Washington Lawyers for the Arts has invited me to speak on copyright licensing panel later this month.  The talk will be at 4Culture, 101 Prefontaine Pl S, Seattle, Washington 98104 on Tuesday, September 22, 2009, Noon – 2:00 pm. The other speaker on the panel is Nick Mitchell of Hughes Media Law Group and the moderator is Jefferson Coulter who blogs on copyright at Copyright or Wrong.  This should be a good talk with lots of time for Q&A.  The registration is only $10 for students and artist, hope to see people there.

Here is the full announcement from WLA:

SEATTLE – Copyright is the primary means of protecting an artist’s rights in his or her works. However, understanding the nuances of copyright law and the implications the law has on using others’ works, or allowing others to use yours, can be daunting, and has led to increasing criticism of the U.S. copyright system as a whole.

In 2001, Creative Commons was established with the goal of making it easier for people to share and build upon the work of others, and it has since developed a variety of model licenses that can be used when licensing one’s works. In this presentation, attorneys Jefferson Coulter, Nick Mitchell and Brian Rowe will discuss Creative Commons licenses and their use in the arts.

The presentation will begin with a brief discussion of copyright law and copyright licensing, and the policy considerations that inform copyright law in the U.S. The discussion will then turn to Creative Commons, with an examination of the reasons Creative Commons was established, what Creative Commons licenses are (and are not), why you may or may not want to use them, and important things to consider if you do. A question and answer session will follow.

DATE:
Tuesday, September 22, 2009

TIME:
Noon – 2:00 pm (registration begins at 11:30, brownbag lunches welcome)

LOCATION:
4Culture
101 Prefontaine Pl S
Seattle, Washington 98104

FEE: In advance: $35 Attorneys and Paralegals; $10 Artists and Students. At the door: $40 Attorneys and Paralegals; $15 Artists and Students

REGISTRATION:
To register, visit Brown Paper Tickets, http://brownpapertickets.com/producer/3042 , or phone 24/7 at 800.838.3006. To pay at the door, RSVP to Washington Lawyers for the Arts at 206.328.7053. Please note that the event is subject to cancellation; visit http://www.thewla.org/ or call 206.328.7053 for more information.

MORE INFORMATION: To view the full event information, select this link.

In 2000 the Manhattan law firm of what appear to be over aggressive IP attorneys representing Hasbro wrote Randy Cassingham a “cease and desist” letter for Get out of hell card he was selling. Eventually they had Randy add the source disclaimer to the above card and the matter appeared over. Fast forward 9 years:

The same law firm appears to have amnesia:

We recently became aware that you are offering for sale “Last Chance – Get Out of Hell Free” cards and stickers on your website at www.goofh.com that depict the famous MR. MONOPOLY® character and are obviously derived from the MONOPOLY® “Chance” card.

The MR. MONOPOLY® character is the copyrighted property of Hasbro, and also has source-identifying significance as a trademark. Your unauthorized copying of the MR. MONOPOLY® character constitutes copyright infringement … and also violates the federal trademark laws … by creating a likelihood of confusion with respect to Hasbro’s authorization or sponsorship of or association with your activities. Your unauthorized use of the MR. MONOPOLY® character is also likely to dilute its distinctive quality and hamper its ability to function as a source-identifying [trademark]….We therefore demand that you immediately cease and desist from any further use of the MR. MONOPOLY® character, remove the cards and stickers from your website, and provide us with a written assurance that in the future you will refrain from any further unauthorized use of the elements and characters of the MONOPOLY® property trading game.

To assist Hasbro in determining the harm that has been, [sic] we demand that you furnish us with information concerning the length of time that you have sold the infringing cards and stickers, the number of units that have been sold, and the total revenue you have received to date. We will then be in a position to discuss monetary compensation for your unauthorized use.

Here is a little on the history of Monopoly from Wikipedia:

The history of Monopoly can be traced back to 1904, when a Quaker woman named Elizabeth (Lizzie) J. Magie Phillips created a game through which she hoped to be able to explain the single tax theory of Henry George (it was supposed to illustrate the negative aspects of concentrating land in private monopolies). Her game, The Landlord’s Game, was commercially published a few years later. Other interested game players redeveloped the game and some made their own sets. Lizzie herself patented a revised edition of the game in 1904, and similar games were published commercially. By the early 1930s, a board game named Monopoly was created much like the version of Monopoly sold by Parker Brothers and its parent companies throughout the rest of the 20th century and into the 21st. The Parker Brothers’ version was created by Charles Darrow. Several people, mostly in the U.S. Midwest and near the U.S. East Coast, contributed to the game’s design and evolution. Read the full article

The strongest defense to an infringement claim here is a parody defense, which is part of fair use, followed by an estoppel defense. Estoppel basically stops a party form claiming or denying an argument on the grounds that is is unfair.  Given the previous stance by Hasbro that the disclaimer was enough this new demand is clearly unfair.

Does Hasbro and their lawyers have nothing better to do with there time…

Read the full story at This is True

This is great news from the WSJ :

After years of suing thousands of people for allegedly stealing music via the Internet, the recording industry is set to drop its legal assault as it searches for more effective ways to combat online music piracy.

The decision represents an abrupt shift of strategy for the industry, which has opened legal proceedings against about 35,000 people since 2003. Critics say the legal offensive ultimately did little to stem the tide of illegally downloaded music. And it created a public-relations disaster for the industry, whose lawsuits targeted, among others, several single mothers, a dead person and a 13-year-old girl.

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take.

Now they just need to put start putting resources into find new business models and we can work together.

Today we are out at University of Washington’s Law School. Here is the schedule for the day:

• Breakfast and Welcome from Dean of the University of Washington School of
  Law
• What you need to Know about Copyright – Robert C. Cumbow
• Law Workshops
• Parent Workshop
• Lunch and Introduction to FLI Mentors
• Mock Trial!

Note from Cumbow’s Intro to Copyright by Cumbow:

1. What is IP: The products of the mind.  Copyright, patents and Trademarks

2. What are the requirements for getting a copyright?  The work must be original and fixed.

3. Examples of copyrightable Matter:

• Literary works
• Musical works
• dramatic works
• pictorial works
• derivative works (translations, film from books, works based on other works)
• characters
• motions pictures & other A/V works
• sound recording
• pantomimes and choreographic works
• toys, games, dolls
• computer programs
• packaging design

4. Things that are NOT protected by copyright

• ideas
• facts
• titles (de minimis)
• slogans and other short phrases

5. Copyright Owner’s Rights

• Reproduce
• Make derivative works
• Distribute (including “first publication”)
• Perform publicly
• Display publicly
• Digital performance of Musical Work
• Authorize (license) any of the above

Question: Why do people give up these rights?

Answer: Often someone else can exploit that right better.

Note Brian:

Question: Does the license or transfer have to be in writing?

Answer: yes and no… No for Licenses. Yes for Transfers.

Question: when you license or transfer a work do you get royalties?

Answer: Maybe this is up for negotiation, you can write a contract that stipulates some from of royalty.

Question: If I license a work to someone can they license it to someone else?

Answer: it depends on what you grant in the license.

Question: is licensing or assignment better?

Answer: Generally speaking licensing is better as you retain most rights.  hanging on to your copyright

6. How do I get a copyright?

• Copyright is automatic! You already have one
• This is automatic

7. What is copyright registration?

• This is where you give the government notice that you have a copyright

8. Advantages of Copyright Registration

• cheep ($35-$45)
• Presumption of exclusive rights
• prima facie evidence of validity, ownership, originality
• Ability to bring infringement actions (to sue is court)
• Choice of actual damage or statutory damages + award of costs and attorney fees

PS: statutory damage range from $200 to $150,000

Question: If someone makes a t-shirt with my image and a quote from me is that a copyright violation.

Answer:

Question: many commercial companies have phrase or slogans are those protected by copyright?

Answer: No but this likely protected by trademark law.

Question: Can I use a picture, without the authors permission, I found online for scape book I am making for school?

Answer: Most likely yes, if your use is noncommercial, transformative and part of an educational activity it is likely to be fair use thus allowed

9. copyright infringement

• Unauthorized use of an exclusive right
• Federal Court has exclusive subject matter jurisdiction
• Elements of a prima facie case :

1. A valid, registered copyright
2. Copying

10. Defenses

• Time bared 3 year statute of Limitations
• Waiver/acquiescence
• The copyright is not registered
• the registration is invalid
• work is unprotected (ideas, facts)
• The work is not substantially similar
• Licensed (express or implied)
• The use was trivial de minimis
• Fair Use

11. Fair Use

• codifies divisional law (came from old case law and is now a statute)
• 1st amendment in the copyright law
• Use of copyright for criticism, comment, teaching, news

12. fair use 4 factors (from section 107)

• Nature of the use
• Nature of the copyright work
• Amount and substantial use
• Effect on the market or potential market

13. Factor 1 & 2

• Nature of use commercial or nonprofit educational, was it transformative
• Nature of work fact based or fiction AND published

13. Factor 3 & 4

• How much of the work did you use? did you take the”heart of the work?”
• are you harming the market value of a work

14. Fair Use: Right or Defense?

Both, the court recognize it as a defense but it is related to the 1st amendment

15. How can you tell?

• Before 1923 = not copyright
• Check the copyright office (but most works are not registered)
• Look for a copyright notice
• if unsure assume it is copyrighted

Question: Can you register copyright under 18?

Answer: maybe I am not sure.  you can get a copyright just by creating something.  You can probably register that copyright.

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)