Instagram Memers Are Unionizing

19 April 2019

From The Atlantic:

Instagram memers have had enough.

They generate the engagement that helps keep Instagram growing—but, they argue, the multibillion-dollar platform doesn’t pay them for their work, or give them any control. So they’re fighting back. And before you write off IG Meme Union Local 69-420 as a joke, the organizers of the collective would like you to know that they are very serious.

“Solidarity actions with memers. Memers of the world unite,” the Instagram page for the union reads, encouraging followers to “seize the memes of production.”

The IG Meme Union will probably never be recognized by the National Labor Relations Board, but organizers say it can still act as a union for all intents and purposes. “We’re calling it a union and doing union-organizing tactics,” Paul Praindo, a representative of the organizing committee, told me. “We stand in firm support of others who are working to organize anti-labor industries. We think these movements mark the beginning of a labor renaissance.” Some other “unions” function this way: The Freelancers Union, for instance, doesn’t have a formal management structure to negotiate with, but does advocate collectively for independent workers.

Similarly, the IG Meme Union, which is currently taking applications through an online form, hopes to negotiate better working conditions for memers who say they have been exploited by Instagram and other tech platforms for too long. “People are doing a lot of work, doing it for free or little compensation, or not recognized for the work they’re doing,” Praindo said. “All these people are bringing revenue to Instagram, producing this major profit margin for this

. . . .

“We as content creators want to have worker protections,” Praindo said. “Even if you’re producing funny pictures of Shrek, that should not determine whether you’re taken seriously as a creator or your livelihood is imperiled at the drop of a hat … We are a meme union; the whole point of it is to work for protections for other content creators.”

. . . .

A few things the IG Meme Union wants: a more open and transparent appeals process for account bans; a direct line of support with Instagram, or a dedicated liaison to the meme community; and a better way to ensure that original content isn’t monetized by someone else. “Having a public and clear appeal process is a big thing,” Praindo said. “People appeal now and get turned down, and they won’t know why.

. . . .

Memers represent a burgeoning sector of the labor force that currently has no job security or formal protection. “If you’re spending all your time as a Twitch broadcaster or creating memes, that is work,” says John Ahlquist, an associate professor at the University of San Diego’s School of Global Policy and Strategy, who has done research on the changing nature of work. “People that are trying to earn a living on these platforms are recognizing how vulnerable they are on an individual basis with respect to the platform, and so they’re turning to this tried-and-true model of collective action.”

Link to the rest at The Atlantic

PG is not an expert on labor law, but he wonders if there is any real solution residing in a labor union when so many people are willing to post to Instagram with no financial compensation.

If the Memers want to organize, offering to their collective talents elsewhere (PG doesn’t know enough about Instagram’s competitors – if any, to point out a possible alternative) or setting up a competing meme/image site (he understands you don’t recreate Instagram overnight) might be a more effective response.

Another question popped into PG’s mind – Is Patreon a possibility for Instagram stars?

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”


Tokenism in Books Led a Father to Self-Publish Stories for His Mixed-Race Sons.

18 April 2019

From The BBC:

Suhmayah Banda, from Penarth, Vale of Glamorgan, said he wanted to write stories that “would allow my kids to see characters that look like them”.

A report for the Book Trust said one third of black, Asian, and minority ethnic (BAME) authors and illustrators in the UK self-publish.

That compares with 11% of white authors and illustrators.

“As a family we read a lot together, and there are so many varied characters out there – animals, monsters, cars, firemen,” said Mr Banda, who is originally from Cameroon.

“But when it comes to ethnically diverse, in my case black or mixed characters, there is just not that much choice out there.”

A study by the Centre for Literacy in Primary Education in 2017 found only 1% of children’s books published that year in the UK had a BAME main character, and only 4% included BAME background characters.

The 2011 census found 14% of people in England and Wales were non-white. In Wales the figure was 4.5%.

. . . .

[O]ne of the catalysts for his first story was a comment Tancho made after reading a book in school.

“He came home from school one day and told me that people in Africa don’t have water in their houses. And as an African, and a Cameroonian specifically, I was a little surprised,” he said.

“I was like, ‘Really? All of Africa?’…there are a lot of people who have and don’t have things everywhere in the world, so I didn’t like that generalisation.

“Books are the first exposure a lot of kids and adults have to the wider world. And if those books are always written to the same narrative, in many cases misleading or wrong narratives, then it is dangerous on a lot of levels.

“And I wanted to expose my kids, and hopefully others, to a lot more perspectives.”

. . . .

Mr Banda, whose day-to-day job is in IT, is sceptical about efforts in the publishing industry to improve representation.

“They have a lot of competitions going on about promoting diversity. I find them flawed at best….

“You end up having a black or ethnically diverse character put in a story that doesn’t really reflect their reality. A lot of the time that is just tokenism,” he added.

. . . .

Aimee Felone, who co-founded publishing company Knights Of, shares Mr Banda’s frustration with much of the sector.

The company’s starting point was to hire “as widely and diversely as possible to make sure the books we publish give windows into as many worlds as possible”.

It has just published its first novel, a children’s murder mystery where the detectives are two young black sisters in London and, in October, they will be publishing a story about a character who is hard of hearing.

They purposefully chose a deaf editor to work on it, to make sure the story was “genuine and authentic”.

. . . .

In her view, the approach of the industry to BAME stories often grouped together non-white people from different backgrounds.

“I think what is missed is that there are different challenges that are faced within each community,” she said.

“We’re not looking at representations of Asian women, Chinese women [for example], we’re just putting everyone together in one box [and saying] ‘Oh look we have a BAME character’.

“What does that actually mean? Whose story are we actually telling?”

Link to the rest at The BBC

PG is skeptical that traditional publishing can move beyond tokenism given the background of 99% of its employees ranging from unpaid interns to the CEO. Of course, traditional publishing also deals with traditional book stores which have the same problems.

PG suggests the possibility that indie authors who self-publish may be the only avenue by which authentic voices can actually reach readers.

Amazon’s E-Commerce Adventure in China Proved Too Much of a Jungle

18 April 2019

From The Wall Street Journal: Inc. is checking out of China’s fiercely competitive domestic e-commerce market.

The company told sellers on Thursday that it will no longer operate its third-party online marketplace or provide seller services on its Chinese website,, beginning July 18. As a result, domestic companies will no longer be able to sell products to Chinese consumers on its e-commerce platform.

The decision marks an end to a long struggle by America’s e-commerce giants in the Chinese market. The firms entered the Chinese market with great fanfare in the early 2000s only to wither in the face of competition from China’s faster-moving internet titans.

. . . .

In a statement, Amazon said it remains committed to China through its global stores, Kindle businesses and its web services.

Amazon China’s president will leave to take on another role within the company, the company confirmed. The China consumer business team will report directly into the company’s global team.

. . . .

When Amazon first entered China in 2004 with the purchase of, it was the largest online vendor for books, music and video there. Most Chinese consumers were using cash-on-delivery as their top form of payment. Today, Amazon China chiefly caters to customers looking for imported international goods like cosmetics and milk powder and is a minuscule player in the booming Chinese e-commerce market.

Amazon China commanded just 6% of gross merchandise volume in the niche cross-border e-commerce market in the fourth quarter of 2018, versus NetEase Kaola’s 25% share and the 32% held by Alibaba Group Holding Ltd.’s Tmall International, according to Nomura Securities Co.

“Everyone has merged with someone,” said Chris Reitermann, chief executive for Asia and Greater China at Ogilvy, which advises Alibaba. “It became clear that as a Western internet company you wouldn’t be able to succeed at scale without a Chinese partner.”

Link to the rest at The Wall Street Journal 

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.



Religions Through the Ages

17 April 2019

The fact that religions through the ages have spoken in images, parables, and paradoxes means simply that there are no other ways of grasping the reality to which they refer. But that does not mean that it is not a genuine reality. And splitting this reality into an objective and a subjective side won’t get us very far.

~ Niels Bohr

What I Learned from Writing a Data Science Article Every Week for a Year

17 April 2019

On the surface, this article seems to have nothing to do with the types of writing most indie authors pursue, indie publishing, etc., but PG thinks the mental attitude about learning new ways of thinking and different approaches applies equally to tasks involved in being an indie author.

SF authors will almost certainly know that data science and the creation of artificial intelligence are intimately intertwined.

From Towards Data Science:

There ought to be a law limiting people to one use of the term “life-changing” to describe a life event. Had a life-changing cup of coffee this morning? Well, hope it was good because that’s the one use you get! If this legislation came to pass, then I would use my allotment on my decision to write about data science. This writing has led directly to 2 data science jobs, altered my career plans, moved me across the country, and ultimately made me more satisfied than when I was a miserable mechanical engineering university student.

In 2018, I made a commitment to write on data science and published at least one article per week for a total of 98 posts. It was a year of change for me: a college graduation, 4 jobs, 5 different cities, but the one constant was data science writing. As a culture, we are obsessed by streaks and convinced those who complete them must have gained profound knowledge. Unlike other infatuations, this one may make sense: to do something consistently for an extended period of time, whether that is coding, writing, or staying married, requires impressive commitment. Doing a new thing is easy because our brains crave novelty, but doing the same task over and over once the newness has worn off requires a different level of devotion. Now, to continue the grand tradition of streak completers writing about the wisdom they gained, I’ll describe the lessons learned in “The Year of Data Science Writing.”

The five takeaways from a year of weekly data science writing are:

  1. You can learn everything you need to know to be successful in data science without formal instruction
  2. Data science is driven by curiosity
  3. Consistency is the most critical factor for improvement in any pursuit
  4. Data science is empirical: instead of relying on proven best methods, you have to experiment to figure out what works
  5. Writing about data science — or anything —is a mutually beneficial relationship as it benefits you and the entire community

. . . .

1. Everything in data science can be learned without going to school

Mechanical engineering, which I unfortunately studied in college, has to be taught at an institution. It’s just not possible for an individual (at least one with normal resources) to gather the equipment— labs, prototyping machines, wind tunnels, manufacturing shop — needed for a “mech-e” education. Fortunately, data science is not similarly constrained: no topic in the field, no matter how state-of-the-art, is off-limits to anyone in the world with an Internet connection and a willingness to learn.

While I did take a few useful stats classes in college (note: everything in these classes is covered by the free Introduction to Statistical Learning) the data science courses at my college were woefully out-of-date. We were taught tools and techniques that fell out of favor years ago. In several cases, I showed the professor evidence of this only to be told: “well I’m going to teach what I know because it worked for me.” What’s more, these classes were geared toward research which means writing inefficient, messy code that runs once to get results for a paper. Nothing was ever mentioned about writing code for production: things like unit tests, reusable functions, or even code standards.

Instead of relying on college classes, I taught myself (and continue learning) data science/machine learning from books and online courses/articles. I select resources that teach by example and focus on what is actually used in data science in practice today. (By these standards, the best classes are from Udacity and the best book is Hands-On Machine Learning with Scikit-Learn and TensorFlow by Aurelien Geron.) You don’t have to pay for material: fast.aihas the most cutting-edge course available on deep learning for free; Kagglegives you opportunities to work on real-world data and learn from thousands of data scientists; and, books like The Python Data Science Handbook don’t cost anything! (Towards Data Science is also useful).

. . . .

Few people know what they are talking about when it comes to data science, and if you’ve studied the most recent material available online, you’ll be ahead of most everyone else. In fact, I would argue you are better off learning from online sources/courses, which are constantly updated, than from educational institutions that revise curriculum at most once per year.

. . . .

Curiosity is also helpful when you’re actually doing data science: exploratory data analysis is driven by the goal of finding interesting patterns in the data. On a somewhat related tangent, Richard Feynman, arguably the smartest man of the 20th century, might be the best proponent for the benefits of a curious mindset. A theoretical physicist, he was as well known for picking up skills (like safe-cracking) or playing practical jokes as he is for his work on quantum mechanics. According to his works, this curiosity was integral to his work as a scientist and made his life more enjoyable.

Feynman was driven not by a desire for glory or wealth, but because he genuinely wanted to figure things out! This is the same attitude I adopt in my data science projects: I’m doing these projects not because they are a required chore, but because I want to find answers to hard problems hidden within data. This curiosity-based attitude also makes my job enjoyable: every time I get to do some data analysis, I approach it as a satisfying task.

Link to the rest at Towards Data Science

Until he read the OP, PG didn’t know about Project Jupyter and Jupyter Notebooks, which are another cool online thing.

Heike Geissler’s Grim Account of the Amazon Workplace

17 April 2019

From The Literary Hub:

Midway through Seasonal Associate, Heike Geissler describes a day off from the Amazon warehouse. It is spent at the Leipzig Christmas market, drinking mulled wine, and then at the fine art museum, strolling through the galleries, looking at paintings, and taking her first deep breath since getting hired for the holiday rush.

I’m thinking of this rare, tranquil moment in her book as Geissler and I visit the Guggenheim Museum on a brisk March day. I find her waiting out front, wearing a wool hat low over her face, angular and framed by blunt brown bangs. We shed our coats to bask in the warmth of Hilma af Klint’s lush, floral paintings, to take a photo together in the reflective surface of a Robert Mapplethorpe assemblage. In Seasonal Associate, art and literature serve as scarce reprieves from the dull work of the warehouse—unpacking, scanning, counting, imputing—a way to restore the creative potential “buried behind your fatigue.” Geissler knows this struggle first hand.

“When I was working at Amazon, there was no time for reading. I was too exhausted,” she told me over an impromptu lunch at The New Amity Restaurant. We split the coleslaw and pickles that came with my BLT and drank many cups of coffee.

. . . .

“There are plenty of nonfiction books written by journalists who embed themselves in bad industrial situations for a limited time, but no one has given a subjective, and literary account of 21st-century flex-time industrial work,” wrote Chris Kraus, writer and co-editor of Semiotext(e), over email.

Geissler, the daughter of a postmistress and a steel worker, grew up in East Germany and now lives in Leipzig, where, in 2010, she worked as a seasonal associate. Eight years earlier, at the age of 25, she won the prestigious Alfred Doblin prize for her debut novel, Rosa, which was met with wide critical acclaim. Less so her metafictional second book, on the difficulty of writing a second book. She then published a children’s book with an illustrator friend, relishing the freedom to experiment and collaborate. But she didn’t interview at Amazon looking for a good story.

“I needed money,” she told the audience at her New York Goethe Institute event. The mother of a young son (she now has two), writing and translating were not paying the bills.

Geissler did, however, take notes on her daily experiences in the warehouse, later assembling them into a manuscript. It was rejected by five German publishers before she decided to pull it. Instead, she re-edited and recorded herself reading several chapters out loud and put the audio files on her website. She wanted to speak to the listener directly, so she supplemented the first-person narration with a second person address.

. . . .

This means that reading Seasonal Associate feels disconcertingly immersive. You, the reader, are the one experiencing the monotony of training day, the draft that comes in from the loading dock, the flu that inevitably develops, the relief of the sick day, and then the dread of returning to work. Meanwhile the first personal narrator serves as a guide to your experience at the warehouse, the version of Geissler who has already experienced everything you are about to: the casual misogyny of the managers, the hands cut up and then wrapped, the half-hearted attempts to spend time with family after a long shift.

. . . .

At the warehouse she is spoken to like a child and treated like a “tool gifted with a voice no one wants to hear.” Everything that makes her an individual is an annoyance to her employer, who will not hesitate to automate her work as soon as it becomes cost-effective.

“There’s this whole narrative of your working life, the narrative of suffering,” Geissler said. “I’m always curious about how people live, what they have to do for money and we can change or improve that. The struggle must be to strive for better working conditions, for the best working conditions.”

. . . .

Amazon has embedded itself in consumer culture on both sides of the Atlantic. I think of the products that pass through Seasonal Associate: punching bags that come in multipart packaging, hair dryers, novelty mugs, and of course, books, thousands of books stacked up, health books, vampire books, and, in ironic twist of events, books of a writer Geissler once knew, a man who supports his family with his books, while she supports hers by boxing them.

. . . .

“There’s a large level of precarious work that creates the conditions by which you are buying a book for $9.99,” says Alex Shepard, writer at The New Republic, who has written about Amazon for the magazine. The promise of well-paid, white collar jobs in urban centers also depends on “ruthlessly cutting costs at every level. Not just in their supply chain, but in the supply chains of the companies that sell on their platform as well.”

. . . .

At her Goethe Institute event, the audience asked Geissler questions about not just Amazon, but also the possibilities of socialism, the rise of the far right, and the decline of labor rights, even in Germany, which has a strong tradition of unions and workers’ councils. German writer Kevin Vennemann, who wrote the afterword to Seasonal Associate, tells me that German readers responded to Seasonal Associate as a critique of a particularly American brand of capitalism now affecting work culture in Germany too, leading to strikes and ongoing issues with workers’ councils. In this context, Geissler has been read as a strong, new voice amid rapidly changing political and economic norms.

. . . .

“She reemerged with this book as a writer who takes a firm political stand and has theoretical tools for analyzing late capitalist working conditions. It’s rare for that kind of book to be embraced on a larger scale within German literature,” says Venneman.

. . . .

In Seasonal Associate, Geissler writes that she wishes she had done more to disturb the peace while still an employee, that she had resisted the urge to play by the rules, ingrained in her since childhood. Damaged the products. Stuck an insult inside a package. Slowed down the supply-chain. Instead, she writes, she and her co-workers took out their frustrations on each each other.

Link to the rest at The Literary Hub

PG says, in case you missed it, the author of the OP and the author of the book would like you to buy Seasonal Associate.

And, as indicated, you can buy Seasonal Associate at Amazon!

As a matter of fact, if you’re a warehouse worker, you’ll almost certainly pay less for Seasonal Associate at Amazon than anywhere else. That way, you’ll be able to buy the book and have more money left over for basic necessities.

PG says Seasonal Associate falls into the literary genre of slumming.

“I’m an intelligent, refined and educated person who spent time with the proles and this is what it was like. I hated it!!! You can’t imagine the scope of the squalor and filth. You can thank your lucky stars that you’re not a prole and have to live like that. And, while I was a Seasonal Associate, I met some proles who said they don’t like squalor and filth, but they can’t afford to go to graduate school.”

“But now I’ve been there, done that, wrote the book. I knew my publisher would want some authentic prole color from real proles for Seasonal Associate, so I got it and I’m finished with the prole scene except for talking about it in my book interviews.”

“For my next book, I think I’ll write about the empty lives of the filthy rich who live on yachts and sail around the Mediterranean with no thought for the poor. That will be a nice change from being a Seasonal Associate.”

As the author of Seasonal Associate learned, warehouse work (and a lot of other jobs involving manual labor) is physically hard work. The OP doesn’t say whether the author had ever had a job involving manual labor before, but, if she had not, then her being sore and tired after work is to be expected.

From his own experience doing manual labor significantly heavier than the author’s, PG suggests that you become physically accustomed to the work after a couple of weeks, but going home sore lasts longer than that. Eventually, your body adapts. However, if the author is in her thirties and has spent several years writing books, absent a serious and continuing workout program, her body would take longer to adapt.

This is information that anyone with experience in manual labor would understand. A Seasonal Associate without such experience would be surprised and might come to the erroneous conclusion that everybody’s work experience was the same as her own, even if they had worked in the Amazon warehouse for several months or years.

As to “late capitalist working conditions,” if capitalism is going to disappear, what will replace it?

“The possibilities of socialism” are mentioned.

That certainly worked out well for the workers’ paradise formerly known as the German Democratic Republic. East Germany was so wonderful that its citizens kept leaving paradise for West Germany. They were probably worried about the potential for adverse effects from too much of a good thing. By 1961, one in five East Germans had fled the country. That left fewer people for the Stasi, the East German secret police, to watch.

The mortality rates for both men and women were significantly better in West Germany than in East Germany. As one example, reported suicide rates were about 60% higher in East Germany than in West Germany prior to reunification. These differences persisted over a period of about 20 years despite the fact that most observers believed the reported East German health statistics were substantially massaged prior to publication.

Mortality from heart diseases and alcohol abuse was also materially higher in the East than in the West. Much of the difference between other causes of death in West Germany vs. the Worker’s Paradise was the marked superiority of West German medical facilities and a chronic lack of medical supplies in East Germany.

PG has calmed down and will stop now.

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