You Should Offer Licensing Options To Potential Infringers

“How do I protect my work online?”

I get asked that a lot. So much in fact that I’ve given half a dozen presentations on it over the past eighteen months. I could probably build my whole law practice around that one question and make a decent living at it. When you consider the ubiquity of the internet and the ease in which work can be taken and repurposed without your knowledge, you can see why it's such a pressing issue. Last year I partially addressed it in a blog post about licensing work to people who'd already infringed it. The gist of my argument was that instead of getting mad, maybe there was a way to get paid instead. After all, if the infringement has already taken place, why not try to make a few bucks off it?

But you don't have to wait until you've been infringed to make a deal. You should try and do it before the infringement even takes place. How? By offering licensing options to your work right up front!  As you'll see below, doing this is so simple you're going to kick yourself for not thinking of it sooner.

1. Be easy to contact. Wherever your work shows up - your website, Linkedin, Behance, Pinterest, Facebook, etc. - place your contact information in a conspicuous place. A lot of work is taken without permission because a potential buyer couldn’t get in touch with the artist, so this feels like an easy fix. Offer more than one way to get in touch so the buyer knows you're actually reachable. Some artists are understandably hesitant to give out their phone numbers, but as long as a buyer can reach you by email and at least one other method, you're good to go.

2. Tell them you're ready to do business. Put some variation of the phrase "Licenses available upon request. Contact for more information." clearly and visibly on any website where your work appears. This clearly communicates to the buyer that you're ready to do business. It's also good as an evidentiary CYA move if you ever had to prosecute an infringement case down the road. It's much harder for an infringer to argue in good faith that he didn't know your works were available for purchase if you state it in big bold letters. If certain pieces are not for sale, make sure they are clearly labeled as such. For example, "This image is not available for license or sale."

3. Be ready to do business when the requests come in. Have sales or licensing options ready to go. If the piece is for sale, indicate in writing whether or not the copyright (and all attendant ownership rights) is conveyed along with the actual physical piece. The buyer has a right to know if he’s getting the copyright or not. If you go the licensing route, you can use pre-existing licensing agreements like those at Creative Commons or you can make your own. If you choose the latter, be sure to include these terms:

1. The amount of time the buyer can use your work;

2. The purpose of his use;

3. Whether or not he can make derivatives or copies;

4. Whether or not he can distribute your work or its derivatives;

5. The amount of the work he can use;

6. The geographical location he can use your work in;

7. Whether or not he must credit you as the author;

8. Any fees, payments, royalties stemming from the use.

This isn't an exhaustive list of licensing terms (and they will vary depending on your comfort level), but it's a good start and should cover most scenarios. If you're savvy enough at programming, you can even create functionality in your website that allows buyers to license your artwork automatically, without ever needing to contact you.

Obviously this strategy isn't going to apply to all of you, and it won't always works either. Sometimes people just want to steal to see if they can get away with it. That said, it's my experience that most infringers don't realize they're doing something wrong and are more than willing to parlay with you if they only knew how. So give them the option. It's easy to do and the results could be an uptick in your business.  Considering how little effort this strategy requires, isn't it worth a shot

Advice From Attorney > Info From Internet > Nothing

Happy Friday dear readers! I had a post planned this week about the whole GamerGate debacle sweeping through Twitter like wildfire, but then my wife went into labor on Monday night and long story short, I'm a dad now and all my energy has been spent taking care of my wife and infant daughter Hannah.

But in the very little downtime I've had at the hospital, I found this chart online and thought I'd share it with you. It lays out in fairly clear terms when you can and cannot use someone else's copyrighted work. I initially hesitated to share this chart because while the information is generally correct, the law in reality is never this clear cut, and reducing it to a simple phrase or image can be a dangerous proposition. As I wrote last October:

I like to give away lots of free legal information on this blog because I think it’s important for artists to have a basic understanding about how the law interacts with them. I was once in your shoes. I’ve had my ideas stolen, my copyrights compromised, and been in situations where a little legal knowledge could have saved me from a jam or two. At the same time, you can’t cut lawyers entirely out of the equation simply because you possess that knowledge. Legal information without analysis is just raw data. It can’t give you advice or insight. It can’t examine your specific situation and provide you with synthesized options based on that data (i.e. just because you know the fair use factors doesn’t mean you know how to apply them). No two situations are the same and everyone’s needs will differ depending on a variety of unforeseeable factors. Only a properly trained lawyer familiar with your circumstances will be able to navigate that minefield.

This is a reasonable view and I stand by it. Law without anlysis is just data, and data without analysis is useless. That said, I'm sharing this chart anyway because some of you may not have the finances to hire a lawyer, and having some information is better than having none. In fact, I've whittled it down to a pretty simple formula.

Advice From Attorney > Info From Internet > Nothing

So hang onto this chart and use it when you need to, but just remember that this is only part of the story and it may not apply to your situation. Be careful out there and call me or another qualified attorney if you have any questions about what this all means.

I'll be back soon with my thoughts on GamerGate and some other recent news items. Until then, Cheers!

If Art Can Be Used To Harm Artists, What Are We Fighting For? A Brief Rant

With all the injustices going on in the world (Ferguson, Gaza, Ebola, Boko Haram, Net Neutrality, the Emmy's being held on a Monday night, etc.) it's hard to gin up outrage over anything else... but my parents didn't raise me to be a quitter.

Today's outrage comes courtesy of Ultra Records. Last month, Michelle Phan, a Youtube Makeup Tutorial Star (a profession that certainly did NOT exist ten years ago), was sued by Ultra Records for using the music of some of its artist in her videos; specifically, the music of Kaskade, Late Night Alumni, Deadmau5 and Haley. Ultra claims that Phan used over 50 songs without their permission, an allegation her spokesperson denies.

If the story stopped there, I would be plenty mad. Even if Phan did use the songs without permission, why is it necessary for a corporation to gang up on her and drag her into the legal system? Why are they suing her for $150K for each infringed work, the maximum statutory amount (totaling over $7 million in damages)? In most cases, a simple cease-and-desist would have been enough to resolve the issue. By suing her for that much money, Ultra isn’t even trying to disguise its greenlust. It’s the equivalent of going pheasant hunting with an elephant gun.

What pushes this case into the realm of the absurd is that Kaskade, one of the musicians Phan is accused of infringing, doesn’t support the lawsuit. In a series of tweets, he’s come out in support of Phan, stating that “[c]opyright law is a dinosaur, ill-suited for the landscape of today’s media.”

Maybe he’s right. It's ridiculous that someone like Phan could be held accountable for millions of dollars for infractions that amount to little more than being a music fan. And whether or not a court finds her liable, the mere fact of being dragged through this process can be debilitating for someone like her who is trying to find a modicum of success on her own. What can be changed? How can copyright law better address a world where media is much easier to use and reuse? I don't really have an answer, although I suspect that disincentivizing lawsuits and shortening copyright term limits are ways to get the ball rolling.

Look, I know it’s hard out there for independent record labels. Being in the business of art is difficult enough in the best of times, and we are not in the best of times. When you factor in illegal torrenting, uncountable revenue streams, and strong-arm tactics by larger companies, you don’t always think straight. And the result is that labels like Ultra and organizations like the RIAA end up brutalizing the little guy in a show of force that that far exceeds the initial infraction.

That’s why I spend so much time railing against these large corporate copyright holders on this blog. Copyright law was never meant to be used a bludgeon to ground out the petty infringers, although that’s how it’s often used. It was designed to make society better and, while we’re at it, throw a little patronage to creators of valuable intellectual property to show them that their toiling hasn’t gone unnoticed.

I know this doesn’t seem like a big problem in light of everything going on in the world right now, but I think it’s yet another clear indicator that our priorities in this country are far afield: focusing on the privilege of the big over the rights of the small. And if we don’t pay attention to this problem, it’ll just get pulverized by something bigger and louder. In times like these, I like to remind myself of a quote that’s often misattributed to Winston Churchill. And even though he didn’t say it, I think it perfectly sums up the battle before us. When Churchill was asked to cut arts funding in favour of the war effort, he simply replied "then what are we fighting for?"

My Take On The Great Monkey-Selfie Copyright Controversy

Happy Friday friends! No doubt you've all heard about the Monkey-Selfie heard 'round the world and I thought I'd weigh in briefly with my take. In 2011, nature photographer David Slater set up his camera in the Indonesian rain forest to photograph the indigenous fauna. When he turned his back for a moment, a black crested macaque took the camera and started snapping selfies. That photo (possibly the greatest selfie in history) was later placed up on Wikimedia Commons and Slater sued to have it taken down, claiming copyright infringement.

Wikipedia, the company behind Wikimedia Commons refused to remove it, however, because it argues that Slater doesn't own the copyright and thus cannot enforce his claim. According to Wikipedia, the monkey took the photo, and because a monkey cannot own and enforce a copyright, the photo is owned by no one and exists in the public domain. Slater of course disagrees, and has spent thousands fighting this case. He even claims that it's even starting to ruin his business.

The case has sparked an interesting discussion online and I've seen many arguments in favor of Slater (it was his camera equipment, he did all the legwork required to get the photo and pressing the shutter was only the final step in a long series of steps that he, and only he, participated in, etc.) and as many against (ownership of the equipment doesn't impute copyright ownership, Slater didn't press the shutter and that's all that matters, there was a lack of intent and creativity on Slater's part, etc.). There's a rundown at Slate from a bunch of law professors explaining why Slater will lose.

Far be it from me to quarrel with a law professor, but I think Slater will win this fight for one very simple reason: copyright laws in this country prioritize financial reward for creativity above other rights. Chris Sprigman, a law professor at New York University, says in the Slate article that, “copyright’s not there to reward people for their labor—it's to incentivize people to create new books or poems." While I agree with Professor Sprigman that the original intent of including copyright protection in the U.S. Constitution was for the benefit of society as a whole, I don't think the legislative history really supports that argument very well these days... especially as far as corporate copyright holders are concerned. The Mickey Mouse Act extending copyright term limits is a great example of Congress prioritizing economic rights over moral rights.

And boy oh boy, if Slater wins, there's a ton of money to be had in monkey selfies. When you consider the fact that the only party in this case that could be financially harmed would be the monkey (who, for obvious reasons, cannot represent himself or be represented in the case), there's really no downside in granting the copyright to Slater. All the rest is window-dressing that a court can easily rationalize away.

What do you think?

Weird Al and Parody: Why It's Better To Ask Permission Than Beg Forgiveness

There’s a saying that’s become popular in recent years: "it’s better to beg forgiveness than ask permission.” There’s a lot of appeal there for the Type-A, take-charge types and I completely understand it... if you want results, just do it since apologizing after the fact will be easier than fighting through red tape beforehand. Grace Murray Hopper, a former Navy admiral coined the term and you can see why. She was a career military woman and computer scientist and likely spent a great deal of time fighting through bureaucracy and institutional misogyny to get anything done.

In that context, the phrase has a lot of cache. As a lawyer who advises artists, however, I think it's a one-way ticket to bankruptcy. I've said as much before, but I bring it up again because Weird Al Yankovic is back with his latest album Mandatory Fun, and as always happens when Weird Al resurfaces, people are amazed to discover that he asks permission from other artists to parody their songs. Here's a snippet from a recent NPR interview with him:

NPR: Is it true that you don't need permission to do a parody of a song?

Weird Al: Legally, I say it's a gray area. I could get away with not getting permission, but I've never wanted to get away with that. I think it's more taking the high road to make sure that the artist feels like they're in on the joke. I want them to know that it is in fact an homage, it's a tribute. Like I say, it's more a poke in the ribs than a kick in the butt.

Not only is that an ethically sound practice, but it’s also correct from a legal standpoint. It’s generally understood in the entertainment world that parody - the art form Weird Al trades in - is considered fair use (i.e. it's not considered infringement under U.S. copyright laws). That's because a parody is designed to poke fun of a work of art rather than directly profit from it.

HOWEVER! That’s not the whole story. There are gray areas when dealing with fair use, and Weird Al gets that. He knows that parody alone doesn't give him unlimited permission to use someone else's copyright without permission. There are other factors weighed by the courts in determining if something is fair use, such as the commercial nature of the parody (i.e. is it financially profitable?), and the effect it has on the market for the work that's being parodied (i.e. does the mere existence of the parody cause consumers to stop buying the original work?). Depending on these and other factors, Weird Al knows that his work could, in some situations, be considered copyright infringement.

So he doesn't leave it up to chance and say "Whoops my bad" whenever he gets caught. He asks permission up front and if an artist refuses, he doesn't parody the work (here's a list of artists who refused to let Weird Al parody them). What Weird Al knows - and other artists out there would do well to remember - is that when your livelihood depends on using the copyrighted works of others, sometimes it's truly better to ask permission than to beg forgiveness. With money on the line, they may not be so inclined to forgive you.

The Supreme Court Kills Aereo Because It Found a Loophole

In the aftermath of Wednesday's 6-3 Supreme Court decision stating that Aereo was in violation of the U.S. Copyright Act, there arose in the tech world an amount of hand-wringing that would make Helen Lovejoy green with envy.

When the decision came down, most media outlets proclaimed the demise of the innovative tech start-up. Others lamented the decision and lashed out at the bipartisan group of justices that wrote for the majority. Still others rushed to argue that no, the decision didn't mean the end of Aereo. A friend of mine, a subscriber to Aereo's service, is in the midst of the traditional five stages of grief. In a single day, he's cycled through denial, anger, depression, and now he's onto the bargaining stage, devising solutions to save the company so convoluted you'd need to divert physicists from the Large Hadron Collider to fully comprehend them.

The dust still hasn't settled and it will be a while before we know if Aereo can survive, but here's what we do know: Aereo used a series of antennaes to pull live broadcast signals out of the air and stream them to its subscribers. It did this without paying licensing fees to the networks who own the shows, unlike other broadcasters. Aereo argued that it was merely an equipment provider and not a broadcaster and therefore didn't need to pay licensing fees (hence why their rates are $8 a month as opposed to Comcast's $99). Six of the SCOTUS justices didn't buy it. Roberts, Ginsberg, Kennedy, Breyer, Kagan, and Sotomayor found that despite the technological back-end that made Aereo so unique, Aereo still functioned largely as a broadcaster of copyrighted material as defined by the 1976 amendment to the Copyright Act. They also said that Aereo was a "public performer" of the copyrighted materials. Taken together, these issues meant that Aereo has been violating copyright law since its inception two years ago.

Clearly, a lot of people don't agree with the decision, and this TechDirt article explains why. In essence, they claim that the SCOTUS used a "looks like something that infringes test" to get to their desired result. They looked at the surface and, without really understanding how the technology works, decided that it must be a broadcaster. Critics of this approach cite this as another example of the anti-technology, intellectual laziness that's hung over this particular line-up of justices for some time.

The critics are right in one regard: in determining a case, the justices should always try their best to understand how a particular technology works. Simply relying on a "looks like" approach is not the way the highest court in the land should operate.

But I'm not convinced that's what happened here. I've read this decision cover to cover (unlike other SCOTUS decisions which can be punishingly long, this one clocks in at a reasonable 35 pages). I wanted to hate the outcome. But to my eyes the justices did in fact understand Aereo's technology. They simply weren't convinced that the technology stood far enough apart from those of more traditional broadcasters to exempt Aereo from having to comply with the Copyright Act. This decision doesn't read like a "if it looks like a broadcaster then it must be" approach. It seems much more logical and considered than that.

However well considered the intentions though, bad law can still come out of it. Whether the Court intended it or not, the decision effectively gives cable companies and broadcasters - powerhouses that already lord over us - even more authority to run the board however they want. As I write this, Fox is using the three-day old Aereo decision as leverage in its legal battle against Dish Network.

It also raises a question of legitimacy, as do most of the recent decisions from this heavily partisan Court. In the decision, the justices state that the decision is narrowly tailored towards rectifying Aereo's specific actions rather than attacking technological advances by other start-ups in general. In other words, it looks like the Court is singling out Aereo for punishment, rather than deciding the law. And it does raise the question as to whether this case was really about technology, or whether it was a facade for something more sinister: loopholes (Scalia says as much in his dissent). Aereo thought it found a technological loophole so that it wouldn't have to pay licensing fees to the networks like Comcast, Time Warner, and AT&T have to. Was this a case of revenge? Were the broadcasters expecting the Supreme Court to act as a bludgeon for their interests? If so, that's the bigger concern.

Star Wars, George Lucas, and How Copyright Term Limits Can Affect The Death of The Author

May is an important month for Star Wars fans. Episode IV, A New Hope premiered on May 25, 1977, ushering in the age of the summer blockbuster. This past Sunday was May 4th, affectionately known by fans as Star Wars Day basically so they can all walk around saying "May the Fourth be with you" with impunity. This year, May has taken on extra significance; just last week, Disney released a picture of the cast for the new Star Wars film, Episode VII to be directed by J.J. Abrams and starring a bunch of exciting young actors like Oscar Isaac, John Boyega, and Lupita Nyong'o. It will also feature the original trilogy cast members, including notorious grump, Harrison Ford.

It's all very exciting and even though I've never been a big Star Wars fan, I've been thinking a lot lately about poor old George Lucas. His reputation never recovered from the terrible prequel trilogy and the much hated "Special Editions" of the original films. I have to believe it was the fierce and unrelenting backlash that finally convinced him to sell Lucasfilm to Disney. While he is publicly staying involved with the new films as an elder statesman, it's pretty clear he's washed his hands of the whole thing. And why not? The fan community all but called for his head on a pike after Lucas made those changes to the original films, often with terrible CGI, and some of which altered the thematic tenor of the story (i.e. making Greedo shoot first).

Of course, Lucas had the right to do anything he wanted to those films, including turning Boba Fett into a New Zealander for some reason. The copyrights, and all rights of revision, were his. As far as the law is concerned, that's all that matters. The fans, on the other hand, saw Star Wars as theirs, and many of them used ugly phrases like "George Lucas raped my childhood" to illustrate their feelings on the matter. But I think beneath all that unhinged terror, there's a legitimate argument to be made that after a work is published to the world, the work is no longer the sole property of the artist. And while that concept is not codified in our laws, maybe it should be.

I recently wrote a blog post stating that indefinite copyrights may not be such a bad thing. My argument echoed that of George R.R. Martin, who believes that the creator and his or her heirs are the best people to maintain the integrity of the work over time. I think he has a point... a point that is unfortunately undercut by creators like Lucas who monkey around with their works after they've been released. So how do you codify it? Well, shortening copyright terms would be one way to go. [Yes, that old chestnut. You didn't think I was done harping on it, did you?]

Right now, individual copyrights last for life of the author plus 70 years, resulting in upwards of 170 years of protection. What message does that much protection send? That the copyright owner has complete control over his work for several generations, regardless of the effects of the work on the culture at large. By shortening copyright terms to something like a flat 75 years, Congress would send a very public message to artists and creators that after a certain period of time, the art no longer belongs solely to them; it belongs to the people. And lest you call me a socialist, remember that progress for the betterment of society was one of the original purposes behind copyright protection. While Lucas had the legal right to change his films, he made those changes without much regard for the cultural impact those movies had. The way our copyright law is written today, he shouldn't have to. But the law can't exist in a vaccuum, separated neatly from the realities of life. Star Wars had an immense impact on countless people; you can't just ignore that. Remember that Lucas is hardly the first franchise creator whose ownership interest was outstripped by the fanbase. J.R.R. Tolkien rewrote huge portions of The Hobbit long after it had been published so it would better fit in with the darker tone of Lord of the Rings. His publisher had to step in and prevent him from rewriting it entirely, afraid that The Hobbit's fanbase would be turned off by changes to the upbeat tale.

I'm a strong believer in the death of the author, and I think that altering the length of copyright ownership is a logical extension of that. But if I'm being honest, I'm not as sure as I once was on the merits of shortening copyrights. For every George R.R. Martin who convinces me that creators should have indefinite control of their work, there's a George Lucas who clearly demonstrates that taking the work away from the author may actually protect the art. Luckily, I have this space where I can exercise those uncertainties. What do you guys think?