Copyright/Intellectual Property

Copyright and Plagiarism in the Age of Memes

20 April 2019

From Plagiarism Today:

Back in March, comedian Miel Bredouw found herself in a very public battle with the site Barstool Sports. According to her, the site has reposted a video she had created two years prior and did so without attribution or permission.

According to Bredouw, she filed a Digital Millennium Copyright Act (DMCA) takedown notice and got the video removed but Barstool Sports responded by first offering her increasing amounts of money to rescind the notice and with a campaign of harassment.

But after Barstool filed a counter-notice to get the video restored, Bredouw went public with her story and highlighted much of the communication that that had been exchanged.

As the story began to get attention, Barstool Sports deleted over 60,000 of its social media posts, purging over 70% of its Twitter history. The move was likely in a bid to head off future DMCA notices, which could have resulted in the account being suspended.

The site also tweeted saying that it was the “old Barstool” and that they were committed to change.

. . . .

However, it doesn’t seem that Barstool Sports fully learned from the incident. Today news is coming out that Barstool Sports has been accused yet again of content theft. This time it was a gif of a blue monster that’s owned by artist Ben Rubin that was used in Barstool Sports’ Snapchat story.

Though Rubin did not face the same harassment that Bredouw did, Rubin was forced to file a DMCA notice to get the clip removed. Barstool admitted to taking the image out of Giphy, where it can still be found.

However, Barstool Sports is far from alone in facing these issues. In fact, they aren’t even the biggest name in meme content theft.

. . . .

All of this begs an interesting question: If Jerry Media and Barstool Sports have been lifting memes and gifs for years, why is it suddenly a big issue now?

Some of it, most likely, is as simple as awareness breeding more awareness. Jerry Media brought much of the scrutiny on itself with its Fyre documentary and that attention gave people the chance to raise old grievances to a new audience and raise the broader issue in the public’s mind.

However, it’s likely more than that.

One reason is that memes have become big business. Back in 2016 FuckJerry was estimated to get around $30,000 per sponsored post. It’s a hefty haul for simply reuploading other people’s creations.

Re-sharing memes, with or without attribution, has traditionally been seen as a strictly non-commercial act. Sure, people might be uploading content without permission, but no dollars were thought to be changing hands. As a result, people largely tolerated it.

An exception to that came in 2015 involving Josh Ostrovsky, better known as the Fat Jew, was caught stealing jokes for his Instagram. Ostrovsky, at the time, was lined up for a show on Comedy Central but those plans were cancelled after the scandal.

But that’s been one of the big changes. In 2015 Ostrovsky was seen as an oddity for being able to parlay his meme-finding skills into a lucrative career, today it’s well-understood that many meme accounts are getting extremely wealthy. This has led to a pushback from the artists who create the original works while toiling in relative obscurity.

In short, the awareness isn’t just of the worst actors. It’s of the industry at large. Creators are aware of how they’re being exploited and are fighting back against it. To that end, the best weapon they have is the DMCA takedown, not only because it’s free, fast and easy to file, but the law obligates hosts to terminate the accounts of users that accumulate too many.

That, ultimately, is why companies like Barstool Sports and Jerry Media fear content creators.

Link to the rest at Plagiarism Today

 

On the Road to a Modern Copyright System

19 April 2019

From The American Bar Association Section of Intellectual Property Law (footnotes omitted):

The roar of support for modernizing the Copyright Office is deafening. Yet, despite those cheers, stakeholders debate the placement of the Office and the role of its head, the Register of Copyrights, in the copyright system. This article presents a narrative of the evolution of the copyright system from 1783 to the early days of the Copyright Office, considering along the way themes such as the requirements for registration, the use of the copyright system to build a national library, and the role of the Register in copyright policy.

. . . .

After the American Revolution but before the creation of a federal copyright system, authors petitioned for private bills to protect their literary works. Then, starting with Connecticut in January 1783, the states began passing generally applicable copyright statutes. To secure these new rights, authors were required to provide information about their works. For instance, in Connecticut, copyright protection was not available until the copyright owner registered with the Connecticut Secretary of State, who was then “directed to enter the same on record.”

It took three years after the Constitution was signed for Congress to pass the nation’s first Copyright Act. Following the states’ example, the 1790 Act required authors to provide information to the government. Unlike today, where that information is provided to the Copyright Office, in 1790, copyright owners delivered their works to the clerks of the various district courts. The clerks, in turn, would create a record of the works and give a copy to the registering party, which then would have to “be published in one or more of the newspapers.” As commentators have noted, “It is doubtful if such publication would be effective beyond the local scene.” In addition to recording their works, copyright owners were required to cause a copy of their works “to be delivered to the Secretary of State . . . to be preserved.”  At this time, “the function of deposit was chiefly to serve as record evidence of the work covered by the copyright claim.”

. . . .

The copyright system would be formally centralized and organized over time, but one of its great innovations occurred due to the informal efforts of two clerks. As discussed above, one of the requirements under the 1790 Act was to send copies of recorded works to the Secretary of State. Yet, there was no requirement that anything be done with those copies other than that they be preserved. As the Patent Office already existed within the State Department, the copyright records were maintained there.

Two brothers working in the Patent Office, William and Seth Elliot, “compiled and published as a private venture an annual list of patents, to which was appended in the years 1822–25 ‘A List of All the Books That Have Been Deposited in the Department of State, for Securing Their Copy Right According to Law.’”  Due to a lack of support, the project eventually was abandoned, and one of the brothers would later charge “that Congress reprinted the patent list without compensation.”  Nevertheless, their contribution would later become the model for the Copyright Office’s recording system.

. . . .

Today, some stakeholders take the position that it is necessary for the copyright system and the Library of Congress to be intertwined. That, however, may not be the case.

The Library of Congress was created in 1800 as a legislative research library in the newly established capital city. Its enacting legislation provided for merely the “purchase of such books as may be necessary for the use of Congress . . . and for fitting up a suitable apartment for containing them and for placing them therein.” The Library’s historian reported that, as late as 1837, “Congress regarded the Library of Congress as only a small legislative library.”

By 1846, the Library of Congress had fierce competition in Washington, D.C. English scientist James Smithson bequeathed $500,000 to the United States for “an establishment for the increase and diffusion of knowledge among men.” After significant debate, Congress established the Smithsonian Institution, and included in the establishing act a requirement that the owner of a work protected by federal copyright law deliver two copies of the work to Washington: one to the “librarian of the Smithsonian Institution,” and one to the “librarian of Congress Library, for the use of the said libraries.”

Although delivery of these copies did not affect whether a work was protected by copyright law, it built a bridge between these national libraries and federal copyright law. This was not a new innovation. Requirements to deposit books and other cultural materials in libraries existed at least as early as 1537 in France, and 1662 in England. As foreign copyright laws developed, sometimes copyright deposits were used to enrich national libraries. Even in the United States, Massachusetts’s state copyright act required copyright owners to provide the “library of the university at Cambridge,” which would become Harvard University, “two printed copies” of their literary works.

Link to the rest at The American Bar Association Section of Intellectual Property Law

As the OP demonstrates, the development of modern copyright law was a long and winding road.

At the present time, copyright may seem to be an area in which the law is generally settled. The Berne Convention, an international copyright treaty first established in 1886 and updated periodically since then. The United States became a party to this agreement in 1989.

Despite the Berne agreement, individual nations still vary in the provisions of both formal copyright laws and the nature and efficacy of their enforcement mechanisms.

The internet has created an enormous number of new copyright issues. See yesterday’s post about Derivative Works, Fair Use and Appropriation Artists.

For example, on a fundamental basis, how should the Instagram posting of a small copy of a painting or photograph, perhaps with some graphics or commentary added, be treated under copyright law? Is such use of material protected by copyright fundamentally different than the creation of a thousand full-sized exact copies of the same painting or photograph by someone who offers them for sale?

Is there a separate standard for Instagram copies that may be likely viewed on a cell phone? Can we articulate a means of calculating the actual damage the Instagram copy causes to the artist who created the original painting or photograph?

Should we consider the potential increase in value of the original and, potentially, other works by the same artist, based upon widespread exposure of a small copy of the work to an audience of millions who follow an Instagram celebrity?

By way of illustration, assuming an indie author commissions the creation of a book cover by a cover artist and purchases all rights to that cover, is the author benefitted or harmed when a copy of the cover is posted on Instagram by a third party? If the cover artist retains the copyright and the author is granted a right to use the cover, is the author benefitted or harmed such a posting?

If the posting is seen by 25 friends of the third party, are the issues different than if the posting is seen by 135 million followers of Kim Kardashian West on Instagram?

Does the posting of the cover gain a different infringement status if the poster adds a comment that says “Great Cover!” or “If stress burned calories, I’d be a supermodel. LOL”

 

When Fair Use Threatens the Derivative Works Right

17 April 2019

Legal Stuff Follows Warning: This is a long post, but if you read it, most of you will understand more about Fair Use and Derivative Works than you do right now.

From The Illusion of More:

Section 106(2) of the U.S. copyright law grants authors the exclusive right to prepare derivative works.  So, the filmmaker who wants to adapt your novel into a movie must obtain your license to prepare a “derivative work” based on said novel (a.k.a the “underlying work”).  If the film creates original visual material, like a creature that might make a cool action figure, the action-figure producer would have to obtain the filmmaker’s license to prepare a derivative work based on that original design. If another party proposes a Netflix series based on minor characters from the novel, that license may remain with you as the original book author; with the filmmaker who made the first adaptation; or be shared depending on certain variables and agreements.

Suffice to say, derivative works are nearly always some use of underlying material in a new context; and  for the purposes of this post, it is fair to summarize the opinion in Brammer as holding that the use of a whole work in a new context from its original purpose was “transformative” under a fair use analysis.  So, because Brammer is an extreme example of a broader effort by certain parties to push the boundaries of fair use, this is what Carlisle was driving at with his comment; and he further noted that the word transform is part of the statutory definition of a derivative work …

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”

So, it is not hard see how a misreading of “transformative” in a fair use analysis can end up validating infringement of the author’s derivative works right.  Moreover, once that “transformative” box is checked, the likelihood of finding fair use increases considerably.  This is reasonable enough when a use is made to produce a truly new expression; but when “transformative” becomes synonymous with “placed in a new context,” the courts are in danger of abrogating the foundation of nearly all licensing protected by the bundle of rights vested in the author.

. . . .

Like fair use, the derivative works right was codified in the 1976 Copyright Act, but its emerging principles can be found in caselaw dating back to at least the mid eighteenth century in both the U.K. and the U.S.  With the development of photography, followed by sound recording, motion pictures, etc., new technologies naturally fostered new ways to use the “heart” of an underlying copyrighted work.  And because law is usually slower than invention—let alone a thorough understanding of a new medium—there are several examples throughout the nineteenth century in which one could argue that copyright law was conveniently interpreted beyond statutory rationale to find infringement.

Scholar Oren Bracha offers such an analysis with respect the case he considers seminal in the development of the derivative works right.  In Kalem Co. v Harper Brothers (1911) the fifteen-minute, silent film adaptation of Ben Hurwas held by Justice Holmes to have infringed the authors’ exclusive right to “dramatize” their works under the statutory amendment of 1891.

There are actually a number of moving parts in to this particular case, but simply put, Bracha contends that Holmes stretched the meaning of “dramatize” in order to encompass the very new medium of of motion pictures and then shoehorned a rationale to find contributory infringement. “The Kalem decision was thus a crucial transitory moment,” he writes.  The decision’s rationale was already based on the new model of copyright, but its legal reasoning still relied on manipulating the doctrines that were rooted in the the traditional print-bound model.”

. . . .

[P]ublishing a photograph on a website hardly requires a major theoretical inquiry in order to compare that conduct to publishing a photograph in a magazine or a brochure.  It’s just a different form of “reproduction” and “display” and should be about ten minutes work for any court.  Likewise, most of the major platforms are just variations on the capacity to display or broadcast creative works through computer networks—a fairly new experience for us as consumers, but not necessarily as groundbreaking from a copyright perspective as the platform owners would have us believe.

Link to the rest at The Illusion of More

You can download the overview of Derivative Works from the US Copyright Office here. Following is an excerpt:

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

On the other hand, in constant tension with derivative works, here’s a definition of Fair Use as codified in the US in 17 U.S. Code § 107 :

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.

Lawyers make a lot of money from gray areas. In the field of intellectual property law, derivative works vs. fair use is a lovely and large patch of gray. The number of examples is constantly growing. Here are short looks at three modern classics:

Transformative Fair Use (Not a Derivative Work)

From Nolo:

The transformative use doctrine is relatively new. In 1994, the U.S. Supreme Court reviewed a case involving a rap group, 2 Live Crew, in the case Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). The band had borrowed the opening musical tag and the words (but not the melody) from the first line of the song “Pretty Woman” (“Oh, pretty woman, walking down the street”). The rest of the lyrics and the music were different.

In a decision that surprised many in the copyright world, the Supreme Court ruled that the borrowing was fair use. Part of the decision was colored by the fact that so little material was borrowed. But the Supreme Court also added a new dimension to the fair use analysis. It focused on one of the four fair use factors, the purpose and character of the use, and emphasized that the most important aspect of the fair use analysis was whether the purpose and character of the use was “transformative.”

In the 2 Live Crew case, the use of the lyrics was transformative because they poked fun at the norms of what was “pretty.” The inquiry “focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is ‘transformative,’ altering the original with new expression, meaning, or message,” Justice Souter wrote in the opinion. “The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” (The rap group had initially sought to pay for the right to use portions of the song but were rebuffed by the publisher, who did not want “Pretty Woman” used in a rap song).

In the decades that have since passed, the standards of “transformative” have continued to evolve. Still, the status of a transformative work seems to be defined by two questions:

  • Has the material taken from the original work been transformed by adding new expression or meaning?
  • Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

Link to the rest at Nolo

Transformative Fair Use (Not a Derivative Work)

From Artist Rights:

In 2000, Patrick Cariou, a professional photographer, published a book of portraits and landscape photographs titled “Yes Rasta.” Richard Prince, a well-known appropriation artist, altered and incorporated a number of Cariou’s photographs into a series of paintings and collages titled “Canal Zone,” which Prince exhibited in 2008 at New York’s Gagosian Gallery. In 2009, Cariou sued Prince, the Gagosian Gallery, Lawrence Gagosian, and Rizzoli International Publications, Inc. in the United States District Court for the Southern District of New York for copyright infringement. In response, the defendants raised the defense of fair use. The district court ruled in favor of Cariou, holding that Prince’s work was not fair use because it did not comment on or critique the original photographs. It ordered the defendants not to infringe upon Cariou’s copyrights and to deliver all of Prince’s unsold “Canal Zone” works to Cariou for him to destroy, sell, or otherwise dispose of.

. . . .

. . . .

On appeal, the Second Circuit reversed the lower court’s ruling and held that most of Prince’s “Canal Zone” works were fair use for several reasons:

In order to be fair use, a secondary use must transform the original by employing it in a different manner or for a different purpose than the original in order to produce a new expression, meaning, or message. A secondary use does not need to comment on or critique the original in order to be transformative as long as it produces a new message. In this case, while Cariou’s book of 9 1/2″ x 12″ black-and-white photographs depicted the serene natural beauty of Rastafarians and their environment, Prince’s work featured enormous collages on canvas that incorporated color and distorted human forms to create a radically different aesthetic. Therefore, even though “Canal Zone” did not comment on or critique “Yes Rasta,” the court still held that it was a transformative fair use of Cariou’s photographs.

Whether or not art is transformative depends on how it may “reasonably be perceived” and not on the artist’s intentions. Even though Prince expressly stated he did not “have a message,” the court still found that most observers would see Prince’s “Canal Zone” as having a radically different purpose and aesthetic than Cariou’s “Yes Rasta” and that this was enough to make the work transformative.

. . . .

[T]he Second Circuit found that there was no evidence that Prince’s transformative use had touched, much less usurped, the market for the original photographs.

Link to the rest at Artist Rights

Infringing Derivative Work

From Design Observer:

Art Rogers refers to himself as “a professional artist and photographer.” His work has often been exhibited, generally in and around his home of Point Reyes, California.

. . . .

In 1980, James Scanlon, whom Rogers had met a few years earlier, called and asked if Rogers would take a picture of the litter of pups his German shepherd had just had. Scanlon later said, “I specifically commissioned Art so that the photograph would have his genius — his special ‘magic’ — and he provided it.” Rogers spent hours finding the right pose for the Scanlons and their pups. He worked to catch just the right light. And afterwards he labored long and hard in the darkroom processing and printing the image. Rogers was just as pleased with the result as the Scanlons were. He said that “Puppies” was “one of my best images. It has a beautiful, creamy soft but crisp light . . . I wanted the puppies to look real cute, and they are cute.” The Scanlons agreed to let Rogers publish the picture in “The Point Reyes Family Album.”

Photograph: Art Rogers, Puppies, 1985. Offset lithograph on coated paper; 4 5/8 x 5 3/4 ins. © Art Rogers

In 1984 Rogers reached an agreement with a card company to sell notecard and postcard versions of “Puppies” and three other pictures. End of story — until the moment in May, 1989, when James Scanlon called to say that a “colorized” version of the photograph had been printed on the front page of the Los Angeles Times’ Sunday calendar section. Rogers quickly discovered that Jeff Koons, an artist he had never heard of, had turned his picture into a sculpture, and that the piece had been included in an exhibition at the Los Angeles County Museum of Art entitled “A Forest of Signs.”

Installation view of Jeff Koons, String of Puppies, 1988, at the Whitney Museum of American Art. Photo by Amaury Laporte, via Flickr.

. . . .

In October, 1989, Rogers files suit against both Koons and his principal gallery, the Sonnabend Gallery. He alleged that the three sculptures titled “String of Puppies” constituted “copies, reproductions or derivative works of ‘Puppies.'” He sought at least $375,000 in compensatory damages, and $2.5 million in punitive damages.

. . . .

Even the most apparently straightforward principles of copyright law seem mired in fudge. For example, what, exactly, is a “copy”? The accepted judicial test for copying is “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” This is known as the “substantial similarity” test. If I draw a mouse that looks just like Mickey Mouse, but I change the color of his spats, “the average lay observer” would instantly recognize that the one was “appropriated from” the other. But what if I put Mickey’s famous ears on a dog? The ears would be appropriated, but the work would not. “Stirring one’s memory of a copyrighted character,” as the Second Circuit Appeals Court has written, “is not the same as appearing to be substantially similar to that character.” Appropriating, by itself, is not copying. “Protection covers the ‘pattern’ of the work,” as one copyright scholar has put it.

. . . .

Then, in 1976, when congress rewrote the copyright statute, the rule finally gained a proper legal pedigree, though it retained its open-ended character. Section 107 of the Copyright Act stipulated that “fair use of a copyrighted work . . . 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 advocates and Talmudists of copyright law have haggled over every word of the statute, as well as its framework. Is fair use meant to be applied according to a relatively predictable logic, or on a case-by-case basis? Which of the four criteria counts the most? In the last major copyright case to reach the Supreme Court, Harper & Row Publishers v. Nation Enterprises, the Court observed that the market-harm factor “is undoubtedly the single most important element of fair use.” But an unsigned article in The Harvard Law Review suggests giving equal weight to the first factor, so that a sufficiently valuable “use” might be held to be non-infringing despite a showing of some market harm. Lawyers for photographers and illustrators — for people like Art Rogers — tend to focus on factors two and three, arguing that substantial takings from copyrighted work should be considered infringing even in the face of a valuable secondary work, or minor economic harm.

. . . .

Ever since the Sixties, artists had been incorporating copyrighted or trademarked images into their works. By the late 1980s there was a sizeable group of artists whose work consisted almost entirely of appropriation. There had been disputes before, but they had always been settled out of court. Andy Warhol had settled with a number of photographers after using their work without permission. In the 1970s photographer Arnold Newman had sued Larry Rivers after Rivers used a Newman photograph of the Statue of Liberty in one of his drawings. David Salle had been sued in 1984 after including in a painting a portion of a drawing that was in turn based on the famous photograph of Jack Ruby shooting Lee Harvey Oswald — a daisy chain of appropriation.

. . . .

What was different about Rogers v. Koons was that Jeff Koons had sold the allegedly infringing works for $375,000. Art — an art based on appropriation — had made Koons rich. The works in his Banality show had sold for over $6 million. Not only did this enormous sum give Art Rogers every incentive to pursue the issue to trial, it also made Koons a wonderfully inviting target.

. . . .

In the course of overseeing the construction of his sculpture, Koons had faxed a series of notes from fine hotels all over Europe to his artisans in Italy. Among his instructions were “work must be just like photo,” “keep as per photo form of puppies,” “the puppies must have variation in fur as per photo,” and so on. In other words, “copy.”

But of course that was only part of the truth. The faxes also show that Koons went to great lengths to persuade his craftsmen to give the puppies a cartoon nose. Like Rogers, they understood copying, but not subversion-through-copying. Koons wrote, “The work should have an intensity in between real life and animation — but do not animate — just make details sharp and at times slightly exaggerated.” Koons’ instructions were in fact a guide to the way that an art form based on appropriation actually works.

The core of Koons’ defense was that the Rogers notecard represented a “completely accurate and literal depiction of two real people holding eight puppies belonging to them.” The card was a fragment of data, a journalistic recording, rather than an expressive work. Yes, Koons had borrowed from the work; but what he had borrowed was information rather than expression. The profound differentness of Koons’ intentions from Rogers’ dictated that he would only mine the original for its raw material. It hadn’t even occurred to him that a copyright issue might be implicated, and he had torn off the backing of the card because it consisted of essentially blank paper, and not because it contained evidence of a legal obligation. Koons’ lawyer, John Koegel, strongly questioned whether a sculpture could ever be considered a copy of a photograph, so great was the transformation required in the change of medium. And even if it was found to be a copy, Loegel contended, the artistic nature of Koons’ work should privilege it as a fair use.

. . . .

Judge Charles Haight of the federal District Court in Manhattan granted summary judgment to the plaintiff. “Rogers’ photograph,” he wrote, “is a creative work.” It was not a “cupcake,” neither was it a literal recording; it was “charming.” Koons’ sculpture was clearly substantially similar to this expressive work. Haight was not impressed by Koons’ claims of fair use. “Notwithstanding its unquestioned status as a work of art,” he noted dryly, “the sculpture is not unsullied by considerations of commerce.” Haight found that the balance tipped toward Rogers on all four fair use factors. Koons was ordered to turn over all “infringing materials,” including a fourth edition of the sculpture, an artist’s proof.

. . . .

Jeff Koons’ appeal was filed June 27, 1991. By this time Koons had managed to get himself in even deeper trouble. Back in April he had sent his artist’s proof of “String of Puppies” to Berlin for an exhibition, in direct violation of the court order requiring the surrender of infringing materials.

. . . .

In his appeal, Koons’ new attorneys, Michael Rips and Frank Wright, made the fair use argument that had not been made before. It was an argument, they conceded, that had never been made before. “For the first time,” the appeal stated, “this Court must attempt to reconcile the fair use doctrine with various widely recognized elements of what is called the post-modern art movement. More so than their traditional forebears, post-modern artists incorporate in their works existing art and commercial images, thereby putting these artists on an apparent collision course with the Copyright statute. Appellants submit that whereas here it is widely recognized that the artist has an identifiable critical purpose for using existing images in his works of art and transforms those images so as to effect that purpose, the fair use doctrine must be flexible enough to encompass and thereby not discourage these new and legitimate art forms.”

. . . .

Koons’ lawyers argued that the sculpture was, in fact, “a direct comment on and criticism of the Rogers notecard,” since the card was “representative of” the kind of mass-produced imagery that is the subject of Koons’ critique. The copying was needed to summon up the mass-produced sensibility embedded in the card, and Koons’ subtle transformations produced the critique. The argument focused not so much on the indispensability of the original as on the validity of the secondary work. If the artist is working in a valid tradition, and has “an identifiable critical purpose for using existing images,” then the fair use doctrine “must be flexible enough” to protect his work.

The battle was now joined at its deepest level. If Rogers won, the kind of art that people like Koons did — possibly the kind of work that artists since Picasso have done — could be disabled. Artists would have to ask permission to appropriate an image, and go elsewhere if permission were denied. Copyright law might replace Jesse Helms as the bugaboo of avant-garde art. But if Jeff Koons won, photographers and illustrators and graphic designers would be helpless before the claims of artistic license. Anyone calling himself an artist could steal their work.

It was a hard issue; but only if you took Koons’ intentions seriously. The Appeals Court did not. “The copying was so deliberate,” the court wrote, “as to suggest that defendants [Koons and Sonnabend] resolved so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist’s work would escape being sullied by an accusation of plagiarism.”

The court found that Koons had copied not only the “idea” of the photograph, but its “charming and unique expression.” (Judges apparently consider charm a special attribute of art.) The fact that Koons had made “small changes here and there” was irrelevant, since only where “the points of dissimilarity exceed those that are similar” can there be a finding of no infringement. And the three-judge panel virtually repeated the language of the Rogers’ brief in concluding that the Koons sculpture was not a parody of or comment on the Rogers photograph, and thus could not be privileged as a fair use. “It is not really the parody flag that appellants are flying under,” the court wrote, “but rather the flag of piracy.”

Link to the rest at Design Observer

As PG mentioned before, Derivative Rights vs. Fair Use may be clear in the descriptions of each legal principle, but applying those conflicting doctrines with respect to concrete works of literary or any other type of art is immensely difficult and courts provide anything but clear guidance on the topic other than in the case of a few black or white casses.

 

 

The University of Rochester has a detailed Fair Use Analysis Checklist, apparently for use by its faculty, students or anyone else. Keeping in mind that use for educational purposes is a factor indicating permissible fair use, this checklist might prove helpful to indie authors at least for highlighting issues that may not be immediately obvious to a non-attorney.

For indie authors who have trekked this far into a lengthy and detailed post, as a general proposition, PG suggests that you write your own books and not plagiarize the work of others. Doing so will avoid a host of problems and disagreeable conversations involving lawyers.

Quotes from others, particularly with appropriate attribution, will be safe in all but the most bizarre situations. However, they should be of a reasonably short length. Placing an opening quote in front of an 80,000-word manuscript written by someone else who is not long dead with a closing quote at the end of the manuscript followed by “Jane Smith wrote.” will be an invitation to a disagreement.

Basic story structures and ideas – Boy/Girl/Etc. meets Girl/Boy, Etc. Boy/Girl/Etc. loses Girl/Boy, Etc., Boy/Girl/Etc. gets Girl/Boy, Etc. are not protectable under copyright law. Copyright protects the expression of an idea, not the idea itself.

Neither are romances between men and women set in the period from 1811 to 1820 when the Prince of Wales ruled as proxy for his father, King George III, as Prince Regent.

Absent outright plagiarism, the area where indie authors may be most at risk for claims of copyright infringement are in the use of covers for which they have not purchased rights from the cover artist. If the cover artist has used images created by others without acquiring appropriate rights, similar headaches may arise.

PG is anything but an expert on the habits and practices of cover artists, but if an artist is creating the cover from scratch, or making copies from paintings created during the Regency era or some other period of enough antiquity that the rights of the original artists have expired due to the passage of time or creating covers from clip art photos from an agency that licenses those photos, the indie author should be protected from claims of copyright infringement for book covers.

As usual, this post is not legal advice and should not be relied on as such. You obtain legal advice by hiring an attorney to provide it, not by reading a blog post.

 

 

‘Blurred Lines’ on Their Minds, Songwriters Create Nervously

15 April 2019

From The New York Times:

It’s not easy to be a songwriter in the pop world these days. Listeners rarely see your name. For anything but a giant hit, royalties from streaming are infinitesimal — and big tech companies seem to want to keep it that way.

And then there’s the shadow of “Blurred Lines.”

Four years after the copyright trial over that No. 1 song — in which Robin Thicke and Pharrell Williams, its primary writers, were ordered to pay more than $5 million for copying Marvin Gaye’s disco-era hit “Got to Give It Up” — the case still looms over the music industry and individual songwriters, who were left to wonder when homage bleeds into plagiarism.

Intellectual property lawyers and music executives interviewed for this article said the case had fueled a rise in copyright claims. In September, Ed Sheeran will go to court to defend “Thinking Out Loud,” a Grammy-winning song that has been accused of mimicking another Gaye classic, “Let’s Get It On.”

. . . .

The aftereffects of the “Blurred Lines” decision — which was upheld on appeal last year — have been felt most acutely by rank-and-file songwriters, who work in obscurity even as their creations propel others to stardom. The ramifications for them have been inescapable, affecting royalty splits, legal and insurance costs, and even how songs are composed.

The songwriter Evan Bogart, who has written for Beyoncé, Rihanna and Madonna, described second-guessing himself in the studio, worried that a melody or lyric might cross a line he can no longer locate.

“I shouldn’t be thinking about legal precedent when I am trying to write a chorus,” Mr. Bogart said.

Most accusations of plagiarism never go before a judge. Instead, they are settled quietly — and often protected with confidentiality agreements — with the results evident only in the fine print of writing credits.

. . . .

Occasionally, an outlying case will force industrywide adjustment. In 1976, for example, songwriters had to reckon with the idea of unintended infringement after George Harrison was found to have “subconsciously” based his first solo hit, “My Sweet Lord,” on a girl-group classic, the Chiffons’ “He’s So Fine.” After the decision, Mr. Harrison wrote in his memoir, he felt a “paranoia about songwriting that had started to build up in me.”

The “Blurred Lines” case, many lawyers and executives say, has become the latest watershed, putting the commonly understood rules of songwriting up for debate.

As songwriters often remark, there are only so many notes in the scale, and influence is essential to the art. Harvey Mason Jr., a songwriter and producer, said the “Blurred Lines” case “unnerved a lot of people writing songs, because a lot of what inspires creative people is the work that has been done before.”

. . . .

At the “Blurred Lines” trial, an eight-person jury heard detailed and esoteric testimony by expert witnesses from both sides about what, if anything, Mr. Thicke and Mr. Williams had copied from “Got to Give It Up.” The Gaye estate contended that specific musical passages had been lifted. Lawyers for Mr. Thicke and Mr. Williams countered that they had simply created a genre piece with a similar groove and feel, the kind of thing that musicians — and copyright lawyers — had long considered fair game.

In a dissenting opinion published when the case was upheld last year, Judge Jacqueline H. Nguyen of the United States Court of Appeals for the Ninth Circuit argued that the verdict allowed the Gaye estate “to accomplish what no one has done before: copyright a musical style.”

Mr. Thicke was also a fickle witness. He had given interviews citing “Got to Give It Up” as inspiration for his song, only to deny it in depositions, saying he had been intoxicated when talking with music journalists.

“I doubt if any more artists will tell Rolling Stone where they got their inspiration,” Tor Erik Hermansen, part of the songwriting and production duo Stargate, said in an interview.

Although the case did not result in any changes to copyright law, it has had a palpable effect. More songwriters are arming themselves with expensive insurance policies. And musicologists — academically trained experts who sometimes consult in copyright cases — are in greater demand.

. . . .

Songwriters now face heightened scrutiny of their work while it is still in progress, as record companies and music publishers sometimes vet new songs for echoes of past works.

“I’ve had a couple experiences where I was writing something and a lawyer and musicologist said, ‘It sounds like this old song, it’s a very active estate, they’re going to come after you,’” said Mr. Mason, who has worked with stars like Whitney Houston and Kelly Clarkson. “I changed a few notes.”

Link to the rest at The New York Times

Tackling Copyright Concerns When Taking Storytime Online

13 April 2019

From School Library Journal:

More and more teachers and librarians want to reach their students and young patrons after hours by recording themselves reading books and posting them online for students to watch from home. They are concerned, however, about copyright law. Is it legal to publicly post these recordings? Can only certain books be recorded and posted? 

SLJ asked American Library Association’s director of public policy and advocacy Carrie Russell to break down the copyright issues, if any, of these digital storytimes.

Storytime is a quintessential service of public and school libraries, right up there with library lending. It instills an invaluable love of reading in children and contributes to early literacy and later success at school. One would be hard pressed to find a person who does not value storytime.

Teachers and librarians asking if storytime is an infringement of copyright law when the reading is recorded and uploaded to YouTube or Facebook are essentially asking if the social benefits of storytime are lost once recorded and delivered by digital means. Common sense would tell us that storytime does not become illegal when it is digital, but the legal concern is real—technically.

In the online environment, copyright law does not say that user and library rights also apply to the digital environment. The copyright law was written in a different time, but Congress was prescient when including fair use which is technology-neutral. It allows us to assess a concern when we are just not sure, even in the digital environment. What we do know is that storytime online or in person is a “public performance,” an exclusive right of the copyright holder. The common fear in the digital environment is that the possibilities of infringement and market replacement are compounded.

. . . .

Because the law and the courts do not explicitly state that physical or digital storytime is lawful—which confounds people who want a definite answer—we must think and make a judgment call. We can make this determination in a structured way by considering the four factors of fair use:

  •  the purpose and character of your use
  •  the nature of the copyrighted work
  •  the amount and substantiality of the portion taken, and
  •  the effect of the use upon the potential market

Making this decision should not be a burden in any sense of the word—it is a measured, reasonable judgment call.

We know that the purpose—the first factor of fair use—is a non-profit, educational and socially beneficial use, which is a good indication that the use is fair. The fourth factor—effect on the market for the work—is tiny, if not nonexistent. Highlighting a book is promotional, even when the performance is on YouTube. One is not displacing a sale or serving as a substitute to the work—even I would argue—if the work is available for purchase in audiobook form. An audiobook is not the same as storytime.

The second and third factors of fair use assess the level of creativity of the work and the amount used, respectively. Storytime uses highly creative works, even newly published works, read in their entirety. Storytime requires that one read aloud from an entire children’s book. Storytime will always fail on the second and third factors. In this situation, one can still make the judgment that storytime is lawful by considering the first and fourth factor only. In every fair-use analysis, one or two of the factors will weigh more heavily on the others. They are rarely equal in importance.

Link to the rest at School Library Journal

PG says that any copyright owner who sues a school or library over storytime deserves substantial social and reputational penalties in addition to anything a court might do.

PG would be interested to hear of any disputes that arise on this topic.

Do We Really Own Our Digital Possessions?

12 April 2019

From The Conversation:

Microsoft has announced that it will close the books category of its digital store. While other software and apps will still be available via the virtual shop front, and on purchasers’ consoles and devices, the closure of the eBook store takes with it customers’ eBook libraries. Any digital books bought through the service – even those bought many years ago – will no longer be readable after July 2019. While the company has promised to provide a full refund for all eBook purchases, this decision raises important questions of ownership.

Digital products such as eBooks and digital music are often seen to liberate consumers from the burdens of ownership. Some academics have heralded the “age of access”, where ownership is no longer important to consumers and will soon become irrelevant.

Recent years have seen the emergence of an array of access-based models in the digital realm. For Spotify and Netflix users, owning films and music has become unimportant as these subscription based services provide greater convenience and increased choice. But while these platforms present themselves clearly as services, with the consumer under no illusion of ownership, for many digital goods this is not the case. So to what extent do we own the digital possessions that we “buy”?

. . . .

The popularity of access-based consumption has obscured the rise of a range of fragmented ownership configurations in the digital realm. These provide the customer with an illusion of ownership while restricting their ownership rights. Companies such as Microsoft and Apple present consumers with the option to “buy” digital products such as eBooks. Consumers often make the understandable assumption that they will have full ownership rights over the products that they pay for, just as they have full ownership rights over the physical books that they buy from their local bookstore.

. . . .

However, many of these products are subject to end user licence agreements which set out a more complex distribution of ownership rights. These long legal agreements are rarely read by consumers when it comes to products and services online. And even if they do read them, they are unlikely to fully understand the terms.

When purchasing eBooks, the consumer often actually purchases a non-transferable licence to consume the eBook in restricted ways. For instance, they may not be permitted to pass the eBook on to a friend once they have finished reading, as they might do with a physical book. In addition, as we have seen in the case of Microsoft, the company retains the right to revoke access at a later date. These restrictions on consumer ownership are often encoded into digital goods themselves as automated forms of enforcement, meaning that access can be easily withdrawn or modified by the company.

. . . .

My research has found that many consumers do not consider these possibilities, because they make sense of their digital possessions based on their previous experiences of possessing tangible, physical objects. If our local bookstore closed down, the owner wouldn’t knock on our door demanding to remove previously purchased books from our shelves. So we do not anticipate this scenario in the context of our eBooks. Yet the digital realm presents new threats to ownership that our physical possessions haven’t prepared us for.

Consumers need to become more sensitised to the restrictions on digital ownership. They must be made aware that the “full ownership” they have experienced over most of their physical possessions cannot be taken for granted when purchasing digital products. However, companies also have a responsibility to make these fragmented ownership forms more transparent.

Link to the rest at The Conversation

PG suggests that there are not gray areas with ebooks like the OP implies.

In fact, no reader owns an ebook. They own a license to an ebook that describes their rights with respect to the ebook.

If the license says it can be terminated for any of a variety of reasons and such termination occurs, the reader will no longer have access to the book.

The legal difference between an ebook and a physical book, both of which are protected by copyright is the First Sale Doctrine. Per the United States Department of Justice:

The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copySee 17 U.S.C. § 109(a) & (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction.

Further, the privileges created by the first sale principle do not “extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.”

. . . .

Most computer software is distributed through the use of licensing agreements. Under this distribution system, the copyright holder remains the “owner” of all distributed copies. For this reason, alleged infringers should not be able to establish that any copies of these works have been the subject of a first sale.

Link to the rest at US Department of Justice

Here’s a bit more on the First Sale Doctrine from Nolo:

Every day, millions of consumers make use of the first sale doctrine. This copyright doctrine permits the purchaser of a legal copy of a copyrighted work to treat that copy in any way he or she desires, as long as the copyright owner’s exclusive copyright rights are not infringed. This means the copy can be destroyed, sold, given away, or rented.

A common example is the rental of movie videos, where the store purchasing the disks is entitled to rent them out without paying any royalties to the owner of the copyright rights in the movie. The term “first-sale doctrine” comes from the fact that the copyright owner maintains control over a specific copy only until it is first sold.

. . . .

It is important to remember that the first sale doctrine is very narrow. It applies only to a specific copy. No rights are granted as to the underlying work.

For example, except as provided in the Copyright Act of 1976, the owner cannot reproduce, adapt, publish, or perform the work without the authorization of the author. All that the consumer can do is to dispose of the particular copy that has been purchased. For example, the first sale doctrine does not permit the owner of a book of copyrighted art prints to separate the prints, mount them in frames, and sell them separately.

Moreover, the first sale doctrine applies only to the owner of the work, not to a person who possesses the property but does not own it. For example, imagine that a store purchases a lawfully made copy of the movie, Gone With the Wind. As the owner of that copy, the store can rent it to an individual. However, the person renting it cannot rent the copy to someone else. Only the owner of the copy has such rights.

. . . .

There are exceptions to the first sale doctrine. As a result of lobbying by the computer and music industries, the rental of computer programs and sound recordings is prohibited. The sound recording exception is limited to musical works; it does not extend to audiobooks.

It is also not permissible under the first sale doctrine to destroy a fine art or photographic work that meets the requirements of the Visual Artists Rights Act (for example, signed and numbered photographs created in limited editions of 200 or fewer copies). The public policy rationale for this is obvious; as a society, we do not want to allow the destruction of original works of art under a narrow copyright provision.

. . . .

In 2013, the U.S. Supreme Court ruled that there are no geographic limitations on the first sale doctrine. In that case, known as Kirtsaeng v. John Wiley & Sons, Inc., a Thai student came to America to study, and engaged in a business arrangement with his family in Thailand. They would send him the books purchased in Thailand for a low price, and he would resell them in the U.S. market, which charged higher prices.

The student expanded the business and eventually earned $100,000 in profit. U.S. publishers sued the student, arguing that the first sale doctrine did not apply to “gray market goods,” which involve lawfully made goods that were imported into (but not made in) the United States.

The Supreme Court disagreed and ruled for the student, stating that as long as the copies were lawfully made under the direction of the copyright holder, there was no requirement that the books be manufactured in the United States. In other words, the student could use the first sale doctrine to do what he wished with his own copy of the book, even though he did not own the copyright.

Link to the rest at Nolo

Nolo has more about the Visual Artists Rights Act, which limits the rights of an owner of a physical art object in ways the rights of the owner of a printed book are not limited.

Certain types of artworks receive more rights than are normally granted under copyright law. The federal government has created a statute—the federal Visual Artists Rights Act (“VARA”)—that grants rights affecting the resale and destruction of artworks. Only some artworks receive protection under VARA—paintings, drawings, prints, photographs, or sculptures, in a single copy or limited edition of 200 copies or fewer (that are signed and consecutively numbered).

. . . .

The VARA statute protects you, as the creator of a work of visual art, from “intentional distortion, mutilation, or other modification of that work that would be prejudicial to your honor or reputation.”

This is the most powerful right granted under the VARA provisions. For example, if a collector buys a limited edition silkscreen from you (fewer than 200 prints were made), the collector cannot destroy it without your permission. If the work is destroyed, you can sue under VARA and recover damages, provided you can prove that your reputation was damaged.

The rule regarding destruction does not apply if:

  • the work was created prior to enactment of the VARA provisions on December 1, 1990
  • you specifically waived the rights in a written statement, or
  • the destruction or modification results from the passage of time or because of the materials used to construct the work. For example, certain works such as ice sculptures and sand sculptures by their nature self-destruct, and the owner would have no obligation to affirmatively prevent such destruction.

. . . .

If artwork is created as work made for hire, there are no VARA rights. That is, although normal copyright law applies to the work, neither the artist nor the person commissioning the work can claim rights under VARA. For example, if you hire an artist to paint a mural on your wall, you have the right to later destroy or repaint that wall, since the original mural was a work-for-hire.

Link to the rest at Nolo

For those who have noted the manner in which limited edition duplicate artworks are marked, e.g., “5/75,” one of the reasons for this mark is to give a purchaser notice that the work may be subject to VARA restrictions. Another is, of course, to communicate the rarity of a single piece of art – there are only 75 of this particular piece in the world.

Generally, a limited edition of a better quality than other duplicates of an artwork. Typically, the limited edition is made directly from the original and it is customary for the artist to supervise the creation of limited editions and to sign and number each one to help assure each copy’s authenticity and fidelity to the original.

The personal supervision of the artist usually involves the creation of one or more artist’s and/or printer’s proofs. High end printers intended for the creation of high-quality artistic duplicates can be adjusted to make the duplicates more accurate copies of the original artwork, which is typically scanned into a large digital file with sophisticated digital scanners.

Once the artist is satisfied with the quality of an artist’s proof, a production file is created and the settings of the printing press are locked into place to assure each limited edition print is faithful to the printer’s proof. After the production of all limited edition copies, typically, the production file and proofing files are destroyed so no further copies may be made.

Under common artistic replication standards, the creation of a limited edition does not preclude the artist from authorizing other copies of the original artwork in the form of mass-produced offset prints, giclées and canvas transfers which will be less accurate copies than a limited edition is.

 

 

‘Mockingbird’ Spat Shows Benefits of Light Touch on Copyrights

8 April 2019

From Bloomberg:

Winning a copyright battle can mean losing a public relations war.

Broadway producer Scott Rudin endured a wave of criticism after sending letters to at least eight community theater groups that had planned to perform the play “To Kill a Mockingbird” with an older script than the one used in the Broadway production. That prompted a #BoycottRudinPlays hashtag on Twitter with comments such as “This is just greed.” Rudin eventually backtracked, and allowed the theaters to stage the play using his production’s script.

The episode shows how heavy-handed copyright enforcement tactics can backfire in the age of social media, intellectual property attorneys said. Trademark and copyright owners increasingly must weigh public perception when considering how to enforce their rights. A lighter touch can put an alleged infringer on notice while avoiding bad publicity, and even produce some good publicity through humor and wit, the attorneys said.

“Clever companies and brand owners have come to realize it’s a way to come across as the good guy while still getting their messages out about their property,” Richard Rochford, a trademark attorney at Haynes and Boone LLP, said. He said Rudin and his team are “trying to be graceful now, but they’ve already done P.R. damage. Had they done this at the outset, it would be pretty good.”

. . . .

Rudin secured rights to produce a new version of “Mockingbird” in 2015. It premiered on Broadway in December, after Rudin settled a lawsuit from author Harper Lee’s estate that argued the new script written by Aaron Sorkin strayed too far from the novel.

Local theaters have licensed playwright Christopher Sergel’s adaptation of the book for decades. But Sergel’s company’s 1969 agreement with Lee barred production within 25 miles of a city with more than 150,000 people as of 1960 during the run of any “first-class” production. Rudin claimed Dramatic Publishing Co, now run by Sergel’s grandson, licensed the old script to the theaters without the right to do so.

The theater community blasted Rudin over his attorney’s threats to seek $150,000 in statutory damages if the non-profit theaters performed the play, and called for a boycott of the Broadway production. Some groups accepted Rudin’s offer to use Sorkin’s script; others were too far along in preparation and had to cancel performances.

Mugford Street Players in Marblehead, Massachusetts, rescheduled its opening four weeks later and outside the 25-mile radius from Boston after having to cancel on about a week’s notice. Creative director John Fogle acknowledged Dramatic Publishing licensed rights it didn’t have, but said he didn’t see why Rudin needed to shut down misled groups.

“It wouldn’t have damaged their property one iota to have us perform this show in Marblehead,” Fogle said.

. . . .

Humor and grace in a cease-and-desist letter can avoid any hurt feelings, copyright lawyers say. As an example, they cited a letter that Netflix Inc. sent to Chicago man who set up a “pop-up bar” with furnishings and drinks based on its hit science-fiction series “Stranger Things.”

The 2017 letter referred the show’s “Upside Down” alternate dimension and 1980s pre-teen vernacular in asking the bar not to extend its use of copyrighted elements beyond the bar’s planned six-week run, and not to do it again without permission. Netflix stressed its affection for the show’s fans, but said “the demogorgon is not always as forgiving,” referring to the demon prince in “Dungeons and Dragons” after which characters in the show named its monster.

“So please don’t make us call your mom,” Netflix’s letter concluded.

Link to the rest at Bloomberg

Is “Machine Learning” Copying or Reading?

8 April 2019

From The Illusion of More:

I recently attended a round-table discussion on the subject of artificial intelligence and copyright.  The first of several engaging topics I thought warranted a post was the question of “machine learning”

. . . .

When you read a book, even if we might say, by way of analogy, that you are “copying” the content of that book onto your brain, this clearly does not infringe §106(1) of the copyright law proscribing unauthorized copying.  Since the author naturally hopes that you will read her book, such a prohibition would be absurd, even if you had an eidetic memory and could, if prompted, recite the entire work verbatim.  But if you used that gift to type from memory the entire book and made that document available, you would then violate more than one statute under the copyright law.

So, the question raised in regard to “machine learning” is whether the computer scientist who wishes to feed a corpus of books—say the anthology of American literature—into an AI should be required to obtain licenses for the works still under copyright.  Thus, the first analysis is whether the act of “copying” can be said to occur in this circumstance any more than it would be for the human reader who consumes the same body of literature.

It strikes me that if what the AI does in this case is ingest the corpus of books and almost instantly deconstructs those works by synthesizing them through a neural network, then the computer scientist has a pretty solid argument that no copying has taken place.   If the machine does not retain intact copies of works—or even large sections of works—-with the purpose of making those intact copies available to the human market, then this “machine reading” process is arguably analogous to the human whose reading does not infringe §106(1) of the copyright law.

That said, intent of the computer scientist may be a significant factor.  For instance, if the training of the AI will have a commercial purpose, this may suggest a requirement to license the works under copyright.  But intent can be very tricky on the leading edge of science because it is neither realistic, nor even desirable, to insist that every researcher know exactly where his experiments will lead.  This would nullify the process of discovery whence many great achievements have been made; hence, discovery is justification itself, and I suspect the tech companies would appeal to this rationale in regard to “machine learning.”

If the computer scientist’s goal is to see whether he can get his AI to “learn” about the American experience through literature, but he does not have a particular product or service in mind at the outset, it seems that copyright owners would be on fairly shaky ground to enjoin his use of the books.  As long as nothing that comes out the other end looks like any of the products that went in, it strikes me that this experiment exists beyond the statutory framework of copyright law.

. . . .

On the other hand, the moment Google or Facebook did announce that new product, rightsholders could justifiably complain that a massive, highly-profitable corporation has used potentially billions of dollars worth of material without paying for any of it.  As one scholar at the round-table noted, tech companies may not use raw silicon for free, so why should they get to exploit millions of creative works for free, no matter what they’re turning that data into?

Link to the rest at The Illusion of More

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