Supreme Court Deathmatch: Aereo vs. The Entire Broadcast Network Industry

For the last six months, a friend of mine has relentlessly tried to get me to ditch my Xfinity hookup and replace it with Aereo, an online TV subscription service. To hear him tell it, it’s the greatest thing ever invented - immediate and live access to broadcast news, sports, and TV shows from the big 10 networks such as NBC, CBS, ABC, FOX, PBS (no cable channels though), all for a measly $8 a month. I think I’ll wait though. I’m happy with my yesteryear technology and I derive a certain amount of comfort from mindlessly flipping through hundreds of channels I’ll never watch. More importantly, Aereo may not even exist in six months. That’s because tomorrow the Supreme Court will hear oral arguments in the case of American Broadcasting Companies, Inc. v. Aereo, Inc. And if Aereo loses, according to its own CEO, the company is kaput.

For those who don’t know, Aereo is a startup that takes television broadcasts from networks and retransmits them to you live via the internet. You can also store these broadcasts in a cloud-based DVR, all for the cost of two cups of coffee. As it turns out, even though you’re paying Aereo, Aereo is not paying the networks; it's just ripping these broadcast signals out of the air and streaming them to you. That didn’t make the networks too happy, so they banded together and sued Aereo for copyright infringement.

This isn’t an easy case and I don’t envy the justices the amount of work they'll have to even understand the technology at play (read this article if you want to know how behind-the-times the SCOTUS really is). Ultimately, this case turns on whether Aereo’s retransmission of broadcast television constitutes a “public or private performance” of copyrighted works. Private performance is perfectly legal, like when you buy a DVD and show it in your home. Even if you invite 100 friends over to watch, you’re safe. But let’s say you rent a theater and charge for admission - that would make the performance public, and that becomes copyright infringement.

In this case, the networks argue that Aereo’s actions constitute public performance because:

1. Aereo streams “live TV” to a wide variety of subscribers;
2. Aereo charges fees for its services;
3. Unlike other retransmitters, Aereo doesn’t pay licensing fees to the networks for permission to broadcast their content.

In opposition, Aereo argues that it does not transmit “to the public.” It transmits only to its paying user base. Furthermore, the choice about what gets retransmitted at any given time is made by the subscriber, not Aereo. Some lower courts have already sided with Aereo, but if I’m being totally honest, I empathize with the networks, even though siding with a corporate copyright holder gives me the willies. Creating and broadcasting content is back-breakingly hard and terrifically expensive. Even some of those low-budget reality shows for third-rate cable channels that look like they were shot on iPhones… oftentimes they have budgets in the tens of thousands of dollars per  episode. And there are lots of working-class content creators behind those shows. Remember, most people in the entertainment industry aren’t millionaires; they’re regular people working paycheck to paycheck, relying on a steady stream of work from networks and studios to pay their bills. It’s easy to think of the producers and directors and say “who cares?” But the people who get hurt first and hardest are the below-the-line talent: the grips, boom operators, location managers, scouts, production assistants, etc. What will happen to those jobs if the networks believe that pouring money into original content is no longer a profitable business model? And if you’re one of the networks, do you want to continue operating in an industry where it’s permissible for competitors to poach your signal and rebroadcast your content without owing you a fee for your trouble?

I don't know what's going to happen, but in a corporate-friendly court like this one, I can see the Supreme Court buying an argument that Aereo’s continued existence will irreparably harm the bottom lines of not just the networks, but the big telecoms like Comcast and Time Warner (soon to be a single world-killing behemoth). I don’t want to see Aereo go down because the use of technology to better peoples' lives is an intrinsic part of the American ethos. But I also don’t want to see a wholesale dismantling of the entire entertainment industry (alarmist I know, but still possible).

I’ll update this post with some thoughts after Tuesday’s oral arguments. In the meantime, I’m going to stick with my cable hook up, and I’ll tell my friend to  start budgeting for cable again if Aereo goes down the poop chute.

The Tale Of The Lady Who Was Asked To Waive Her Moral Rights By Her Client [UPDATED]

A client asked me to review a contract given to her by a potential employer. It was a fair contract, offering her a good salary and a very generous profit-sharing arrangement if any of her projects generated income. Despite the beneficence of the employer, I told her not to sign the contract unless a small, but important provision, was removed. In fact, my exact words to her were, "Run. Run like hell." It was a single sentence near the end of the agreement that caused all the trouble:

Employee waives all moral rights to her work, including, but not limited to [list of potential projects] and will hold Employer harmless for any and all uses of her work.

"Moral rights," such as they exist in this country, are a gift, and asking an artist to waive them is a slap in the face. Here's why. Under Section 106A of the U.S. Copyright Act, artists are granted two very specific protections.

1. The Right of Attribution. An artist has the right to take credit for her work regardless of who actually profits from the use of that work. It even applies if the artist sells off the copyright. For example, if you design a logo for a company and sell the copyright to the company, you still have the right to be named as the author and even display the logo in your portfolio

2. The Right of Integrity. An artist has the right to prevent anyone from distorting, mutilating, or otherwise modifying her work in such a way that could harm her reputation. For example, if you create a logo for a client who later wants to alter that logo to include an obscene gesture, you can prevent them from doing that since it could negatively affect your reputation as the creator of that art.

Moral rights in the U.S. are notoriously limited, applying only to artists who create visual works such as paintings, graphic design, sculptures, and still photographs. If you're a musician or a filmmaker, well then you're out of luck. In those situations, it will be incumbent upon you to specify in writing that you retain the right of attribution and integrity since our current laws aren't interested in providing that protection (there's a movement in Hollywood to extend moral rights to film, but I don't see that happening anytime soon). As a rule, moral rights are a foreign concept in the U.S. - economic rights take precedence here - and really only exist because the Congress of 1990 didn't want to look like a bunch of barbaric assholes in front of the Europeans, whose moral rights laws are far more robust (the Congress of today is burdened by no such concern).

But as limited as they are here, they're still a gift. And by asking my client to waive her moral rights, the employer was asking her to NOT TAKE CREDIT FOR HER OWN WORK. I don't know about you, but that seems really problematic to me. The law does permit you to waive your moral rights, but why would you want to? If someone asks you not to take credit for your work, shouldn't they have a damn good reason to make that request? As an artist, accreditation is the backbone of your business. It's how you sell yourself. I've known hundreds of artists in my career and I can't think of a single situation where they would have benefitted from waiving their moral rights. If you can, then you're smarter than I.

Luckily for my client, the employer agreed to remove that sentence and restore her moral rights. But my advice to you is the same as that I gave to her. If a potential employer/client/partner asks you waive your moral rights, ask them to reconsider. And if they won't, run. Run like hell.

UPDATE: I just want to clarify something here. While the U.S. Copyright Act only gives moral rights protections to visual artists, ALL artists have the right to take credit for their work and display that work in a portfolio unless that right is waived by contract. The main difference between the moral rights protections under the Copyright Act and these other moral rights is that visual artists can use the Copyright Act to recover statutory damages - as much as $150,000 for each infringed work. If you're an artist who's not covered under the Copyright Act, you probably wouldn't be able to recover very much if your right of display or credit was violated.

Ask Greg: When And Why To Use Copyright And Trademark Symbols

Q: When am I required to to put a © next to my work? If I don't do that, will I lose my copyright?

A: With one exception, you are never required to use a symbol to indicate your ownership over a copyright or trademark, and the failure to use those symbols will not negatively impact your rights. That's the nice thing about our intellectual property laws... your works of art and trademarks benefit from federal protection automatically and without reservation (minus any intervening contractual or infringement issues).

That doesn't mean it's not a good idea to use those symbols whenever possible, however. The symbols perform a really useful function; they tell the world that you are aware of your rights and will defend your ownership over your copyright or trademark. It seems like a small thing, but that notice can actually make a difference. Would you rather spend your time and money fighting off potential encroachers, or would you rather be building your network and running your business? Eagle-eyed readers may have already noticed the change I made to my logo recently. Do you see it? Hiding there at the end of the word "Artist" like a little blue guardian angel?

That ™ isn't there for aesthetic reasons. It's there to put the world on notice that I recognize the value of my brand and will defend it if necessary.

That's why using these symbols is worth it. So what do they mean and how do they differ?

Copyrights (©)

From the moment your work is created (that is, fixed in a tangible medium of expression), it is granted copyright protection. You don't have to register your work with the U.S. Copyright Office, and you don't have to use a © to demonstrate to the world that the copyright is yours. In fact, you don't have to do anything. And while there are definite benefits to registration, creating the work is all the burden you must bear. It's protected no matter what. Registration and denoting ownership through use of the © symbol are considered optional, and failing to do either will not cause you to lose ownership. That, by the way, wasn't always the case. Prior to 1988, failing to use the © to denote your copyright meant you lost it. Luckily, in a rare display of common sense, Congress changed that.

Trademarks (™ and ®)

Generally speaking, from the moment you use a logo, name, phrase, etc. in commerce, it is granted limited (regional) protection. You don't have to register your mark with the U.S. Patent and Trademark Office to get that protection (although registration will give you nationwide protection), nor are you required to use a symbol to denote that your trademark receives such protection. However, there are two symbols that denote trademark  ownership - the ™ and the ® - and both carry wholly different implications.

The ™ symbol functions an awful lot like the ©; using it is completely optional and registration of your mark is not required to use it. Likewise, failing to use a ™ does not strip you of your trademark ownership.

But with the ®, everything is different. It creates the lone exception I mentioned earlier. While you don't have to register your mark in order to use a ™, you MUST register your mark if you want to use an ®. You're also not allowed to use an ® if you don't have a validly registered mark. Doing so constitutes fraud, which can be punished by fine or even imprisonment (pretty rare, but still). If you do have a validly registered mark and you fail to use the ®, you most likely won't be able to recover money for any financial harm you suffer if someone does infringe your mark.

In my opinion, these symbols are a gift to you from the U.S. government. They're easy to use, they give you a lot of authority, and the burden on you to use them is very small. While they are optional, I can't think of a single reason not to use them.

What My Wife's Pregnancy And Derivative Works Have In Common

Three weeks ago, Steph and I decided to publicly announce that we're expecting our first child (September 1st, dear readers! Mark your calendars). It was crucial to us that the announcement be memorable and fun, and almost immediately, Steph hit upon the idea that the announcement take the form of a movie poster. I'm a film buff after all, so I think she knew I couldn't say no. My initial concept was to do a horror-themed one sheet in the vein of Saw, but Steph didn't like the idea of equating our bundle of joy with murderous psychopathy, so we quickly settled on another well-worn trope: the bright, colorful, goofy posters for terrible Matthew McConaughey romantic comedies like Failure to Launch, or How to Lose a Guy in 10 Days. The poster would feature us against a white backdrop, Steph as the beautiful, glowing mother-to-be, while I acted the part of the hapless but gold-hearted man-child.

Concept in hand, we hired a friend and professional photographer, Alex Jones, to shoot the poster. I wanted this thing to be perfect and my camera gear - an iPhone 5 - wasn't exactly going to cut it. I also knew Alex could deliver what I was looking for with minimal direction; he did my headshots last year and those were universally praised. As expected, Alex's poster shots went above and beyond. And after two days of experimenting with layouts, fonts, and colors, here's what we came up with:

The announcement was a big hit with friends and family and it was also a creatively satisfying experience. So why am I telling you this? First, I'm proud of the way the poster came out and I just want to brag a little. Second, I thought the poster was a good example of the weird world of "derivative works."

A derivative work is an adaptation, translation, or modification of an existing copyrighted work. You see them all the time without even realizing it. A film based on a book, a photograph of a sculpture, a cover of a song, an English translation of a Russian novel, a collage of cat meme pictures... all of these are derivative works. And with the internet providing unlimited free access to all sorts of visual content, it's become pretty easy to build a career as a derivative work artist. As a result, I frequently get questions from collage artists and photographers asking where the line is when it comes to using the works of others in their own work.

Unfortunately for them, that line is pretty clear; the only person allowed to make a derivative work of the original is the owner of the original! It's codified in our copyright law as an exclusive right, which means that if you author a derivative work without permission of the copyright owner, you could actually be liable for copyright infringement (exception: photographing or painting exterior structures like buildings and sculptures for commercial gain are generally not copyright infringement if the structures are easily visible from a public place). Without that permission, your only recourse is the fair use doctrine, which I've been pretty vocal about being a lousy way to get out from under a copyright infringement claim.

To complicate matters further, if you author a derivative work, you will own the copyright in the parts of the work that are unique to you, even if the derivative was unauthorized. The original copyright, of course, will still remain with the owner. This weird overlap can lead to some sticky situations with both parties claiming some copyright interest in the work and neither being able to profit off the other's creation.

So looking at our faux-movie poster, how does this dynamic play out?

1. The copyright to the original photograph rests with the artist. Contractually, Alex maintains the rights to all his photos unless he conveys them away. The only right I possess is the right of non-commercial display (meaning I can show people the photo but I can't resell it).
2. The modifications I made to turn the photo into a poster do not constitute copyright infringement in this case because I had permission from Alex - I hired him specifically to carry out a preexisting vision - and because I'm not making any money from it. If Alex had not given me permission (either explicitly or implicitly), I would have been liable to him for copyright infringement.
3. While Alex owns the copyright to the photo, I own a copyright interest in the overlay changes I made to transform his photo into a movie poster. Yes I can actually claim a copyright in the layout, the wording choices, the color choices, and the overall aesthetic effect of the piece.

You'll notice that a big reason I'm safe is because I'm not making money off the poster. That, obviously, is no consolation to a working artist who needs to make money to survive. So my blanket piece of advice for artists who rely on the works of others to create their own: do your best to get permission, use older work that's in the public domain, or avoid using preexisting work altogether. And if you're not interested in that, please talk to a lawyer to see if your intended use is protected by fair use.

Ultimately, I think your time is better spent creating new work rather than defending yourself on an infringement claim because you used old work.

[Author's Note: I don't actually know Judd Apatow and A.O. Scott.]

Here's My Take On the Tarantino v. Gawker Lawsuit Battle

A few people have asked my opinion on the Quentin Tarantino v. Gawker lawsuit and while I've been happy to lament it with friends and family, I hesitated to weigh in here because I wanted some time to get my thoughts in order. The situation, while comical, says something deeply unflattering about both Tarantino and Gawker, and it brings to light a previously unknown area of law that could have an impact that reverberates through the entertainment and media spheres for a long time. That time to think was also necessary to separate the wheat from the chaff - people have largely chosen sides based on knee-jerk reaction, rather than a thoughtful analysis of the facts (if you like Tarantino's films, Gawker is obviously the devil. If you dislike Tarantino's films, then he's a cry baby who may have instigated this whole fight). Now that I've had some time to process the situation, here's my take:

Whoever wins, we all lose.

For those not in the know, Tarantino sent an early draft of his new script, The Hateful Eight, to several actors he was considering for roles in the film. One of those actors (most likely Bruce Dern of Nebraska fame) gave the script to his agent. Somehow, the script leaked out of the agency and wound up on a website where it could be downloaded and shared by anyone. Angered by the leak, Tarantino spoke to Deadline to discuss how he was so pissed at the situation, he shelved the script completely and would make another film instead. A few days later, Gawker printed a story with the headline Here is the Leaked Quentin Tarantino Hateful Eight Script which contained a link to anonfiles, the website that was hosting the leaked script. Tarantino lost his shit and sued Gawker, claiming that it was liable for "contributory copyright infringement." You can find the complaint here, and you can read Gawker's response to the suit here.

Unlike traditional copyright infringement, contributory copyright infringement is a really muddy area of law, with very little case-law and precedent to accurately predict how a court would rule on this issue. Contributory infringement occurs when someone knowingly causes, induces, or materially contributes to copyright infringement. In this case, Gawker didn't host the script on its own servers, so it can't be liable for direct infringement. But because it linked to anonfiles and essentially told its audience, "here's where you can get it," Tarantino argues that it knowingly caused the infringement to be much worse than it otherwise would have been.

So did Gawker infringe Tarantino's script through contribution? That determination will rest on a lot of factors such as: the intent of the article's author and publisher, the likelihood of readers clicking through to the script, and the actual amount of traffic Gawker is responsible for sending to anonfiles. I honestly don't know how this will shake out, but here's what I do know... whichever way a court rules in this case, it sets a dangerous precedent for artists and web masters alike.

If Tarantino loses, it softens the rights of individual artists to protect their work from prying eyes. It allows websites to purposely drive traffic towards wrongfully obtained work without taking any of the blame for making the infringement worse. On the flip side, if Gawker loses, website owners will become responsible for content they don't host. No matter how you cut it, it creates a slippery slope that could negatively impact a lot of people, especially when you consider the fact that Tarantino filed his complaint in a California Federal District Court. Like New York, the California federal courts are extremely influential, and case-law coming out of those courts can set the agenda for the rest of the country.

To make matters worse, neither Tarantino nor Gawker have particularly good arguments. In the past, Tarantino has openly praised the leaking of his scripts, and his bluster is what made this story news to begin with (if he had handled it privately or through his lawyers, the script might never have leaked as quickly and as widely as it did). Gawker argues that because it's a news website, posting the link was newsworthy and thus, its actions are protected by fair use. But would a real news agency like CNN or BBC post the link? I doubt it. I also doubt that posting a link to an infringed script was the kind of thing the writers of our copyright laws envisioned when they came up with fair use.

I pray that the parties settle before getting to trial because this is not the case to determine such a deeply important issue.

Filmmaker-2-Filmmaker: Tip 5 - Why Public Domain Music Isn't As Cheap As You Thought

During my last year in film school, I got some bad advice.

I was working on my student film, the one that would have to play in the senior film festival. I had no budget and most of my actors and crew were generously donating their time to help me finish what I expected would be a masterpiece.

As post-production loomed, I began searching for music to score my film that fell within my budget - zero dollars. I was hoping to hire a local Providence-based band, but none of the ones I contacted were willing to do it for free. While I didn’t know much about copyright back then, I knew enough to avoid using popular songs and I didn’t want to get pinched for illegally downloading music (back then, Napster was all the rage).

Witnessing my plight, a friend suggested that I use classical music. His reasoning: the songs were composed hundreds of years ago and were in the public domain, so I wouldn’t have to ask anyone's permission and I definitely wouldn’t have to pay anyone for the privilege. Even better, classical music would give my film an air of sophistication, like 2001: A Space Odyssey. Because nothing demonstrates film school hubris quite like comparing your student film to one of the greatest pieces of cinema ever made.

Anyway, I followed my friend's advice and used classical music. The film played in the student filmfest and, while not exactly on par with Kubrick’s masterwork, it was moderately well received. I sent it off to some real film festivals and was rejected by all of them.

My friend was right about one thing: music composed before 1922 is not protected by copyright law. As a result, it lives in the public domain (meaning you can use it for any purpose without paying for it). But it was still bad advice. As I later learned in my producing career, where music is involved, not only is the song itself subject to copyright protection, the RECORDING of that song is also explicitly granted copyright protection. Which means that most music is protected twice under the law.

Why are recordings granted their own copyright protection? Because they're considered separate works of artistic expression. The copyright to a piece of music protects only the WRITTEN music and accompanying lyrics. The copyright to a recording rests with the specific audio RECORDING of the song. More than that, each separate recording - even if it’s of the same song - is granted its own copyright. A live recording of Eric Clapton’s Layla (like the famous MTV Unplugged version) has a separate copyright from the original recording which appeared on the 1970 album Layla and Other Assorted Love Songs because it's a completely unique and discrete interpretation of the song. And each of those copyrights stand apart from the copyright granted to the words and music as written by Clapton and his partner Jim Gordon.

Even if the music is in the public domain, copyright protection will still attach to recordings made after 1922. Just yesterday I was listening to a rendition of Fare Thee Well (Dink's Song) by Marcus Mumford and Oscar Isaac off the Inside Llewyn Davis soundtrack. The origins of the song can be traced to 1904, which means it predates modern copyright law. But a simple iTunes search will reveal dozens of recordings of the song by Bob Dylan, Pete Seeger, Dave Van Ronk, Jeff Buckley, Ramblin’ Jack Elliot, and many more. Each recording of the song gets its own copyright, even though the music and lyrics are no longer protected.

So the moral of the story for all you filmmakers out there: don’t do what I did and think you’re getting off scott free just because you chose some archaic piece of music that was popular during the Napoleonic wars. You’ll still have get permission from the owner of the recording's copyright.

Sherlock Holmes Enters The Public Domain And George R.R. Martin Does A Happy Dance: Why Longer Copyrights Might Be Better For Artists

Eight months ago, I wrote this article describing why it would be a good thing if Sherlock Holmes entered the public domain. The premise of the article was that long-living copyrights are harmful to artists; they stifle innovation and creativity and incentivize large copyright owners to pursue legal action against even the most minimal use of their copyright. By shortening the copyright lifespan, the monetary value of  properties like Sherlock, would drop, making them less appealing and thus motivating artists to create new works instead. Simultaneously, copyright lawsuits against infringers would drop, keeping smaller independent artists out of court.

Well, last week I got my wish. According to a federal judge in Illinois, Sherlock Holmes and all elements of his character created prior to 1922 are now in the public domain, which means that anyone in the U.S. (but not the U.K.) can write their own personal Sherlock fanfic and profit from it without paying the Conan Doyle estate it's traditionally hefty fee. So, happy Greg, right? Well maybe not. A strange thing happened on the way to victory... I sort of changed my mind.

George R.R. Martin's hatred of fan fiction had something to do with it. In a recent interview, Martin said this in response to a question about his refusal to license Game of Thrones for use in fan fiction:

 [O]ne thing that history has shown us is eventually these literary rights pass to grandchildren or collateral descendents, or people who didn't actually know the writer and don't care about his wishes. It's just a cash cow to them. And then we get abominations to my mind like Scarlet, the Gone with the Wind sequel. 

I've always admired Tolkien and his immense influence on fantasy.  Although I've never met the man, I admire Christopher Tolkien, his son, who has been the guardian of Tolkien's estate who has never allowed that. I'm sure there are publishers waiting in the wings with giant bags of money just waiting for someone to say, "Yes, go ahead, let's write Sauron Strikes Back." I hope I never see Sauron Strikes Back written by some third-rate writer who leaps at the opportunity.

His reasoning makes sense to anyone who has created something worth stealing: he wants to protect the integrity of his creation. Which is pretty easy while he's alive. He can approve or deny any licensing request that he thinks might dishonor the work. But what about after he dies? How do you ensure that the people who become guardians of GoT can protect it the way he wants? Part of the answer, I think, is to make copyrights indefinite, preventing them from entering the public domain. This would effectively turn them into business assets (much like trademarks). For some artists, this could be beneficial.

For the record, I still believe it's important to prevent unnecessary infringement lawsuits and spur innovation - remember, the Constitution supports the protection of copyright for the public good, not just for personal financial gain. For those reasons, I would still support shortening copyright durations. But Martin's words made it clear to me that these aren't the only issues that matter. Isn't artistic integrity something the law should be protecting as well? After all, artists don't just create for the money or recognition. They are driven to create because they have something to say. If an artist can protect the integrity of the work over time, that gives the work greater meaning. Conversely, if copyrights are shortened, the meaning behind the work suffers. For Martin, shorter copyrights would mean those "third-rate writers" would be granted unfettered access to GoT that much sooner. You can see how unappealing that would be for him.

Martin's not alone either. In the late 90's, Disney was on the verge of losing the rights to some of Mickey Mouse's earliest films. In order to prevent them from entering the public domain, Disney lobbied Congress to extend copyright durations. Their efforts paid off in 1998 when Congress passed the Copyright Term Extension Act (referred to derogatorily as the Mickey Mouse Protection Act), which extended the lifespan of all copyrights in the process: individual copyrights were lengthened from life of the author plus 50 to life plus 70, while works of corporate authorship were extended from 75 to 120 years. Time, however, catches us all, and Disney's copyrights will start expiring as early as 2017, so you can bet good money that they'll put the full-court press on Congress to extend copyright terms again. As long as Disney stands to lose its most valuable commercial asset, copyright terms will continue to grow. And the longer Disney has the power to lobby, the more likely copyrights will eventually gain perpetual life. In the not too distant future, Disney may have the right to Mickey Mouse in perpetuity.

But is this inherently a bad thing? I'm not so sure. There are numerous examples of long-term guardianships protecting the integrity of their properties. There's Christopher Tolkien refusing the license any of his father's work for film or television (the elder Tolkien sold the film rights to The Hobbit and Lord of the Rings back in 1969). There's the Conan Doyle estate ensuring that all filmic versions of Sherlock meet the owners' high standards. There's also the Broccoli family maintaining a tight control over the James Bond film franchise for the last 50 years. Say what you will about the quality of any individual work, but no one could argue that these owners have anything less than the integrity of the source material at heart.

In any legislation there are trade-offs, with different issues being important to different stakeholders. For some, protection against big corporations is the most salient issue; shorter copyrights make sense for those people. But for someone like Martin, who has created a sprawling world that is financially viable and popular enough to have imitators, it makes sense for the law to protect the quality of the work. That could mean Martin and his heirs own GoT forever.

So maybe, just maybe, I was wrong about the value of longer copyrights. But no matter what, this isn't an issue that can be settled in a single blog post by lil ol' me.

Ask Greg: How To Fight Back When Someone Has Infringed Your Work

Q. I recently discovered that someone was selling T-shirts featuring my illustrations. They've credited me as the artist on their website, but I've received no financial restitution and they didn't ask my permission. I want them to either pay me or stop selling the T-shirts altogether. What are my options for getting them to stop?

A. Let's be honest, you don't want to sue anybody. You don't have the time and you probably don't have the money, and even if you did, the effort and emotional toll it takes is astronomical. So before you go down that road, there are some things you can do to save time and money, and hopefully avoid court.

1. Send the infringing party a “cease and desist” letter. You'd be surprised how often people don’t even realized they're infringing someone else's work. Oftentimes, they think the work is in the public domain simply because it's available online. And even when people do infringe your work on purpose, an officious sounding letter is usually enough to make them stop. While you can always draft a cease and desist yourself, it has more teeth if it comes from a lawyer.
2. Negotiate! If you reasonably feel that the infringer isn't acting with malicious intent, give them a call and see if they're willing to talk turkey. You want to get royalties for all T-shirts already sold, and you definitely want to get a fee for all future sales. If this works, it's a classic win-win. They stay in business and you get a financial benefit. At the very least, you'll get a sense of their motives.
3. Use social media to rally people around your cause. This can be a surprisingly effective way to get public support and put pressure on the infringer to do the right thing. You may have heard this story about a graphic designer who wasn't paid for poster designs he made for Spike Lee's newest film, Oldboy. The designer sent an open letter to Lee recounting his abuses. This was a smart choice on the part of the designer. Even though Lee, like most directors, has no role in the marketing of his films (marketing is almost exclusively the domain of the studio), by going right to the top, the designer started creating groundswell. And if he can get Lee to go to bat for him, the pressure placed on the studio could be overwhelming.
4. Lastly, BE NICE, no matter how much of a jerk the other party is. That old saying about catching more flies with honey than with vinegar - it's absolutely true. I can't tell you how many times I've seen victims of infringement get swatted by a judge because they acted like unrepentant assholes. If you look worse than the guy who actually stole from you, you're going to lose, plain and simple. In general, when interacting with a potential legal adversary, you should follow my patented Famous Three Step Rule For Dealing With Infringers: First time be nice. Second time, be nice. Third time, be nice. You can always be direct, but politeness really can make the difference in your outcome.

If you do all of these and the infringer still won't pay you back or cut you in, it's time to sue. Call a lawyer and get that ball rolling ASAP (you have three years from the discovery of the infringement to bring a lawsuit). And if you have anymore questions, don't hesitate to Ask Greg.

Vince Gilligan Thinks Piracy Helped Breaking Bad, Turns Out He Might Be Right

Vince Gilligan, the genius/ creator/ writer/ director/ dark wizard behind Breaking Bad said this in an interview with the BBC last week:

If I’m being honest I see that the illegal downloading led to a lot of people watching the series, becoming aware of the series who otherwise would not have been... I see that in some ways illegal downloading has helped us, certainly in terms of brand awareness, so that’s a good side.

At first I met this statement with a heavy dose of skepticism. It's not exactly like Breaking Bad went unnoticed for the last six years... it was a monstrous hit, critically and commercially. A cultural touchstone, it's repeatedly mentioned in the same breath as The Wire and The Sopranos as one of the greatest modern television shows of all time. Whatever awareness could be raised by illegal downloads surely pales in comparison to the massive word of mouth and AMC's multi-media marketing push.

But instead of writing another anti-piracy screed like I did last year, I decided to do some research. And against the odds (and my own prejudices), I discovered that Gilligan may in fact be right. Two years ago, the Swiss government commissioned a study measuring the effect of copyright-infringing downloading. The result? Piracy actually does help copyright holders (take that Congress)! The study, released by the European Commission Joint Research Centre, found that users who download content illegally are actually 2% more likely to pay for content because the money they save on illegal downloads ends up getting spent on other content. Additionally, they often use the illegal downloads to sample material before they buy, helping to spread the word about lesser-known artists in the process. According to the researchers:

It seems that the majority of the music that is consumed illegally by the individuals in our sample would not have been purchased if illegal downloading websites were not available to them. The complementarity effect of online streaming is found to be somewhat larger, suggesting a stimulating effect of this activity on the sales of digital music.

It's worth pointing out several caveats: (1) this study is considered highly controversial in a lot of circles, (2) the focus of the study was on music downloads and did not extend to other digital content, and (3) all of the subjects in the study were Swiss citizens who are generally WAY more law abiding than Americans.

Even still, it's a tempting theory. While I'm not convinced illegal downloads could raise much awareness for a show with the brand recognition Breaking Bad has, you can see where this might benefit artists who don't have the reach or cultural cache that Gilligan commands. After all, with increased awareness comes greater financial success.

But that doesn't mean Gilligan approves of piracy:

The downside is that a lot of folks who worked on the show would’ve made more money, myself included. But you know, like with most things, there’s two sides to the coin. We all need to eat, we all need to get paid, and I get paid very well, I can’t complain.

Which is exactly why pirating content is not something I can ever really support. Sure, Gilligan and stars Bryan Cranston and Aaron Paul are making bank no matter how often the show is stolen (the finale was illegally torrented half a million times), but most of the people who worked on that show aren't making Cranston-money. They're working stiffs like you and me. Money not spent on a show they worked hard on is money they don't get to see. And most artists don't ever get to work on something as high profile as Breaking Bad, so they'll feel that loss all the more.

Here's what I wrote last year on this topic and even in light of the Swiss study, I stand by these words:

[W]hen you legitimately purchase copies of movies and music, you’re telling the artist that you support her. You put her in a place financially where she can continue generating the stuff you love.  When you steal a movie or piece of music, you’re telling the artist that you don’t care if she can make a living and you’re threatening her ability to continue generating that work.  Help me keep artists working and put a stop to the torrenting.

Copying is Copying: Homages, Tributes, and Fanboyism Are Dangerous For Artists

As far as the law is concerned, copying is copying, no matter how noble your intentions.

I'm an artist too, so I get it. We are constantly bombarded by stimuli, so it's hard not to be inspired by those images. And it's even harder to avoid relying on those images when we make our own work. My advice is to try even harder than that. Because, unfortunately, copyright holders (often, but not always, large corporations) are less inclined to care about why you copied them and more inclined to sue you into oblivion if that's what they feel is required to protect their work.

Case in point: last month, a Boston-based company called Autonomie was sued for trademark infringement by Converse for making a sneaker so similar to Converse's iconic Chuck Taylors that it's nearly impossible to tell the two apart (the shoe is actually manufactured by a British company called Ethletic). Here are the shoes side-by-side.

But this isn't just ripping off for the sake of ripping off. Autonomie is all about using eco-friendly materials and fair trade practices so as to produce "high-quality garments at competitive prices to consumers that wish to make purchases with a social and environmental impact without having to sacrifice their own personal style, or break their wallet."  That's a pretty good reason, right? Too bad. The law says this is trademark infringement because there's a high likelihood that the two shoes would be confused with each other, thus steering profits away from Converse. In trademark law, this is called "blurring." Autonomie's reasons may be noble, but noble doesn't go very far in court.

Remember the whole Robin Thicke/ Marvin Gaye copyright infringement situation that came up a few months ago? Thicke was so inspired by Gaye's work that he wanted to make a song that sounded like something Gaye himself might have written. The end result was that Thicke's fanboyism got him in a legal tussle with Gaye's family.

The reasons for copying rarely matter from a legal perspective. There are very few mechanisms in the law that allow it, and they only apply in certain situations. Fair use, is the most commonly used exception but the only way to find out if it protects you is to get sued, go through months of litigation and thousands of dollars in legal fees, and find out in court. As far as I'm concerned, getting sued and winning is the same as losing because the amount of time and money required to defend yourself would never be recouped.

Copyright holders don't care what your reasons are. They only care if your work will take money out of their pocket. So don't pay homage. Don't pay tribute. Don't use the copyrighted works of others unless they give you written permission. If they don't give you permission, be creative and find another way to express yourself. Be original always in all ways, because copying someone else, even if your intention is to honor them, is the quickest way to get legally smashed. And instead of making art, you'll be paying off copyright fines.