Are icons safe from copyright claims? One artist thinks not, Takashi Murakami is sending shakedown letters, through an agent, asking you for you to cough up $500 a year to use his artwork and an icon.

A member of a poker site called twoplustwo named Mephisto used one of Murakami’s images as his 80×70 pixel avatar on the site’s forum.  Here is a copy of the letter he recieved:

Beat: “Your avatar is copyrighted

Hello, we are very complimented that you are a fan of Takashi Murakami’s art, however, the artwork image(known as And Then, And Then And Then And Then And Then Blue version, also known as Mr. DOB) you are using is copyrighted and therefore requires a license for private use, images used as avatars in forums are defined as private use and therefore you would need to purchase a license to use this image yearly.

The cheapest possible license costs about $498 USD or ¥50,000, if you cannot or are not interested in purchasing a private license, please take this off as your avatar, as Takashi Murakami’s artwork has to be licensed for private use.

We were contacted by one of our company colleagues who happens to post at this website, this is the only form of contact I have with you therefore I had to contact you within this form!

If you cannot purchase a license, we ask you kindly to please take this image off as your avatar, you are free to keep this artwork image on your computer, but private use is restricted and copyrighted.

Thank you, and I hope you will take this into consideration as I know myself this can get very unnecessary!

-Yusuke”

This over active licensing bothers me for three reasons:

#1 the fee asked is insane $500 for the use of an icon is more then it cost to play WOW for 2.5 years.

#2 the use of the icon does not compete with the market for the original work, in fact it increases the market value.  When I see interesting icons on LJ or forums if often sends me looking for the original source.  Icon use like this is basically free advertising for artist.

#3 The letter ignores fair use, there is a strong argument that noncommercial use use of a low quality cropped image may be fair use. Unfortunately it would cost thousands of dollars to take this to court and find out. (I do not see this as a strong fair use case, but possibly a borderline case)

I would support an author that wants attribution added to the icon or a link back, but obscene licensing fees only makes me want to avoid the artist and their work. My advice to Takashi Murakami is to fire his over active rights police before they hurt his fan base.

Links:
Careful With Those Avatars, You May Get A Shakedown Letter via TechCrunch by Michael Arrington

Forum post letter was taken from

Molly Van Houweling - Professor - Berkeley Law

Copyright 101 and the need for CC.  Basics of work for hire.
Here are three other options:
CC0 - public domain
Reform of copyright law
Expanded fair use

Derek Slater - Google Policy

Jason Schultz - Samuelson Clinic - EFF
Use your rights to make good law. We do not always have to be on the defensive.

Brian Carver Professor - Berkeley i School

Great talk on Jacobsen v. Katzer I will try and get the slides to put up for more information on this landmark case check out.

Q: How would you rewrite copyright?

Molly: Change back to opt-in.

Jason: Remove statutory damages for most of copyright

Brian Carver: different types of copyright for different types of works

Derek: Blanket License…

Q: @Derek: There was talk of Google using technology to scan videos for copyrighted video or sound and remove them without any inspection of fair use, preemptively. Is this happening, will this happen?

Kind of, we give owners an option to give a fingerprint of there work and then options for what to do with that work when we find it, but we give users the option to claim fair use or legal use in response to an infringement claim.

Q:How do we practically expand fair use rights as students and activist?  What options are out there beyond direct law suits?  Is it significant that Israel has adopted fair use and Japan is considering it?

Brian Caver: Be creative, give use work we can litgae and make good case law.

Derek: Education is great be careful about rewriting laws.

Jason: Bring fair use education to the classrooms, counter the RIAA and the MPAA propaganda and teach people about fair use directly.  People need to learn about their rights and use them before they lose them.

Q: Is DRM dead?

A: it keeps coming back (Brian Note: zombie!)

Brian Carver: It is not dead it is moving to hardware.

Molly: there are some good uses of rights management such as identifying authors.

Seeing the emphasis on using your rights was great. I am skeptical of law suits as the answer.

PS the internet here is a little slow, I will update with more photos later.

Judge Robert Patterson ruled today that the H.P. Lexicon infringes J.K. Rowling’s copyright in the Harry Potter series, while rejecting a finding of fair use.  Judge Patterson granted an injunction preventing the distribution of the Harry Potter Lexicon while stating that the distribution would cause Rowling irreparable harm as a writer.

Basically the court found that the “Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide.”

My favorite and possibly most backward line from the opinion is:

“While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled.”

If you want to encourage these works then why rule against it… ?  Well the answer is not a legal one it is an economic and emotional one.  Once you get beyond the basics of the legal claims in this opinion you will notice something very disturbing.  The court simply accepted many of Rowling’s bogus economic arguments and fell for her argument that the Lexicon is hurting charity.  This court simply fails to grasp two things:

1.   Answer speech you do not like, including commercial speech, with more speech not less

2.  Monopolies are bad for the public interest - in this case they discourage the creation of new works, and expand copyright control beyond the work for purely anti-competitive reasons.

The court claims that “publication of the Lexicon would also result in harm to the charitable organization … More concretely, publication of the Lexicon would cause irreparable harm to the sales of Rowling’s companion books, all the elements of which are replicated in the Lexicon for a similar purpose. Readers would have no reason to purchase the companion books since the lexicon supersedes their value” (emphasis added page 64) This is flawed in many ways:

1.  People will still buy official Rowling’s works simply because they are official, the Rowling approved brand sells books.

2.  Rowling’s own companion inherently has an advantage, she can add more information or facts making it better. Competition creates a need for innovation, by killing the lexicon the court is protecting stagnation and discouraging new creativity.

3.  People will buy the Rowling companion to support charity even if it is the same as the lexicon.

4.  More products on the market create more interest and more hype for official goods.

This opinion is very disappointing.

Read the 68 page opinion for yourself:

Potter Decision Rowling v. RDR Books 9-8-08

Other posts:

WSJ coverage of HP Lexicon Case

One of the things I love about being in a SFFC chapter is the cutting edge new media that other members of the group point out. This video is a great Alice in Wonderland remix with an audio track composed almost entirely of samples from the movie. Very creative and a bit addictive enjoy:

Here is one of the more insightful comments on the video from kalaresh:

This is a really good example of why copyright laws and the organic development of art are ultimately incompatible. This is what artists have always done and are supposed to do — have a conversation with the culture by transforming existing popular art into something new. What makes this original isn’t the material but the perspective on it. You can’t really own art or an idea about it any more than you can own the ocean. It’s really a shame art like this is illegal.

This comment illustrates the tension between copyright law and creativity.  I hope the writer is ultimately wrong though, fair use should protect this type of creative remix.

PS: The audio track is downloadable at Last FM (blue download link when you get there)

Until recently I was under the impression Mikey was still in copyright. There has been some scholarship that shows that the original copyright notice of Mickey Mouse with regards to Steam Boat Willie is defective and thus early versions of Mickey Mouse are in the public domain!

Even small flaws in formalities can equate to a lose of copyright under the 1909 act. Here is the basic argument from the LA Times:

Brown (a litigant against Disney) went searching for flawed formalities — and found one. It was on the title card at the beginning of a “Steamboat Willie” cartoon (pictured above) that had just been rereleased on a 1993 LaserDisc honoring Mickey’s 65th birthday. It said in full:

“Disney Cartoons

Present

A Mickey Mouse

Sound Cartoon

Steamboat Willie

A Walt Disney Comic

By Ub Iwerks

Recorded by Cinephone Powers System

Copyright MCMXXIX.”

The key was location of the word “copyright” in relation to the name “Walt Disney.” There were two other names listed in between — Cinephone and Disney’s top studio artist, Ub Iwerks. Arguably, any one of the three could have claimed ownership, thereby nullifying anyone’s claim under arcane rules of the Copyright Act of 1909.

Brown leapt on the ambiguity, asking the court to reconsider its ruling against him on grounds that Mickey Mouse was out of copyright. But he was too late. Without ruling on the merits of Brown’s arguments, the judge tossed it aside as untimely.

It was not the end. Debate over Mickey’s copyright status simply changed settings.

Arizona State University professor Dennis Karjala, a Brown acquaintance, suggested that one of his law school students look into the claim as a class project. Lauren Vanpelt took up the challenge and produced a paper agreeing with Brown. She posted her project on the Internet in 1999.

Here is Lauren Vanpelt’s Conclusion:

Disney first created Mickey Mouse on a sketch pad while traveling from New York to LA in 1928. Those sketches, which were protected under a common law copyright, were the basis for the Mickey Mouse motion pictures. They also provided the basis for the images printed on the Mickey Mouse Club materials sold to theaters. Disney published its common law protected expression without the proper copyright notice attached to the films and on the club materials. The statute of limitations to rectify that omission has long since elapsed, as has the statute of limitations for Disney to file any infringement claims based on that omission. As a result of its omissions and inaction, Disney forfeited its copyright claims to Mickey Mouse. Mickey has fallen into the public domain where all are free to copy and enjoy him.

I recomend readings Lauren’s full article. It makes me want to remix some Mickey Mouse music videos with CC licensed music.
Link:
Link to full LA times article

They may be a little cryptic. I will be giving some public talks on my time at CC later this year for the Seattle University Public Interest Law Foundation. Feel free to ask me any questions in person it was a great summer.

I still need to find an easy way to synchronize slides to a talk and post them online. If you have any ideas please let me know.

The International Olympic Committee (IOC) filed an automated copyright takedown yesterday with YouTube for hosting video of a Free Tibet protest at the Chinese Consulate in Manhattan Thursday night.

This is one of the worst ways that the DMCA and copyright can be used. Automatic procedures that allow for free speech to be censored cause irreparable harm. The video is clearly criticism as it depicts Tibetan monks being arrested and a parody of the Olympic logo being used as handcuffs. YouTube automatically pulled the video in response to the takedown claim.  I hope YouTube or the video producer sues the IOC for abuse of the takedown procedure.

The video has been posted to Vimeo and is up at this point:

NYC Chinese Consulate Projection Action 08.07.08 from Students for a Free Tibet on Vimeo.

The Trademark Blog, which is written by Martin Schwimmer a very internet literate TM lawyer, asked What Should IP Owners Do In A Scrabulous Situation?

This is a very important question and one that needs to be answered not just by lawyers but also by users. It is important to protect your marks on and offline, but not at the cost of the associated good will. Hasbro chose one of the worst options both from a business and PR perspective.  Hasbro saw that the unofficial Facebook app Scrabulous was very popular. Hasbro spent 6 months developing its’ own app and then when it launched it used legal threats to remove Scrabulous from Facebook.

Hasbro was attacked by hackers shortly after launching the official version and forcing Scrabulous offline.  To a digital native the reaction makes perfect sense.  Hasbro is punishing innovators that created a market online and likely increased the popularity of the game both online and offline. The innovators did extremely valuable market research while creating a community for Hasbro, and Hasbro is repaying them by quashing them in the process of monopolizing the market.

In a Web 2.0 world, one filled with fans that help you, you need to reward them not fight them for creating communities and new markets.

Here are my reactions to the question posted on The Trademark Blog:

Q: If the Agarwalla Brothers (the creators of Scrabulous) had approached Hasbro two years ago with a proposal for a FB version of Scrabble, what likely result?

A: Hasbro would have ignored them and possibly taken the idea while never giving them any credit. Have you tried sending Apple an idea, they send you back a lawyer drafted letter that looks like it comes from the mob. My understanding is that Apple eventually apologized, but once that PR damage is done it is too late.

Q: If Hasbro were to pay the Agarwalla Brothers millions, what likely result?
A: This is the right move hands down. You offer a buy out at a reasonable price.(it does not have to be millions) Then only if the infringing innovator is not reasonable you use the law as a last resort.

Q: If Hasbro had brought this action in January, 7 months prior to having its own version up and running, what likely result?
A: Hasbro would have lost a lot of user, but by waiting Hasbro is clearly trying to free ride off the innovators. This double standard of using fans then stepping on them only angers fans.

If you have comments join the conversation at The Trademark Blog

Before the free culture movement even existed:

Mockingbirds are the true artists of the bird kingdom. Which is to say, although they’re born with a song of their own, an innate riff that happens to be one of the most versatile of all ornithological expressions, mockingbirds aren’t content to merely play the hand that is dealt them. Like all artists, they are out to rearrange reality. Innovative, willful, daring, not bound by the rules to which others may blindly adhere, the mockingbird collects snatches of birdsong from this tree and that field, appropriates them, places them in new and unexpected contexts, recreates the world from the world. For example, a mockingbird in South Carolina was heard to bend the songs of thirty-two different kinds of birds into a ten-minute performance, a virtuoso display that served no practical purpose, falling, therefore, into the realm of pure art.

- Tom Robbins, Skinny Legs and All, 1990

Having read that, can you honestly feel that the law ought to ban outright artists like Girl Talk and sound advice? We are strangling the innovative, willful, daring mockingbirds of our time.

Crossposted to Civil Disobedient