more frequent types of cases the Supreme Court may accept is one where one or more of the 13 Circuit Courts of Appeal has/have issued decisions that conflict with decisions made by one or more of the other Circuit Courts of Appeal.

Conflicting appellate court decisions regarding the Warhol copyright case is likely the principal reason why the Supreme Court accepted it. The Supreme Court doesn’t specify why it accepts an optional appeal, but conflicts between the circuits with respect to something that is a major financial player in the US economy such as copyright protection likely impacted the Court’s decision. Computer code, movies, television and books are only a few of the many major US industries that rely upon copyright issues. Of the top ten largest US companies per Fortune magazine, three – Amazon (2), Apple (3) and Alphabet (AKA Google) (9) generate an enormous portion of their revenues via copyright-protected products and services.

Here are small-form examples of some of the Warhol creations at issue in the above-described request for the Supreme Court to take the case.

Image Credit: The National Law Review

When a vampire not called Dracula bested the copyright system, and what it tells us about derivative works

From IPKat:

Last month marked one hundred years since the first screening in Berlin of the iconic vampire movie—Nosferatu: A Symphony of Horror. And, while the copyright laws were used to try to keep the film from public view, ultimately it failed, to the continuing benefit of cinematic creation. The tale of Nosferatu shows the sometimes-uneasy relationship between copyright protection and the making of derivative works.

Nosferatu was a 1922 adaption (just how much was the subject of the copyright challenge to the movie) of the wildly popular 1897 book by Bram Stoker—Dracula. But the Stoker book did not emerge from a creative tabula rasa. Vampire folklore had been passed down for centuries. Their common denominator was the presence of a creature that feeds on the vital essence (e.g., blood) of the living. The vampire was an “undead” creature which, although deceased, acts as if it is still alive.

The first modern vampire book—The Vampyre, was written by John Polidori in 1819. Its genesis was the same story-telling gathering in the summer 1816 along Lake Geneva that produced “Frankenstein”. This was followed inter alia in 1845-1847 (as a series of pamphlets) by Varney the Vampire written by James Malcolm Rymer and Thomas Peckett Prest, and in 1871 by the book Carmilla written by Sheridan Le Fanu. Thus, when Stoker produced Dracula in 1897, there was an established literary tradition alongside ongoing oral folklore.

The specific sources for Stoker’s book are still much discussed, and they include Transylvanian folklore and history (Vlad the Impaler, a 15th century figure, is often mentioned). Some also refer to claimed structural similarities with the novel by Wilkie Collins, The Woman in White. It is claimed that “[m]any of the book’s characters have entered popular culture as archetypal versions of their characters.” The upshot was that Stoker had plugged into extensive and multiple sources on vampire folklore as well as contributing to on-going archetypes of the genre.

Still, Stoker’s enormous success with the book took the vampire genre to a new level. It is not surprising that creative activity involving vampires, and particularly Dracula-like characters and story line, would be picked up by the nascent silent film industry.

And so it was that Nosferatu, directed by F.W. Murnau and produced by Albin Grau, both German filmmakers, came into being. The report goes that Grau’s inspiration for the movie came from hearing stories about vampires from local farmers in Serbia, this while he was serving in the German army in 1916. It followed with the establishment of a film company and with the hiring of Murnau (as producer) and Henrik Galeen (as screen writer).

It is here that the story, as a copyright matter, become murky. It was one thing to get excited about the possibility of making a vampire movie; it was another when the focus was taking the best of the German expressionistic cinema tradition, then in vogue, to do a movie version of Dracula. Assuming that even if Grau was not familiar with Stoker’s book when he heard the stories from the farmers in Serbia, still his decision to focus on Dracula brought him directly into contact with the copyright universe.

A movie version of a published literary work might require permission from the author, depending on how close the move came to the book. Stoker’s estate (he had died in 1912) gave no such authorization. Undaunted, Grau pressed on, and the movie was produced.

With an eye towards copyright, changes were made, beginning with the name of the movie and the main characters. Also, the plot witnessed various modifications (in the words of one commentator, “Murnau really only borrowed the skeleton of Stoker’s plot.”). For example, the most effective weapon used against the vampire is not a stake, but sunlight; the movie replaces a male band of vampire slayers with the resolute Ellen, who by virtue of self-sacrifice, saves the day; and a swarm of rats accompany the main character on his travels.

That said, arguably the most notable aspect of the movie were its novel cinematic contributions. As described in the February 26th issue of The Economist, —

A century on, “Nosferatu” is still revered for its experimental techniques—shooting on rugged locations as well as in a studio; using stop-motion animation and fast-motion footage—and for the glut of horror-movie conventions it established. The film includes villagers in a tavern who warn the hero not to proceed, and the conceit that vampires are burnt to ash by sunlight. It is the archetypal Dracula film. And yet, its most strikingly modern aspects are those that leave Stoker’s novel behind.

Enter the copyright laws. Florence Stoker, in the name of Stoker’s estate, vigorously pursued Grau and his production company in German court. She prevailed (unwisely for Grau, it seems that the early releases of film still used the name “Dracula”), the court awarded damages (Grau’s company declared bankruptcy), and the court issued a destruction order for all copies of the movie (ripping the movies from their canisters to do so, and having court-mandated agents to track down and destroy copies or negatives). The movie had entered cinema oblivion.

However, there was no longer copyright protection of the book in the U.S. due to a defect in the copyright notice (this was a material issue under the 1909 copyright law then in effect in the US). So, if a copy of the movie could be found, the movie could be safely screened there.

That is what happened, with one copy discovered in the 1940’s and another in the 1950’s. With the book in the public domain, these discoveries enabled circulation of the movie, leading to a spate of other Dracula-based productions, taking their lead from Nosferatu.

To this Kat, the real horror story here is how the copyright system and, in particular, protection regarding the unauthorized production of a derivative work, nearly put a stake in the heart of an exceptional artistic creation.

Link to the rest at IPKat and thanks to C. for the tip.

Business Musings: Copyright Fun Part 3

From Kristine Kathryn Rusch:

Let’s talk money for a minute, because really, copyright and copyright licensing translates into money, if you do it correctly. Copyright is one of those lovely assets that will continue earning for writers if the writers manage the copyright correctly.

A short story can become a novel (more money, different licenses), sell in foreign editions (more money, different licenses), become an audio book (more money, different licenses), be reprinted in anthologies (more money, different licenses), become an hour-long TV special (more money, different licenses), become a TV series (more money, different licenses), become a movie (more money, different licenses), become a video game (more money, different licenses), become a board game…

Well, you get the idea. And the writer really doesn’t have to do any more writing after finishing that short story. Everything I mentioned above is licensing little snippets of copyright. Once writers start understanding that, then they can manage their assets for the rest of their life…and beyond.

. . . .

One thing we all know, because we read books and watch TV, is that lots of money makes people crazy—both in fiction and in real life. Financial expectations, even in the smallest instances, can cause some people to become homicidal when those expectations go awry. That’s the basis for entire subgenres of mystery fiction.

In real life, few people kill over financial matters. Most people go to court, and those court cases drag on for years.

As an example that hits the publishing industry, let’s take a look at the big shocker that happened to the supposed heirs of Scholastic Corporation in June of 2021.

For context, Scholastic Corporation grew from a magazine published in the 1920s to a $1.2 billion dollar corporation with most of its revenue still in publishing. Scholastic has had amazing success over the years. They publish Clifford: The Big Red Dog, Captain Underpants, The Hunger Games, and…oh…some little series called Harry Potter. Their contracts, while not draconian, aren’t really writer-friendly either, so all of that merchandising you see for most of the big series that Scholastic publishes? Yeah, that money mostly goes to Scholastic, not to the writers.

Scholastic has done some great things for literacy and for children’s literacy in particular. It also has worked with schools for more than fifty years to make sure that kids get books to read. I still remember Scholastic Day at my school, and I looked forward to it.

Corporations aren’t really soulless things. People exist behind the corporation. And in this case, Scholastic was a family business. That little magazine was started by Maurice R. Robinson. His son, M. Richard Robinson Junior took over the company as CEO in 1975, and ran it until 2021…when he died suddenly while on a walk with one of his sons.

Richard Robinson was 84 years old, so there’s sudden and then there’s well…not as sudden so much as unexpected right now. He did have a will, however, and rather than leaving his estate and his interest in Scholastic Corporation to his sons, he left everything to his girlfriend.

The will wasn’t new though; it was executed in 2018.

Let’s ignore the family drama part of this—that all of his belongings and such and his personal $100 million fortune went to his girlfriend. The real interest are the Class A voting stocks in Scholastic Corporation. Robinson owned 53% of those stocks, which meant that he had a majority on the board of directors. He could outvote all of them, and now his girlfriend can.

This isn’t as random as it sounds. She is Iole Lucchese, the chair of Scholastic’s board,  as well as executive vice president and president of Scholastic Entertainment. In other words, she knows business and she knows the company very, very, very well.

The adult sons are contesting the will. Neither of them works in the family business. At a quick glance, it doesn’t seem like either of them ever did.

As a number of experts have said in the various articles about this battle, companies are difficult to run when the ownership of the company is under dispute. And these cases can drag on for years.

. . . .

Music copyrights are extremely complicated. Some portions of them are regulated by U.S. law, including royalties and percentages that must be paid to the songwriters by cover artists. Music copyrights fall into several categories, which make my head hurt when I think about managing them, even as a low-level musical artist. I’m not going to try to explain them here.

Just put a pin in complicated.

I’ve done a lot of work with the heirs to writers’ estates. When the superagent Ralph Vicinanza died suddenly and his sister initially handled the estate, a bunch of writer heirs—who had been relying on Ralph to handle all things writing and publishing related—contacted me. I couldn’t say anything bad about Ralph at the time (except to hang up or walk away from my email cursing the contracts he had gotten them all into, contracts that benefited him more than the writers), so I listened.

And realized that these people, who were farmers and professors and stay-at-home parents, had no idea how the publishing industry worked and worse, had no real interest in learning it.

They just wanted Mommy or Daddy’s royalties, which to them were like a stock annuity, an income they could rely on so they could continue living their lives.

Publishing contracts and licensing agreements for novels and short stories are so easy compared to music industry contracts, copyrights, and licensing agreements, the differences are like this: Publishing is arithmetic; music is calculus.

. . . .

Cashing in is a really good idea for older musicians (and even some younger ones: John Legend has sold his copyrights for music he composed between 2004 and 2021.   Legend is 43 years old, and presumably has decades of composing and recording ahead of him. None of those rights in future compositions were sold.

John Legend makes money on more than his music. As Bloomberg helpfully explained,

Dubbed “Music Mogul of the Year” by Variety in 2020, Legend … has gone on to expand into other areas of the entertainment field, in part through the founding of a production studio that’s created shows for Netflix Inc. and ABC. Variety estimates that Legend, born John Roger Stephens before adopting his stage name, takes in between $50 million and $100 million annually from his various enterprises, including LVE, his Napa Valley wine brand. 

Legend made a business transaction. I’ll wager he and his advisors are thinking that the payments for music catalogs will go down by the time he’s Paul Simon’s age. Better to cash in now.

This is how you leverage copyright. What these musicians—these business people—are doing. They’re looking at the value of their complicated music catalogs to them over the next ten to twenty years or the value to others. Given the estate benefits as well, these deals will (with luck) protect their legacy in this way:

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.