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by Madeline Rains, edited by BNSesq

The backbone of Marvel Comics has always been the wealth of intellectual property possessed by the company. Its success was based around complete ownership of its characters, until Marvel ultimately sold its film rights for select characters to other studios in the 1990’s, following financial turmoil. Marvel’s struggle to regain those film rights illustrates the intrinsic value of licensing in the entertainment industry and the importance of protecting the rights of intellectual property. Marvel’s history, ongoing struggle to gain control of its character catalogue, and connection to Disney, makes it the perfect example of what can happen if intellectual property rights are not protected.

In 1939, Timely Comics was founded on the hopes that it could cash in on the growing popularity of comic books in America. At the beginning, Timely Comics created many characters that modern audiences would recognize today, including the Human Torch and, of course, Captain America. The characters and the comic strips they graced became wildly popular, and the comic book industry boomed. But by the early 1950’s the “Golden Age” of comics was over and readers lost interest in superheroes. Timely Comics pivoted in genre, changed the company’s name to Atlas Comics, and stayed afloat until DC Comics burst onto the scene with its superheroes in 1956. After seeing the revival of the superhero industry Atlas Comics changed the name once again to Marvel Comics in the 1960’s. During this subsequent “Silver Age” of comics, Marvel and DC reigned supreme as arch rivals in a competitive craft.[1]

Image result for captain americaMarvel would soon became a powerful force with which to be reckoned, as Stan Lee, Jack Kirby and Steve Ditko joined the company and created outlandish characters, bold storylines and eye-catching art.[2] Marvel’s trio of writers and artists harnessed a creative spark that allowed Marvel’s content to become king in the comic industry. The recently deceased Lee, along with Kirby and Ditko had the origins of an idea that would affect generations to come through comics such as The Fantastic Four, The Amazing Spider-Man, X-Men and The Incredible Hulk.[3] Lee, Kirby, and Ditko created some of today’s most iconic characters through their work for Marvel. While many comic books have an underlying story of good and evil that cannot be protectable by copyright, the storylines, characters and the designs were protected by copyright law under the consideration of work-for-hire. Marvel’s story arcs and characters became its most valuable asset.[4] Comics became collectors’ items during the 1980’s with consumers buying up vast numbers in the hope that one day they would be worth a fortune. As the industry boomed, Neil Gaiman, writer of the Sandman series, predicted the bubble would burst. DC and Marvel ignored his predictions and continued to sell comics that practically flew off the shelves and in 1989 Ron Perelman purchased Marvel for $82.5 million.[5]

In 1993 the bubble burst and the comic book industry collapsed under its own weight. Some accused Perelman’s footloose business tactics of jeopardizing the market and causing the collapse. Comic sales crashed by 70% and by 1995 Marvel found itself in crippling debt. As a last-ditch effort to right a sinking ship Perelman combined his other business interests to create Marvel Studios in hopes that the characters that so many people loved would make it to the silver screen and reignite the industry.[6] But to carry this out, Marvel had to make a deal with the devil–the movie studios of the time. Marvel sold the film rights of some of its most well-known characters for quick cash to dig itself out of bankruptcy. What was once Marvel’s most valuable asset, its characters, were now in the hands of other companies that had complete artistic control over new film adaptations. Marvel sold Spider-Man and his rogue’s gallery to Sony Pictures, Iron Man was taken by New Line Cinema, 20th Century Fox received all the characters associated with the X-men and the Fantastic Four, and Universal Pictures purchased the Hulk and Namor with the contingency of heavyhanded clauses.[7] The terms of character licensing allowed Marvel to partition out the aspects of the exclusive rights of their intellectual property that it wished to sell to the studios and limit them solely to that usage. The movie studios could only make films with those characters and were barred from using them to manufacture toys or create video games, for example.[8] Marvel’s silver screen dreams were finally realized, but its catalogue of valuable characters was fragmented almost to the point of being unusable.

By 2005, Marvel regained financial stability and put its plans into motion to create films under its own moniker after seeing how successful other film companies were becoming with Marvel’s characters.[9] The company was able to grapple the rights to Iron Man away from New Line Cinema whose option had expired after their inability to bring a film to the big screen and the rights to the Hulk from Universal Studios thanks to the time sensitive clauses built into the negotiations.[10] Marvel Studios began to blossom as Kevin Feige was employed to oversee the future of the Marvel cinematic universe. In 2008, Marvel Studios burst onto the scene with a $585 million dollar blockbuster in Iron Man. Marvel’s ambition caught the attention of Disney, who in 2009 bought the fledgling film studio for a staggering $4.3 billion, a far cry from the $82.5 million that Perelman spent in 1989. With Disney backing Marvel’s endeavors the comic giant was able to reclaim the intellectual property rights it sold on the verge of bankruptcy.[11] Since Marvel characters began to grace the silver screen in 1986 the catalogue of superhero films have generated $12 billion in total gross revenue and shows no signs of slowing down.[12]

The value of Marvel’s characters shot it to stardom, delivered it from bankruptcy and earned it billions in film revenue. Without its strong characters, storylines, branding and quick decision to sell its rights Marvel would have been another comic company that succumbed to the market crash. Marvel’s struggle speaks volumes about the intrinsic value of intellectual property and the importance of licensing.

Madeline Raheadshot ins is a senior at Belmont University majoring in Entertainment Industry Studies and minoring in Business Administration. This article was written with her love of the film and television industries in mind. She is a lifelong Tennessean and loves the city of Nashville. She plans to stay local as she transitions from Belmont into the workforce.

 


[1] DeForest, Tim. “Marvel Comics.” Encyclopædia Brittanica. Encyclopædia Brittanica, Inc.,September 6,2018. Accessed October 26, 2018.

https://www.britannica.com/topic/Marvel-Comics.

[2] Ibid.

[3] Lambie, Ryan. “How Marvel Went From Bankruptcy to Billions.” Den of Geek. April 17, 2018. Accessed October 26, 2018. https://www.denofgeek.com/us/books-comics/marvel/243710/how-marvel-went-from-bankruptcy-to-billions.

[4] Sudhindra, Nicole J.S. “Marvel Superhero Licensing.” WIPO. WIPO, June 2012. Accessed October 26, 2018.

http://www.wipo.int/wipo_magazine/en/2012/03/article_0005.html.

[5] Lambie, supra.

[6] Lambie, supra

[7] Perilstein, Zach. “A Visual Guide to Explain the Evolution of Marvel Character Rights.” Boardwalk Times. Boardwalk Times. Accessed October 26, 2018.

[8] Rob Aft and Charles-Edouard Renault. “From Script to Screen: The Importance of Copyright in the Distribution of Films.” World Intellectual Property Organization. Accessed October 26, 2018.

http://www.wipo.int/edocs/pubdocs/en/copyright/950/wipo_pub_950.pdf

[9] Johnson, Derek. 2012. “Cinematic Destiny: Marvel Studios and the Trade Stories of Industrial Convergence.” Cinema Journal 52 (1): 1–24. Accessed October 26, 2018. https://bunchproxy.idm.oclc.org/login?url=https://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=82990603&site=ehost-live.

[10] Sudhindra, supra.

[11] Lambie, Ryan. “How Marvel Went From Bankruptcy to Billions.”

[12] “Marvel Comics.” Box Office Mojo. Box Office Mojo, n.d. Accessed October 26, 2018.

https://www.boxofficemojo.com/franchises/chart/?id=marvelcomics.htm.

 

Is it time for Congress to draft a replacement for the 1976 Copyright Law? In point of fact, the law was drafted almost half a decade ago now and its last major amendment came in 1998 with the addition of the DMCA. Many argue that the advent of digital technology, driven of course by the ubiquitous Internet, makes the current iteration of the Progress Clause obsolete.
Recently, in March 2014, the current Register of Copyrights, Maria Pallante, made just such a proposal to Congress, urging them to create “the next great copyright act.” You can read those remarks here. But contrary to that proposal, other advocates of the status quo point out that Congress has amended the current law to keep it up to date. In fact, Pallante acknowledged as much in her remarks when she said “[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][a]s a general matter, Congress introduces bills, directs studies, conducts hearings and discusses copyright policy on a fairly regular basis and has done so for two centuries.” Her push is a part of a coordinated movement with the House Judiciary Chairman Rep. Bob Goodlatte (R-Va) to leave a mark on copyright law.
While I do not necessarily disagree with the Register of Copyrights that perhaps a consideration of a new consolidated law may be necessary to combine these various amendments, I am bothered by the fact that much of the urgency for a new law is driven by the various interested parties on the Internet who believe that just because a copyright finds its way into digital form, it is no longer protected and should be free for all to use, “mash up” or do whatever the hell they want to with it. These radical thinking individuals, such as The Pirate Bay, Lawrence Lessig, the Electronic Frontier Foundation and others use heated rhetoric and emotional appeals to call for a lessening of the copyright protection that has made America the most idea-rich country in the world. While these illogical and emotional appeals are a good way to drum up support dollars and defeat well-meaning and good legislation such as SOPA, they do very little to advance the philosophical and legal debate and should not be the driving force behind our legislation, good or bad. Good emotional causes make for very bad law.
These dramatic appeals for changing the copyright act are most often done with a lack of understanding as to its philosophical underpinnings, and often demonstrate ignorance of the business realities faced by those who create the arts and sciences, as well as the benefactors who support them.
One of the things that bothered me most about Pallante’s remarks was the total absence of any discussion of these philosophical underpinning of the copyright construct. There was no discussion of Article 1, Section 8, Clause 8 of our Constitution (the Progress Clause) or any reference to some of the chief architects of its current form, James Madison, Thomas Jefferson and Charles Pickney, just to name a few. It also worries me when Pallante suggests that the current term – Life + 75 – “is long and the length has consequences,” thereby questioning the validity of the Supreme Court’s proclamation to the contrary in Eldred v. Ashcroft. The latter, of course, is one of about a half a dozen cases the aforementioned anti-copyright advocates has levied against the law over the years.
Sandra Aistars, executive director of the Copyright Alliance, summed it up well in an opinion piece for The Hill entitled “Protect rights of artist in new copyright law.” She said “Should Congress take on the challenge of updating the Copyright Act, it must do so guided by sound principles, and its deliberations must be based in reality rather than rhetoric.” At least Aistars points out that the principle of copyright law is driven by the fact that “protecting authors in in the public interest” and based on “stable property rights.”
Article 1, Section 8, Clause 8 gives Congress the right “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Madison and Jefferson debated the various components of this clause with some degree of fervor in their massive collection of actual correspondence, with Madison defending the idea that if our society gives up a monopoly (copyright) to creators, the value of that monopoly will generate the creation of widespread ideas that would ultimately reward society. There is no doubt that the equitable component that was bestowed upon authors and inventors the day the Congressional Congress approved the Progress Clause has created the America we know and love today through the wealth of new ideas and expressions that have been created in the form of books, music, films, visual arts, scholarly research and inventions. Without that value in the patent or copyright, there would be no Apple, no Microsoft, no IBM, no Ford, no Chevrolet . . . you get the point. This is the reward that Madison envisioned our society would gain by giving individuals control over their creations, a theory that Locke and others disseminated long before the new nation of America was conceived.
As Aistars summarized in her article, “Ensuring that all creators retain the freedom of choice in determining how their creative work is used, disseminated and monetized is vital to protecting freedom of expression. Consent is at the heart of freedom, thus we must judge any proposed update by whether it prioritizes artists’ rights to have meaningful control over their creative work and livelihood.”
The most important thing for Congress to consider if it picks up the gauntlet laid down by Ms. Pallante is this idea that society benefits by giving a monopoly to creators. Given an individual who has created a work of authorship stable property ownership in that work is the foundation of our great Country and is the primary goal of copyright. To take that away takes away one of our inherent and valuable Constitutional rights, even greater perhaps than our Freedom of Speech and Assembly. Any new proposal much cherish the rights of the creators that the current Copyright Act has created and retain the same privileges and advantages. The future of our Nation in the Internet Age depends on it.
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By Bennett L. McMordie, ed. by Barry Neil Shrum

“Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. . . . [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][F]or the authorities are God’s servants, who give their full time to governing. Give everyone what you owe him: If you owe taxes, pay taxes; if revenue, then revenue; if respect, then respect; if honor, then honor.”

Romans 13:1-7 (ESV)

It is perhaps an irony that my use of Paul’s words concerning the respect owed to the authority of government may, in fact, be an infringement of a particular government’s copyright!

bibleMore to the point, is the fact I quoted these verses from the English Standard Version of the Bible copyright infringement? One would think not, as the original disparate writers of the assembled Hebrew and Greek texts that make up our modern Scripture have been deceased for centuries now, and their individual works were created long before any type of copyright protection was ever imagined, must less applicable. In fact, the first copyright statute, the Statute of Anne, would not be passed by Parliament until 1709, while the earliest extant fragments of any type of scripture are fragments containing Hebrew texts which date back to the 2nd century BCE.

The myriad translations of the Bible that are around today — over 400 English translations have been created over time, including popular versions such as the New International Version, the Good News Translation, the New American Standard Version, The Message — are registered by their respective publishers as copyrights in the United States.

So, if a preacher quotes scripture aloud in church, or reprints a couple of inspirational verses in his weekly newsletter, is the minister committing willful copyright infringement? Fortunately, he is not, but only by virtue of licensing. While most all translations of the Bible are copyrighted, their publishers allow people to copy them freely, howbeit with certain limitations. For example, the publishers of the New American Standard version allow a person to copy as much as 500 verses without prior written, so long as the total amount copied is less than 25% of the total new work created. Other publishers take a similar approach, allowing a person to publish 1,000 verses totaling less than 50% of the work. The rationale behind this policy is that it allows the public to use the Bible freely while preventing blatant reproduction of the entire text.

Perhaps one of the more intriguing examples of a protected version of the Scriptures the most popular version of the Bible, the King James Version, which is still protected by copyright l1769-King-James-Bible-Introductionaw despite the fact that it was published over 400 years ago.

The rights to the KJV, initially published in 1611, are still owned by the English monarchy, under their so-called “Crown Copyright” laws. The Copyright Act 1911 provided specific protection for government works prepared or published by or under the direction or control of the Monarch or of any Government department, specifically including the KJV.

Now, lest there be a revolution, there’s no need to get your “knickers in a wad” if you’re a non-Brit: the King James Version is in the public domain everywhere else in the world. Still, the concept of a government holding copyrights indefinitely can feel a little strange, especially if you’re from the U.S., where Article 1, Section 8, Clause 8 limits the grant of a copyright for “a limited time.” Unlike England where copyright concepts are based on natural rights, U.S. laws are based upon the utilitarian principle that incentivizing creative endeavors for a limited time and then passing them into the public domain sustains society’s interest in a fluid marketplace of ideas.

But in England, only two publishers possess the rights to print the King James Bible: the Queen’s Printer (now the Oxford University Press) and the Scottish Bible Board; all others must receive a letter patent from the Crown to legally print the KJV .

Should governments be allowed to hold copyrights?

Ownership of copyright by a government entity begs a larger question: shouldn’t works that were created for the public, using the people’s tax dollars, be available for public copying and use? This is certainly the case in the U.S., where §105 of the 1976 Act prohibits ownership of “any work of the United States Government,” which is defined in §101 as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” The effect of section 105 is intended to place all works of the United States Government, published or unpublished, in the public domain.

This prohibition only applies to works created by the U.S. on its own soil, and does not apply to works created in foreign countries, as most governments are entitled to copyright protections in their works. Thus, it would be unfair not to allow protection for U.S. works in that situation. Currently in Great Britain, works that are commissioned by the government are protected for 125 years from creation, or 50 years after publishing. image

The KJV states: “and ye shall know the truth, and the truth shall make you free.” (John 8:32). Now that the truth is known, shouldn’t the King James Bible be free to the descendants of King James?

Bennett McMordie is currently a student in Mr. Shrum’s Copyright Law class at Belmont University in Nashville, TN, where he is earning a degree in Music Business. He loves all things music, most things business, and also enjoys playing bass for the CJ Solar Band.

 

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OR, What’s in a Name? Personal Names as Trade Names REMIXED.

By Barry Neil Shrum, Esquire (with Ashley Trout)

“That which we call a rose by any other name would smell as sweet.”

You may know this quote from William Shakespeare’s classic play Romeo and Juliet or from the more “pop-culture” reference by Anne Hathaway in The Princess Diaries, but chances are you’ve heard it countless times before. A name is a sense of originality and persona. It is what gives us our sense of identity and belonging. Some psychologists and sociologists believe that people with certain names, such as Curt, David and Jeff, receive more positive affirmations in life than persons with less desirable names, such as Agatha, Edgar and Mabel, which are more likely to evoke negative messages from teachers, professionals and acquaintances.  One study reported in the Journal of Educational Psychology used elementary teachers to grade identical papers on which random positive and negative names were attached and, as you may have guessed already, the papers with the negative names routinely received the lower grade.  Now you don’t have to wonder why supermodels and handsome actors have the most unique and appealing names!  But Shakespear was perhaps trying to imply that it is the essense of the rose that matters, not its name.

One of the more popular articles on my blog dealth with this issue: What’s in a Name? Personal Names as Trade Names, written by my then-colleague, James H. Harris III for what was then a physical newsletter version of Law on the Row.  In it, Jim elucidates the user of personal names a marks or trade names in business.  I felt it was time to reexamine the issue in the light of celebrities, and extend the discussion to the rights of publicity sometimes also associated with a name.  So, the subtitle of this article is appropriately What’s in a Name? Personal Names as Trade Names REMIXED.

PalinThe bottom line is that some names are more unique than others, but your name is what makes you uniquely “you.” So, what happens when someone “steals” our name?  With the billions of people in the world, the chances significant that there is at least one other person who is walking around with the same name as you.  Is there anything that a person can do to protect their “unique” identifier?

What happens, for example, when someone tries to take a name like “Heidi Klum” or “Albert Pujols”?  Key figures or celebrities that, when you say their name, a certain image comes to mind.   Or, perhaps the name evokes an event:  mention the name Charlie Sheen, and you will likely think not only about his image, but more about his recent escapades surrounding his departure from Two and Half Men.

A very good example of this power of a name to evoke strong messages is the name “Sarah Palin.” Whatever your political opinion, whether you love Sarah Palin the Alaskan Governor/Vice Presidential candidate or whether you hate her, the name “Sarah Palin” evokes very strong thoughts, associations and yes, feelings. Look at the photographs associated with this article.  What kind of feelings does that evoke in you?  If you thought either was the real Sarah Palin, you are wrong. They are both actually impersonators – and different ones to boot!  Yet, the images evokes the association and the feelings that make you think of the real Sarah Palin and her personal idiosyncrasies.

Sarah Palin is, of course, an American politician, formerly governor of Alaska, but best known as John McCain’s “choice” as the Vice President candidate for the Republican Party in the 2008 election. She is best remembered for her “cowgirl” image, folksy humor and distinctive, if annoying “wink”:   but she is often also associated with her completely ineffective interview with Katie Couric that some say cost the Republican party the election that year – an interview greatly publicized by an impersonator.

Since the 2008 election, Palin has become a fixture on the Fox News networks. Whether she is expressing her opinions about issues such as abortion or gun control, Palin is anything but shy in making her voice heard. The result of all this puimageblicity, of course, is that her television and cable “Q Score” has increased significantly.

With a character as polarizing as Palin, the result is often a proliferation of impersonators. It did not take long in the case of Palin – immediately subsequent to the interview – for Tina Fey to begin imitating the Couric interview on the Saturday Night Live. Impersonators, of course, trade off the personalities and idiosyncrasies of the imitated celebrity or public figure.  Since the days of Rich Little, and his current replacement Frank Caliendo, the art of imitation has been a popular part of American pop culture.  There is no doubt that Ms. Fey’s notoriety increased as a result of her performances. Imitation may be the most sincere form of flattery, but can it go too far?  According to Sarah Palin and her handlers, it already has!

Tina Fey was just the first in a long line of Sarah Palin impersonators. Many people have since taken it upon themselves to impersonate Sarah Palin and trade on her persona, including perhaps the best known of the tribe, Patti Lyons and Patsy Gilbert.  See, infra.  So, the question is “Can Palin stop this type of activity?”

Not to sit on the fence, but the answer is maybe! Perhaps more precisely, she will be able, in a somewhat limited way, to enforce certain aspects of her persona and, in an even more limited way, the use of name in connection with certain services and/or goods.

We must first look to trademark, not copyright, for the answer to our quest.  According to the U.S. Patent & Trademark Office, a trademark is a “word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” Whenever you see the Golden Arches looming in the air, you immediately associate it with the burgers made by Mickey D’s – both trademarks of the McDonald’s corporation.

Likewise, whenever you hear the name “Sarah Plain,” chances are you picture a woman with long brown hair, most likely pulled back, thigh-length boots, and a pair of Kazuo Kawasaki 704 designer eyeglasses. Perhaps you see that aforementioned hackneyed wink she was so fond of using during the televised vice-presidential debates with VP Joe Biden. Whatever you see, the image of Sarah Palin is a very unique and distinctive image. And, more importantly, it is an association engrained in our minds.

So, since the image and name are so synonymous, does it follow logically that Sarah Palin can copyright her name? According to U.S. Copyright Law and historical interpretations thereof, it is well-established answer is “no, she cannot.”  Since its creation by our Forefathers, the Copyright law has never protected mere “ideas.” In fact, Jefferson stated flat out that “[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][ideas] cannot, in nature, be a subject of property. Specifically, things like titles, names, short phrases and slogans fall into that category, and thus are not eligible for copyright. Anything that can be treated as a building block – musical notes, letters, words – fall outside the scope of copyright’s protection.

But this doesn’t mean Palin is without protection all together.  In the United States, celebrities like Palin and others can protect their name, through trademark laws, and their persona, at least in 28 of the 50 states, through state laws governing rights of publicity.

Sarah Palin has opted, at least initially, to use trademark law to protect here interests in her moniker.  In an article by the Christian Science Monitor , she acknowledged filing for a trademark application for her name in International Classification 41 for “educational and entertainment services, namely, providing motivational speaking services in the field of politics, culture, business and values” and in IC35 for “Information about political elections; Providing a website featuring information about political issues.” The application is Serial Number 85170226 and the mark was approved for publication and the review of that publication was completed on April 12th. Likely the marks will issue within the next few months.

The thing to understand here is that it is not an uncommon practice among celebrities who want to enforce their intellectual properties, namely their persona or publicity rights, and prevent others from using their identifying features in similar trades and endeavors.  Filing a trademark application for use of their name in connection with certain services and goods is, in fact, extremely common for celebrities and I often advise my clients to take such action.

Currently, back in Sarah Palin’s world, there are two well-known figures impersonating her: Patti Lyons and Patsy Gilbert. Patti Lyons seems the most aggressive of the two, although both have been successful. In a Yahoo article, it was reported that Lyons showed up at a recent event in Washington, D.C. knowing that Palin would not be present.  Lyons impersonated Palin by dressing like her and making an appearance.  At the event, she deceived the crowd into thinking she was Palin.  Lyons spoke with her “fans” at the event and even those people were unable to detect the ruse. Lyons travels the country doing the impersonation with “fair and balanced” political comedy, and allegedly appeared onstage with Bill Clinton and Barack Obama. Lyons also has a website dedicated to her Sarah Palin impressions and is in negotiations with A&E for a special. Other impersonators, like Patsy Gilbert for example, have similar websites.

But even if Sarah Palin is successful in registering her trademark on the Primary Register, does that enable to prevent these impersonators from practicing their trade?  Maybe, maybe not. As our examination of protection moves further down the tracks, we have to reference a person’s right of publicity. Unlike copyrights, trademarks and patents, there is no uniform federal law that governs the intellectual property right of the right of publicity.  This right is based partly in common law, but also, as noted earlier, has statutory representation in 28 states. The problem is that there is very little uniformity among these state statutes, which range from 50 years in Illinois Cf. Ill. Comp. Stat. § 1075/30 – the most protection – to as little as 10 years at a time in Tennessee, for example.  Illinois’ neighbor, Indiana, gives protection for as long as the publicity rights are continuously transferred! Cf. Ind. Code § 32-36-1-16.  To quote another celebrity, can you say “to infinity and beyond?”  But don’t get me started on the rights of cartoon figures, lest I digress.

The right of publicity is essentially the inherent right of every human being to control the commercial use of his or her identity, in some state even after their death!  Some courts view this as a “moral” right, in line with the natural rights philosophy of John Locke, arguing that a celebrity’s identity is the fruit of his or her labor and creates property entitled to legal protection. See McFarland v. E & K Corp., Civil No. 4-89-727, 1991 U.S. Dist. Lexis 1496, at 4 (D. Minn. 1991).    Using this property right, celebrities may protect the commercial use of their persona, including their name, voice and personal characteristics, limiting their exposure and/or seeking compensation for their use.

Many of these laws, however, only prevent limited types of commercial use. Tennessee has a right of publicity statute which gives Tennessee residents “ a property right in the use of his name, photograph or likeness in any medium and in any manner.” Cf. Tenn. Code Ann. §47-25-1103, et. seq. In a case of first impression, Tennessee’s Supreme Court examined the statute in the context of a Beatles tribute band, i.e.¸a group of impersonators. The imitators dressed liked the Beatles, performed – remarkable close in sound – to the Beatles and, most importantly, advertised their concert using a pose similar to the one the actual Beatles use on the American version of the album, A Hard Day’s Night. The impersonators called themselves “1964 as the Beatles.”

The court ultimately ruled that the band could perform as impersonators, but could not use printed advertisements that evoked the persona and look of the original Fab 4. The court found that the impersonators’ use of the mark, The Beatles, in their name, and their use of the composition of the famous album cover in their marketing materials, was likely to create confusion for consumers. The court therefore issue an order containing prohibitions on using of the names “John,” “Paul,” “George,” and/or “Ringo” in advertisements, using their likenesses in advertisements, or using their famous mark, “The Beatles” in advertisements. The prohibition, the use of the mark, was extended to apply to the live performances, or stage name, of the impersonators. The band subsequently changed its named to “1964 the Tribute” and has gone on to moderate success.

The Tennessee court relied heavily on a New York case involving Jackie Onassis and Christian Dior.  Jacqueline Kennedy Onassis v Christian Dior, 472 N.Y.S.2d 254 (1984). The latter had used an impersonator of Onassis for a print advertisement. In the ruling the court stated:

We are dealing here with actuality and appearance, where illusion often heightens reality and all is not quite what it seems. Is the illusionist to be free to step aside, having reaped the benefits of his creation, and permitted to disclaim the very impression he sought to create? If we were to permit it, we would be sanctioning an obvious loophole to evade the statute. The essential purpose of the statute must be carried out by giving it a common sense reading which bars easy evasion.

The court found that the designer had violated Ms. Onassis’ right of privacy under the New York right of publicity statute

So, what is the bottom line for Sarah Palin. Once she successful obtains the registration of her marks, will she be able to prevent Ms. Lyons and her ilk to stop using her persona and her name? Again I say, maybe yes, maybe no. She will most certainly be able to prevent others from benefiting commercially from the use of her trademark and service mark in connection with her specified goods and services. But there is one more factor that may come into play with regard to Ms. Palin. In America, we uphold certain Constitutional principles to be paramount to property monopolies, particularly those of the intellectual types, such as copyright, trademark and, last but not least, rights of publicity. The First Amendment’s guarantee of freedom of speech and the Copyright concept of “fair use” come to mind immediately.

Sarah Palin is more than just a celebrity, she is a politician. Ms. Lyon is more than just an impersonator, she is a political humorist. Therefore, in the event that Ms. Palin ends up suing Ms. Lyon in an effort to enforce her newly obtained trademarks, she may very well have to overcome the defenses fair use and freedom of speech. Ms. Lyons has a constitutional right to imitate Ms. Palin in an effort to “comment upon” the state of politics in this country. However, her website, wisely, does not address politics or political issues, it merely offers her services as a humorist – notably a different service from that marked by Ms. Palin. Her URL is “www.imagesarahpalinimpostor.com,” while Ms. Gilbert’s URL is “www.sarahpalinimpersonator.com,” arguably not likely to confuse anyone into thinking these are associated with the real Ms. Palin – in fact, they arguable connote the opposite! So it will be unlikely that the real Sarah Palin will be able to prevent their usage of her name in that context.

But this is where it gets interesting. Reread the New York court’s comment above, and you will struck with its concept that an impersonator should not be allowed to create “an obvious loophole to evade the statute.” Exactly what will Ms. Palin be able to prevent. Do the images of Lyons and Gilbert that appear on their respective websites fall into the same category as the Onassis image and the Beatles cover art? The final answer is that it probably depends on the court and, ultimately, upon which law applies. Some states have more expansive rights of privacy and trademark protections. This will certainly be an interesting case to follow as it winds its ways through the courts.

Guest co-author, Ashley Trout, is a sophomore at Belmont University’s Mike Curb School of Music with an emphasis in music business.  Ashley graduated Freeburg Community High School (Illinois) in 2009.  She prepared the original draft of this article as part of an assignment for Mr. Shrum’s Copyright Law class.   She enjoys all things Disney and Harry Potter!

Get 50% off your first 3 months at audible.com![/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators… and the people this reverse Robin Hooding benefits are rich service providers, whose swollen profits perfectly mirror the lost receipts of the music business.  –Bono (New York Times, January 2010)

The passage of the Digital Economy Act in England last year has resulted in a surge of articles that claim that the negative impact of illegal downloading of MP3’s on the record industry has been “debunked” and that, in fact, studies confirm the opposite, that there is no significant impact.  I recently addressed one such claim on my blog in the article entitled 90% of All Statistics are Made Up on the Spot:  Fact is, copyright infringement DOES kill jobs, which addressed an article by Rick Falkvinge.  Matther Lasar of Ars Technica recently posted another article essentially making the same claim, entitled Did file-sharing cause recording industry collapse? Economists say no.  Lasar’s article is based in large part on a research paper by Bart Cammaerts and Bingchun Meng of the London School of Economics and Political Science entitled Creative Destruction and Copyright Protection: Regulatory Responses to File-sharing..
In response to the DEA, one of the “key messages” of Cammaerts’ and Meng’s study is that common refrain that the decline in sales of CD’s cannot be attributed solely to illegal downloads of their digital equivalents.  To be precise, here is their key finding:
Decline in the sales of physical copies of recorded music cannot be attributed solely to file-sharing, but should be explained by a combination of factors such as changing patterns in music consumption, decreimageasing disposable household incomes for leisure products and increasing sales of digital content through online platforms.
Does this not seem like a circular argument to anyone else that the conclusion that a decline in sales cannot be attributed by file-sharing, a significant change in how music is consumed, is supported by the assertion that it is better explained by a “combination of factors such as changing patterns in music consumption”?   This conclusion by the “researchers” is based in significant measure, as are most of the conclusions in the report, on reports and studies done by others, including the long-since refuted study by Oberholzer-Gee and Stumpf conducted in 2004, entitled The Effect of File Sharing on Record Sales: An Empirical Analysis.    Oberholzer-Gee and Stumpf erroneously concluded that the impact of illegal file-sharing on the music industry was, in their words, “null” but have since revised their conclusions and now argue that illegal file sharing is responsible for about 20% of the decline in the decline of revenue in the music industry.  See File Sharing & Copyright 2010. It seems on the surface that the study is nothing more than rehash of old information.  Based on review of these reports, Cammaerts and Meng concluded that “the claims by the music industry regarding the detrimental impact of infringing file-sharing on sales are flawed.”
The fact is all but a handful of the surveys related to the subject confirm illegal file-sharing reduces consumer spending on legitimate music, and confirm that the dramatic decrease in the sales of recorded music is caused by illegal file-sharing.  See, e.g., Norbert Michael (The Impact of Digital File-Sharing on the Music Industry: An Empirical Analysis, 2006), Rob & Waldfogel (Piracy on the High C’s, 2006) and Alejandro Zenter (Measuring the Effect of File Sharing on Music Purchases, 2003).  A 2006 study by Professor Stan Liebowitz, File-Sharing: Creative Destruction or Just Plain Destruction? concludes that all  “. . . papers that have examined the impact of file-sharing . . . find some degree of relationship between file-sharing and sales of sound recordings.”  Oddly, the only study that finds zero correlation is the Oberholzer and Strumpf study, which it has been frequently discredited.
The International Federation of the Phonographic Industry (“IFPI”) recently released the IFPI Digital Music Report 2010:  Music how, when, where you want it reports what most economists and others who have studied the effect agree on:  “Overall music sales fell by around 30 per cent between 2004 and 2009.” p. 6.   The good news to be gained from the IFPI report is that overall sales of digital music increased to 27% of the industry’s revenue in 2010, a significant jump from almost zero in 2004.
All of this I say not really to fuel the flames of the the debate related to the cause of the decline in the music industry, but to point out that in the midst of all the studies, all the reports, and all of the conversation, there is one group of people whose voice is often not heard:  the songwriter.  I began this post with a quote from the incomparable singer-songwriter, Bono, who states flatly what is often overlooked:  the people it hurts are the creators.  If you read closely through the reports I have linked to in this article, you’ll find very little, if anything, about the impact of illegal file sharing on the songwriter.  Yes, there a some vague references to “authors” and sometimes “creators,” but for the most part the researchers focus their impact on the more broad category of impact on the overall sales of recorded music.  Very little attention is given to the trickle-down impact, i.e., how it affects the songwriter and the small music publishing companies that line the streets of Music Row here in Nashville.  The only report of which I am aware which includes a significant sampling of songwriters is the one conducted by Mary Madden for the PEW Internet & American Life Project in 2004 entitled Artist, Musicians & the Internet.  I won’t rehash all of the argument I made in 90% of All Statistics are Made Up on the Spot: Fact is, copyright infringement DOES kill jobs, except to say that most of these studies ignore the songwriter, on which the illegal downloading of songs has arguably made the greatest impact.  Even back in 2004, when the study was conducted, 75% of the respondents (which included a pool of artists and musicians in addition to solely songwriters) stated that they held down a second non-songwriting-related job which was their primary source of income.  I know for a fact that almost all of my songwriting clients hold second jobs, which prevents them from creating music.  The decline in these songwriter’s revenue is a direct result of the loss of mechanical royalties resulting from the massive decline in sales of physical product, not to mention a decline in performance royalties as a result of fewer artist being played on the radio, which is a result of fewer record labels investing in the career of new and developing artists.
This brings me to my last, and perhaps the most disturbing, observation raised by the new IFPI report.  The report states that
Illegal file-sharing has also had a very significant, and sometimes disastrous, impact on investment in artists and local repertoire. With their revenues eroded by piracy, music companies have far less to plough back into local artist development. . . .
The impact of declining revenues and illegal file-sharing on the availability of venture capital is another factor that is rarely if ever considered by many of the so-called reports on the decline in this “lost decade” of the music industry.  Why would any entity risk investing hundreds of thousands of dollars in a new artist when there is no perceivable source of revenue from which to gain a return on investment?  The answer is that they do not.  The impact of the Internet on the creative industry does not stop at the music industry.  Other industries that are starting to feel the impact of lost revenues are the movie industry, the television industry, the print publishing industry and the fashion industry.  Anywhere that creative endeavors are conducted for profit, the profits are being diminished in one form or another by the impact of P2P file-sharing.  My wife has a saying about people who live together when they are not married:  “Why buy the cow when you can get the milk for free?”  This also applies in the creative industries:  people do not generally pay for that which they can get for free.
The chief executive of Kudos, Stephen Garrett, said it best perhaps:
We are in danger of creating a world where nothing appears to have any value at all, and the things that we make…will become scarce or disappearing commodities.
I hope that danger does not become a reality.  Being deprived of the talents of, say, a Don Henley or a Bono, simply because we are unwilling to shell out a buck for a mp3, would, in my humble opinion be a real shame.

By Barry Neil Shrum, Esquire and Nathan Drake

The classical libertarian, Frédéric Bastiat, is quoted as saying:

In the full sense of the word, man is born a proprietor. . . . Faculties are only an extension of the person; and property is nothing but an extension of the faculties. To separate a man from his faculties is to cause him to die; to separate a man from the product of his faculties is likewise to cause him to die.

According to a recent article, entitled The Copyright Monopoly is a Limitation of Property Rights, the author, Rick Falkvinge, writing for TorrentFreak.com, argues that copyright is merely “a limitation of property rights” and is “not a property right.” This conclusion is incorrect and totally without any basis in U.S. history, not to mention world philosophy. Article 1, Section 8, Clause 8 of the United States Constitution directly refutes that by granting Congress the power

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

Our Forefathers, in this case James Madison and Charles Pinckney, based the idea of intellectual property rights on John Stuart Mill’s utilitarian philosophy. In other words, they were quite willing to violate the property of tcode-of-hammurabi-3he few – i.e., the "rights" of individuals to use someone else’s intellectual property however they choose – if doing so would serve to advance the greater good of society as a whole. So, the original drafters of the Constitution did. They did not intend to grant partial ownership to the creator, but rather “exclusive rights” for a work derived from their intellect and creativity. That is to say, the idea that copyright is a monopoly is not the "carefully chosen" "rhetoric from the copyright lobby" of recent vintage as put forth by Falkvinge is completely false: rather, it is an idea that our Forefathers debated and discussed, and carefully chose to bestow upon Authors and Inventors.

Many fail to grasp the idea that the ownership of an intellectual property such as copyright is no different than ownership of real property, such a person owning their own house or piece of land. Both forms of ownership are based on societal laws and give the owner inherent rights to do with the property as they please. Just as the government prohibits individuals from reproducing and distributing copyrighted works, so does the government prohibits individuals from trespassing onto another person’s personal property or stealing their possessions. Are the latter "government-sanctioned private monopolies" that impose "limitations of property rights" on individuals other than the owner? You bettcha! That is, in fact, what a monopoly is: allowing an individual to control something to the exclusion of other competitors.

The significant different between real property (i.e. the chair in Mr. Falkvinge’s analysis), and a copyright (i.e. the DVD in aforesaid analysis), is that the chair is a tangible object, and its essence is easily grasped by our senses. A DVD, on the other hand, is a physical object which embodies, for example,  a movie, or intellectual property, that is intangible and more difficult to conceptualize. When purchasing a copyrighted work such as a movie, one has to realize the two forms of property contained within that physical object that is the DVD. Falkvinge draws his analogy between the chair and the DVD as follows:

When I buy a movie, I hand over money and I get the DVD and a receipt…after the money has changed hands, this particular movie in mine.

This statement is factually and legally incorrect. Although the purchaser owns the physical embodiment of the DVD – and in fact may dispose of it any way he or she chooses – the purchaser does not own the intellectual property embodied within the DVD, and may not exercise dominion, or monopoly, over that property. The creator of the work, in fact, owns the intangible property encoded in the DVD, and the creator is within his/her rights, according to section 106 of the United Sates Copyright Code, to reproduce and distribute the work as they please due to the time, creativity and money that produced the work. The owner of the physical object containing the movie has no such rights. Our Constitution is what controls this fact, not just the copyright laws Congress has passed under its authority.

The umbrella of intellectual property, and more specifically Article I, Section 8, Clause 8 of the Constitution, also include the concept of patents. In the article, when Falkvinge compares the limitations copyright places on the purchaser of a DVD to the endless opportunities an ostensibly-expired patent gives the purchaser, he erroneously concludes that " patents are not relevant for this discussion." Oh, but they are. First, one cannot legitimately compare a patent with limitations that have expired to a copyright that currently retains its exclusive rights and limitations. In fact, one author has asserted that it is patents¸not copyrights, that place a greater restriction, or monopoly, on property rights. In Man, Economy, and State, Murray Rothbard concluded:

The patent is incompatible with the free market precisely to the extent that it goes beyond the copyright.… The crucial distinction between patents and copyrights, then, is not that one is mechanical and the other literary. The act that they have been applied that way is an historical accident and does not reveal the critical difference between them. The crucial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right. Rothbard’s point is that businesses should not be restricted from independently designing and creating a product using natural laws and principles, even if it turns out to be similar to a patented product, even though our legal structure often operates in that manner.

But the greater point to made here is this: accepting the validity of a patent monopoly requires the acceptance of a copyright monopoly. Both rights are granted by the same Constitutional clause and, a priori, both are relevant to any discussion of government-granted monopolies. Second, simply because an individual purchases the physical embodiment of a chair design does not imply that they acquire full rights to disassemble, analyze, reengineer and distribute the chair commercially. To play with Falkvinge’s analogy, imagine that instead of chair, we are discussion the purchase of a new automobile, let’s say a Ford Mustang. Does one who purchases an automobile by virtue of that sales transaction, gain the right to deconstruct and reverse engineer the product, and start his or her own manufacturing facility to churn out duplicate cars in order to compete with Ford? Why, because there is intellectual property that is embodied in the automobile, just as there exists intellectual property embodied in a DVD, a CD and, yes, even an MP3 or an MP4. Based on the utilitarian teachings of John Stuart Mill, our society believes in rewarding an individual for the “fruits of their labor.” When labor is applied to raw goods by an individual in order to create an original expression of an idea, our society has agreed that this product is the property of the individual that created it. Our Constitution grants the creator of such product a limited monopoly in the exploitation of that creation. This brings me to my final point:

The copyright is, in fact, a “government-sanctioned private monopoly.” The ideology behind the monopolization of intellectual property is to “promote” and incentivize people to create works with the understanding and confidence that the time, energy and financial hardship involved will be fairly compensated. Without any supreme authority protecting the interests and livelihood of creators, the motivation to develop such a work arguably decreases dramatically. The implementation of the monopoly grants the property rights in the creator. As with all property rights, that grant places limitations on the persons who do not own the property.

So, the idea that "monopoly" is an evil concept which the lobbyist have attempted to associate with a "positive word such as ‘property,’" as Falkvinge argues, is historically, philosophically, and logically false. It is rather a concept that has been with us since the Code of Hammurabi first described laws regarding property; it was passed down to us by our Merry Old Ancestors from England; it is a right the participants of the Oklahoma Land Rush had to fight to exercise; and it is these rights – the right to exercise control over one’s intellectual creations – that assure a society in which ownership of property is exercised by the appropriate party by wielding their monopoly against those that would steal it away.

So yes, Mr. Falkvinge, a copyright monopoly is a limitation of property rights. But it is also a means by which the owner can exercise his or her property rights. The limitation is, in fact, on those who would steal their rights. So if this is a limitation on your rights to freely distributed copyrighted product, I’m ok with that and I think the majority of our society is as well.

As the French economist François Quesnay succinctly said: “Without that sense of security which property gives, the land would still be uncultivated.” In other words, if we don’t grant a monopoly to our "cultivators" of ideas, the landscape will be baron.

See also, Cleveland, Paul A., Controversy: Would the Absence of Copyright Laws Significantly Affect the Quality and Quantity of Literary Output? A Response to Julio H. Cole, Journal of Markets & Morality 4, no. 1 (Spring 2001), 120-126

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The search engine giant Google, known for its colorful name and creative endeavors, has been convicted in French Court of infringing the copyrights of four artistic works and now faces fines upwards of $600,000, not including legal costs and attorneys fees. The plaintiffs in the case was made up of four entities who owned the allegedly infringed copyrights: a photographer, the producers of the movie Mondovino, and two other documentary filmmakers responsible for the films Armenian Genocide and the Clearstream GoogleControversy.

According to the plaintiff, "take-down" notices were sent to Google demanding that the copyrighted works be taken off their search engine and its "Google Video" component citing the alleged infringement. Although Google agreed to remove the content from their website, the works remained available, initiating further legal action by the plaintiff and involving the Court of Appeals in Paris. Google argued that monitoring individual internet posts to verify whether specific material appearing in a search result infringing copyright is a tedious, if not impossible, task. More importantly, it argued that such activity is ultimately not their responsibility. Google defended its position by citing Article 6 of the 2004 French act entitled Law of Confidence in the Digital Economy, which

“[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][e]xclude[s] civil and criminal liability on the part of hosts in two cases ­ no knowledge of the disputed content or of its unlawful nature, and withdrawal of such ccourcassationontent…these provisions could not impose liability on the host merely because it had not withdrawn information reported by a third party as being unlawful…”

The French protections are very similar to the safe harbor provisions of the U.S. Digital Millennium Copyright Act of 1998. But the Court of Appeals in Paris refused to give Google safe harbor under the law. Instead, in four separate decisions (three rendered on January 14, 2011 and one on February 4), the Court assessed approximately $600,000 in damages for what it called “préjudice moral” and infringement.

Google has appealed the decision with the highest court in France, Cour de Cassation, which acts strictly as an appellate court, and the prospects for Google on appeal look more promising as they begin process. In 2009, the Cour de Cassation ruled that the video hosting website, Dailymotion, was not liable for providing the film “Joyeux Noël” because the provider did not have "explicit knowledge" of the infringed material being on their website, basing its decision on Article 6 of the Law of Confidence in the Digital Economy. According to Article 6, three criteria must be met to invoke knowledge of infringed material, including specifically that “notifications should indicate precisely which content is alleged to be unlawful, its precise location on the website and the reasons why it is unlawful.” Google intends to use this ruling to their favor as they embark on a case that will likely become the first of many.

http://www.ipbrief.net/2011/03/13/the-unimaginable-happened-google-sued-for-copyright-infringement/

http://www.twobirds.com/English/News/Articles/Pages/Paris_CourtofAppeal_Dailymotion_host.Aspx

http://www.juriscom.net/actu/visu.php?ID=949

http://merlin.obs.coe.int/iris/2004/7/article18.en.html

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By Barry Neil Shrum & Nathan Drake

In November 2010, the Federal Immigration and Counterfeit Enforcement agency (“ICE”) recently seized 82 websites and shut them down on the grounds that they were committing criminal copyright infringement. One of these websites has recently become the spotlight of attention:. Brain McCarthy, the owner and operator of channelsurfing.net, has been arrested by ICE and charged with providing free streaming content to NFL, NHL and NBA sporting events. According to the ICE, McCarthy accumulated approximately $90,000 from advertisers on his website, and has received over 1.3 million hits since being obtained last month, depicting the significance of the website.

IICECE acts as the principle investigative arm of the United States Department of Homeland Security and is currently the second largest investigative arm of the federal government. What makes ICE’s action unusual is that McCarthy is charged with criminal copyright infringement, since most other cases involving copyright infringements are brought against defendants in civil court in search of damages. If charged as a criminal, McCarthy could serve up to five years in prison and pay substantial monetary fines.

These actions by ICE create a certain level of perplexity in the eyes of the public. In the eyes of many, including the editors of TechDirt, ICE’s actions are not justificed since, at the time of the channelsurfing.net seizure, the website ostensibly did not “possess” any copyrighted material, but rather only provided links to other website/servers where the infringing material resides. Is the criminal charge levied against McCarthy warranted if he was merely acting as a conduit of infringing information?

Perhaps the answer lies in the criteria constituting criminal copyright infringement in United States Code Title 17 U.S.C. § 506(a) and 18 U.S.C. § 2319. The code states that the prosecutor must show the following elements to prove criminal infringement:

(1) that a valid copyright; (2) was infringed by the defendant; (3) willfully; and (4) for purposes of commercial advantage or private financial gain.

To apply the analysis, it’s necessary to understand, on a technical level, what is happening on the McCarthy’s website. He is providing a “link,” i.e., a form of hypertext markup language, or HTML, that, when clicks, directly a stream of video to the user within the structure of McCarthy’s website. So the question become whether the criteria has been met. Let’s examine it:

Is there a valid copyright? Yes. This is easy. The NFL, NHL, NBA, etc. all possess valid copyrights in their broadcasts.

For purposes of financial gain. No doubt. Here, McCarthy obviously profits from the availability of the infringing material on his website, regardless of where the material is stored.

Wilfully infringed by the Defendant. Here is perhaps where some debate might occur as to McCarthy. Was his intention in placing the links on the site to infringe the copyright owner’s rights? If so, was it wilful?

One case that has examined the issue of whether embedded HTML code can serve as the basis for copyright infringement is Perfect 10 v. Google decided by the 9th Circuit. In that case,, Google was accused of civil copyright infringement for using a database of “borrowed” photographic images and making them available on their website when a user performs a search. The Citizen Media Law Project at Harvard University explained the ruling on this case as follows:

“The court went on to conclude that HTML instructions do not themselves cause infringing images to appear on a user’s computer screen because the HTML instructions merely convey an address to the user’s browser, which itself must then interact with the server that stores the infringing image. Accordingly, the mere provision of HTML instructions, in the view of the 9th Circuit, does not create a basis for direct copyright infringement liability.”

Several things should be noted about the 9th Circuit’s opinion. First, this case involved civil liability for copyright infringement, not criminal. The elements for civil copyright infringement are very different than those for criminal infringement. Secondly, the 9th circuit court is known as a radical circuit and many of its decisions are on the fringe. It’s rulings certainly do not hold the clout of the U.S. Supreme Court. Nonetheless, the decision, though it will likely be challenged, provides a new and thought provoking perspective.

So, bottom line, what do we think about McCarthy? In my opinion, the 9th Circuit is off base in regard to providing HTML code that “merely convey[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][s] an address to the user’s browser” which it must then “interact” with to obtain the infringing image, which is stored on a different story. What the court complete overlooks is that this is the very essence of vicarious joint & several liability! It’s a well-established principle of copyright law that everyone in the chain of distribution is jointly and severally liable for the actions of the primary infringer. Taking this theory out of the physical realm and putting it into the digital realm should not change its application. In my humble opinion, Mr. McCarthy likely knew what he was doing. He is providing users with access to multiple portals that provide them with streams of illegally obtained intellectual property, much as a vendor on the streets of New York city provides pedestrians access to counterfeited Rolexes! The fact that he does not “warehouse” the goods, in either case, does not change the fact that he is facilitating the infringement.

Arguably no other circumstances in the history of law has caused so many problems of application as the invention and development of the Internet. This virtual world as wonderful a resource as it is, allows for greater efficiency and anonymity for infringers than ever thought possible, serving as a double-edged sword for this generation. While some may view the efforts of those pursuing copyright infringement via the Internet futile – in fact many consider copyright itself unnecessary as a result of the Internet – these enforcement efforts are nonetheless important and essential in maintaining the rights set forth by our forefathers over a century ago: rights of monopoly balanced with limitations and public access. If we as a society do not honor these goals, it is probable that we will be faced with a less creative society.

http://www.techdirt.com/articles/20110104/12324012513/did-homeland-security-make-up-non-existent-criminal-contributory-infringement-rule-seizing-domain-names.shtml

http://paidcontent.org/article/419-feds-campaign-against-pirate-websites-leads-to-an-arrest/

http://www.techdirt.com/articles/20110303/16584013356/ice-arrests-operator-seized-domain-charges-him-with-criminal-copyright-infringement.shtml

http://www.ice.gov/about/overview/

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01847.htm[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

NBC Universal recently hired a company called Envisional to study counterfeiting activity over the Internet. The results of this study – despite the fact that it is industry funded – are literally astonishing: 24% of all global Internet traffic involves digital theft!  Stated another way, one in every four people surfing the Internet are stealing intellectual property, i.e., illegally downloading either copyrighted or trademarked materials.  According to the International Federation of the Phonographic Industry, 95% of the music downloaded from the Internet is downloaded illegally!  Imagine how our society would react if one out of every four people in retail malls were carrying out stolen merchandise on a daily basis, or if 95% of the product leaving the mall was stolen.  It would be chaos.

Ring of FrodoNow consider whether these people who so quickly download a song or a movie on the Internet without paying for it would also walk up to an artist selling their painting in the park and steal one of their painting.  I firmly believe the answer to that question is a resounding no!  But why? What is different about the world wide web, i.e. cyberspace, that gives these consumers the feeling that they are entitled to download music and movies through mechanisms like BitTorrent without compensating those who created such product?  What are these people thinking?

I think the answer can be found in the writings of Plato.  In the second book of his Republic, Plato’s student, Glaucon, poses the illustration of the “Ring of Gyges.”  In the story, Gyges is a shepherd who finds a magical ring in a chasm created by a lightning storm.  The ring gives him a cloak of invisibility.  Using his newfound power, Gyges seduces the Queen of Lydia, murders the King, and takes the throne, gaining power, wealth and fame.  In the Republic, Glaucon argues that given a similar opportunity, any person, whether or not they were previously just or unjust, would use the power to commit as many crimes as necessary to get what they want [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][Book II, 359d].    Glaucon was responding to Socrates’ refutation of arguments put forth by Thrasymachus in Book I of the Repbulic, i.e., that “justice is nothing but the advantage of the stronger”  [Book I, 338c].

I believe Glaucon’s experiment in thought informs us as to why someone who would not normally steal a tangible object in the physical world is nonetheless more than willing to download music or movies, intangible objects, on the Internet for free: because the fear of being punished or getting caught is eliminated in the evanescent world of Cyberspace.  The Internet, like Gyge’s ring, confers upon its users a seeming cloak of indivisibility as it were.  As one astute commentator surmised in response to an interview with Alice in Chain’s lead singer, Sean Kinney, “The real reason people steal music is that they CAN and very easily.”  That this is a truth is evident from the plethora of “how to” guides on the Internet, teaching people “How not to get caught.” There you have it in a nutshell.   All of the commentary about how the record industry has been thieves and how the RIAA unjustly goes after the defenseless people, these are mere justifications for actions people otherwise know in their hearts are wrong.

It’s important to read Plato’s response to his student to understand fully, as Plato did not agree with Glaucon.  Plato’s argument in the remaining portion of the Republic is that the just man would not be tempted by this cloak of invisibility to commit crimes.  Rather, the just man understands that crime itself makes a person unhappy and that he is better off to remain just.   I frequently discuss this issue with my college students at Belmont University when teaching a course on Copyright Law.  One of my students made the following observation, which confirms Plato’s conclusion.  She said:

I do not follow the rules because I am scared of the RIAA busting me for illegal downloading. I follow the rules because I have respect for the people who wrote and recorded the songs, and even more, because I want to work in the music industry.

Another relevant opinion is offered in the excellent blog article found on arbiteronline entitled Illegal downloading: The real cost of ‘free’ music.” In that article, a student at Boise state, Ammon Roberts, is quoted as saying:

“I don’t do it because I don’t feel it’s right.  If I were making the music, I’d be upset if people were downloading it for free.”

For these two students, following the rules is not about whether or not they’ll be caught, it’s about doing the right thing.  It’s about honoring, i.e. compensating, the people who created the music. 03-20-invisible_full_600 This illustrates Plato’s point precisely:  a just person understands that even with a cloak of invisibility, doing the right thing makes a person happy or, in the words of Roberts, makes the person “feel right.”

The Internet is also very much the Land of Oz.  In addition to this cloak of invisibility endowed on us by the Internet, it also deceives us with illusions of anonymity – not so much that the user is anonymous, as that’s merely another form of invisibility – but in the sense that it’s difficult to know who’s behind the curtain.   As Trent Reznor said in an interview, “there is a perception that you don’t pay for music when your hear it . . . on MySpace.”  Because of its sheer vastness and its mysteriousness, Cyberspace gives people false perceptions that their actions on the Internet do not affect real people.   This, in turn, creates an illusion that “resistance is futile.”  Everyone is doing it, so I can too.  In other words, Cyberspace alters our reality in that it makes the real people behind the music an amorphous, anonymous entity.  The result is that it’s much easier to steal from an amorphous, anonymous entity – the man behind the curtain – than it is from a struggling songwriter, particularly when all your friends are doing it.

I truly believe that most of the people who are illegally downloading music from the Internet have no idea who they are affecting or how widespread the effect is.  Most of these people would not even think about walking up on stage after a singer/songwriter in a nightclub takes a break and stealing his guitar, but that very same person doesn’t think twice of taking that same singer/songwriter’s song from the Internet.  They wouldn’t steal the filmmaker’s camera, but downloading the movie doesn’t phase their consciousness.  In fact, many who contribute to the  dialog would argue that these two thefts are not analogous.  But one analysis conducted by the Institute for Policy Innovation states otherwise.  The report indicated that music piracy causes $12.5 billion of economic losses every year.  It further concluded that 71,060 U.S. jobs are lost, with a total loss of $2.7 billion in workers’ earnings.  Such reports abound throughout the industry, yet many of the people guilty of illegal download continue to view these reports as industry-driven and, therefore, skewed.  Take this comment by blogger Michael Arrington as an example:

Eventually the reality of the Internet will force the laws to change, too. One way or another the music labels will eventually surrender, and recorded music will be free.  Until it is, I refuse to feel guilty for downloading and sharing music. Every time I listen to a song, or share it with a friend, I’m doing the labels a favor. One that eventually I should be paid for. Until that day comes, don’t even think about trying to tell me that I’m doing something ethically wrong when it’s considered quite legal, with the labels’ blessing, in China.

resistanceBut what this illusion of anonymity, and such misguided opinions, miss is the fact that very real people – not amorphous masses – are being affected.  And the effect is devastating.  I have clients who are songwriters who are no longer creating art because they are forced to take odd jobs to support their families.  The performance royalties they used to receive from ASCAP, BMI or SESAC are down by half or more from a few years ago.  Their mechanical royalty checks are virtually non-existent.  They simply cannot afford to create simply for the sake of creation.  And now, working sometimes two jobs, they don’t have the time to create.  What will become of the art of songwriting if Mr. Arrington has his way and all recorded music is free?  I believe we will not have the quality of music in this country that we have enjoyed throughout the last millennium.  In this instance, I do not believe that resistance is futile.

Now, getting back to Plato and the Ring of Gyges, in answer to Glaucon, Plato would say that the root of all trouble is unlimited desire.   How true is that in this world of Cyberspace, in this world of rampant illegal downloading.  The wheels really fell off the wagon when the RIAA sued Diamond Multimedia, bringing the MP3 into society’s field of view.  Then, Napster exploded and almost everyone found that almost every song they ever loved was available for free.  It’s as if they were Harrison Ford and discovered the treasure room in an unknown, ancient tomb: everything your heart desires is within your grasp.  It’s yours for the taking.  With its cloak of invisibility and its illusion of anonymity, what the Internet has done, in short, is to return the power – i.e., the control – back to the people.  Everyone is now a creater, a publisher, and distributor.  No one needs the conglomerates anymore – the people have the power.  But, as Lord Acton said, beware:  “Power tends to corrupt, and absolute power corrupts absolutely.”  With power, therefore, comes responsibility.   Unfortunately for the music industry, the power is currently being abused and will, ultimately, mean the end of the recording industry as it existed through the 20th century unless the creators regain that power.

So what does this mean for those of us who have chosen to make our living in the world of creation?  Does it mean the end of our industry?  Does it mean an end to copyright law as it exists?  If we examine the origins of copyright – i.e., the protection of an original idea expressed in a tangible format – as passed down to us from our forefathers, we find a concept on which we can continue to build.  In the now famous Radiohead experiment in which Reznor and crew allowed consumers to pay what and only if they wanted to, 18% of the consumers chose to do so!  That to me, is an encouraging statistic, and one that confirms a believe in the viability of creating art.  At least one in five people, even with the cloak of anonymity provided by the Ring of Gyges of this era, i.e., Cyberspace, chose to pay the creators for their creation.  Take that Glaucon!  Take that Arrington!  What does that say for our society?  It says that there are people who still chose to do the right thing, even when the tide of conformity rises above their heads.

The bottom line is that it really doesn’t matter what laws are passed by society, there will always be a certain percentage of people who will chose to steal, take and plunder, whether it be because they are more powerful or because they are cloaked with invisibility or shielded by anonymity.  But – and here is the important thing – there will also always be a segment of society that recognizes the idea that Thomas Hobbes first advanced hundreds of years ago, i.e., the idea of “giving to every man his own.”    If a man bakes a loaf of bread, is it not his right to trade that to the artist for whose painting he wishes to barter?  This idea was later incorporated by our Forefathers into Article I, Section 8, Clause 8 of the U.S. Constitution, which gives Congress the authority “[to] promote the progress of science and useful arts, by securing for limited times to Authors and Inventors the exclusive rights to their respective Writings and Discoveries.”  Without this Constitutional right, a creator has no hope of protecting his or her property against plunder.  And as long as a segment of society believes this proposition to be beneficial to society as a whole, it will hopefully continue to motivate creators to create, and so profit from their creations, despite the efforts of those who choose to destroy it under a cloak of invisibility and unjustly take for themselves the kingdom of Lydia.

Quotations from Republic are taken from the W.H.D. Rouse translation, Great Dialogues of Plato, Mentor Books, 1956, a quoted in this fine article on the topic.

 


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Origins of an Idea–Nothing New Under the Sun?

It was allegedly King Solomon who declared “there is nothing new under the sun!” Now a recent strain of thought seeks to recast King Solomon’s casual observation in order to challenge the basis of U.S. copyright laws, i.e., original ideas. This line of reasoning is perhaps best exemplified in the popular cult film by Brett Gaylor entitled RIP, A Remix Manfesto, inspired by his need to defend the work of his favorite mash up artist, Girltalk. Gaylor makes no bones about his attack on ideas, explaining to his audience near the beginning of the film that this is “a film about the war of ideas, where the Internet is the battleground.” So be it. Let’s debate the film’s primary cornerstone, the first and foundational clause of the Remix Manifesto, which is that “Culture always borrows from the past.” Is that true? Let’s look at what Jefferson said about ideas:

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. – Thomas Jefferson

To be fair to Gaylor, let me initially point out that the entire ReMix Manifesto, and certainly the ideology that undergirds it, is actually borrowed from Dr. Lawrence Lessig, who is a professor at Stanford Law School. Lessig develops the thesis in his book, Remix: Making Art & Commerce Thrive in the Hybrid Economy. Lessig is prominently featured in the film and Gaylor does not shy away from his support of Lessig’s thesis.

Now back to the premise that “culture always borrows from the past.” Without getting too far down the path towards the logical fallacy of drawing a universal conclusion from purely inductive reasoning (as Gaylor does in the film), such a conclusion is, at best, probable, and not definitive. Further, it is only probable if one can assume the truth of the premises used to support the conclusion, for the instant a person can find but one example of an contradicting premise – i.e., in this case an example of something that does not borrow from the past – then the conclusion must be flawed.

Can we find such an example, or are King Solomon and Dr. Lessig correct? Is there no original thought? I personally have a hard time accepting this premise. Spawning original ideas or creating an original thought is, in my humble opinion, what separates us and truly defines us as a species. Sure, the human species uses words, notes, colors, shapes, etc. as the building blocks of its ideas. In that sense, yes, we are using “the past” to create, at least in some fundamental sense. But if you think about it, you’ve heard the old postulation that if you put 50 monkeys in a room filled with typewriters they are statistically incapable of creating a work of Shakespeare simply by striking out random characters on the page and even, perhaps, hitting upon a string of a few words every so often! This illustrates the proposition that the mere existence of the building blocks does not negate original nor creative thought.

King_SolomonEvery now and again, albeit perhaps rare, a human being has a spark of an idea: something is invented or created – something original and unique – that changes, even if only in a small senses, the very nature of life for all humans that follow. It is these original thoughts that propel us forward toward the destiny that is mankind’s, affected forever by the new idea. What it must have been like to be around in the days when the first human species began to formulate language. Creating symbols, be it words or drawings, that communicated their thoughts to another human being. To have been present when the first rudimentary tools were developed to perform the tasks necessary to sustain one’s life in a hostile environment. In the film, Gaylor makes the point that Gutenberg’s invention of the printing press occurred during a time when the “public domain” flourished. His use of this example is, in this case, ironic, since the printing press can truly be defined as one of those creative bursts of unique ideas that only come along one is a few millennia. Since that invention, perhaps only the creation of the Internet has affected the world as much as Gutenberg’s original thought.

So, with these examples, I ask what part of the past did they build on? One might argue that language “borrowed” from the idea of communicating through gestures. Another will say that Gutenberg incorporated language and writing and therefore borrowed from the past. But only in the most general of senses can one seriously maintain that these remarkably useful and unique ideas sustain the principle that “culture always borrows from the past.” I maintain that these are examples of those brilliant moments in human history when someone has that flash of an original idea – whether inspired by God, by his or her muse, by hallucinogenic means, or by heartburn – and creates something that is uniquely and totally new, something that does not, in any substantive sense, borrow from the past. In that moment, we witness the origins of an idea. Perhaps more importantly, when that original idea is expressed in a tangible format, we see the origins of a copyright in the U.S., a copyright that is protectable as a limited monopoly for the life of the author plus seventy years.

In that last conclusion lies the crux of the problem. Lessig and Gaylor make their proposition in the context of trying to solve a perceived problem with current copyright laws: because the length of protection has been extended, there are fewer works going into to public domain and therefore fewer ideas from which to borrow. As a result, “artists” like Girltalk who use pre-existing copyright sound recordings to “mash” together and “create” new songs have fewer popular songs to work with.

In Remix, Lessig says that this results in the criminalization of copying ideas and that, therefore, we should deregulate amateur creativity and decriminalize file sharing. In his words, “chill the ‘control freaks.’” This is where Lessig jumps in to save the day with his “creative commons” license, which uses existing copyright concepts to allow an author to “issue” a license allowing anyone to freely use his or her work, with the only requirement being that of attribution. Ironically enough, Lessig has copyrighted his own books and has, to date at least, not issued a creative commons license for Remix! Now who’s the control freak?

In regard to this issue of works no longer falling into the public domain, while it may be true that extending the period of protection has the effect of slowing down the process, the fact is that our forefathers, primarily Thomas Jefferson, James Madison and Charles Pinckney, clearly anticipated and struggled with the concept that “ideas should spread freely” – as Jefferson says in the quote above – but nonetheless built appropriate safeguards into the copyright provision of the Constitution (Article I, Section 8, Clause 8), providing that Congress may protect the works of “authors and inventors” for “a limited time.” While one can argue, perhaps, that the period of a “limited time” has been grossly exaggerated, one cannot argue that the public domain concept has been abolished.

Frankly, as I see it, giving up on the concept of original thought is not the foundation upon which we as a society should build a debate against the current construct. We should cling to that concept, for it is in that moment – that origin of an original idea – that persons can distinguish themselves from the past, not borrow from it. It is at that moment that our culture is propelled into the future. It is at that moment, I believe, that we are truly alive.