No Credit For The Raven Boy: When The Work For Hire Doctrine Screws Over The Little Guy

[Author’s note: as with everything legal, I speak here in generalities.  Every case is different and if you have a specific legal problem regarding one of the issues I speak about below, you should contact an attorney right away.]

Last week, The Atlantic Wire posted this piece on 25 of the Most Wonderful Book Covers of the Year.  Each book mentioned was accompanied by an image of the book’s cover jacket and to my great delight, number 19, The Raven Boys by Maggie Stiefvater, was on the list.  This was a big deal for me because The Raven Boys cover was illustrated by my buddy Adam Doyle.  You can check out his original painting of the cover, as well as many of his other amazing works at his website.  I’ve known Adam for ten years and on top of being a damn talented painter and illustrator, he’s a great friend.  He’s the one who designed the lovely logo adorning this website.

Unfortunately, Adam wasn’t recognized in the piece as the artist of The Raven Boys cover.  In fact, none of the artists were credited for their work; only the authors and the publishers were named.  Adam pointed me towards the article and asked me my thoughts.  "Well," I pondered, "that sucks because every artist should get credit for the work they do."  In reality, there’s little money in being a professional artist, so credit is frequently the only reward.  I also know how hard Adam works and how seriously he takes his job, so it’s especially maddening to see him not getting the recognition he deserves.

The lack of crediting upset me, but I became especially uneasy when I noticed the article's comments section teaming with non-lawyers using terms like "infringement" and "breach."  Some felt that use of the images in the articles, without proper accreditation, was a violation of the artists' copyrights. But that argument actually wrongly combines the issue of accreditation (or lack thereof) with the issue of using of images against the wishes of the artists.

So first off, failing to credit the artist in an article praising the art is not legally actionable under any standard that I’m aware of.  It's bad form and maybe bad journalism (and frankly a little weird), but it's not a legal right to be credited as the artist of a particular piece of work. [I should note that at no point did Adam complain or even ask me for legal options.  He was just curious about my take on the situation.]

Secondly, there is no copyright infringement going on here. Here are two reasons why.

(1)  The artist most likely doesn't own the work.  Generally speaking, if you’re an artist and you create a work of original expression, the copyright belongs to you.  But what if you’re hired by someone to create a work of art?  That’s what copyright attorneys refer to as a “work for hire”, which in its broadest terms, means that the copyright is owned by whomever commissioned the work, not the artist hired to create the work.  The ownership of a work for hire is determined by the employer’s motive and desire, not the artist’s handiwork.

In this case, I would wager that most (if not all) of the artists were commissioned to design the book covers, meaning that the copyright is owned by the entity that hired them in the first place – the publisher.  This is especially important for artists to know because so often they assume "if I created the work, then I own it."  Not so.   Here's a tip: if you're an artist and you do a work for someone without a written or oral contract stating the terms or ownership, you should assume that you are not the copyright owner.  Artists needs to be aware of when their ownership over the work ceases because it can get them into trouble down the road (for example, licensing away rights to work they don't own).  In a case like this where the publisher is the owner of the book cover, it can do just about anything it wants with the image. Because of the work for hire doctrine, the artist has little or no say in the way that image is used.  That's the price of getting your work out there... relinquishing control.  Sadly, sometimes that means having to forego credit, even if it's rightly yours.

(2) Ownership aside, using the book cover images in the article is protected by fair use.  Fair use is a legal defense that allows you to legally use someone else’s copyrighted work without permission of the copyright owner.  Now fair use isn’t a get-out-of-jail-free card for every instance.  It can only be used in certain cases, like “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”  Fair use says that it’s sometimes okay to use another’s copyright if the purpose of that use isn’t profitable.  After all, without fair use, we couldn’t criticize books, TV, movies without being sued.  CNN would get sued every hour of everyday.  Fair use protects against that.

The Atlantic Wire is ostensibly a news outlet (and even if it isn’t, the article clearly falls under the criticism or comment exceptions) and because of that, the website would not be liable for copyright infringement because it displayed images of the book covers.  That's why it didn't need permission to use the images of the book covers.  It was under no obligation to seek the artists' permission or credit them for their work.

So there’s no legal recourse for the artists, but can they do anything else to remedy the situation?  Sure. Their best course of action is some form of activism, such as petitioning the article’s author to amend the article and repost it with the artists’ names.  They can negotiate with the publishers to have their names published on the front or back of the book instead of the inside jacket (easier to see and find).  They can even talk directly with the book’s author to be credited on the author’s website.  In other words, the legal system isn't going to work in their favor, but there are plenty of non-legal options worth pursuing.

What You Can and Can't Copyright

A few days ago, I was discussing this whole "Facebook Copyright Notice" ridiculousness and in that post I mentioned that your status updates were copyrightable.  That statement created a small stir (insomuch as I am capable of creating a stir) and since then, people have been asking me about what is and isn't copyrightable.  So I thought I'd quickly address it here.

You can copyright all "original works of authorship fixed in any tangible medium of expression."  U.S. Copyright Law protects, among others," literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture."  The list of works protected under the law is not exhaustive and is wide open to future forms of artistic expression not contemplated by the drafters of the law.  Here's what copyright law does not protect: "facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."  To get a better sense of how that works in the real world, take a look at this picture my wife snapped of me last year.

I'm sitting on the front stoop of my brother's apartment in Boston.  Now, the stoop itself is not copyrightable, nor am I, for that matter.  In fact, every "thing" you see in that photo - from my clothing to the keys I'm holding, to the flower arrangement behind me - none of that is copyrightable because they're all "facts" (they may on the other hand be patent protected, but that's an issue for another time).  However, the photograph containing all those things is copyrightable and is in fact the intellectual property of my wife.  That's because it is her "expression" of those facts and it is fixed in a tangible medium (i.e. photograph). [For the record, the photo was taken with Instagram and like Facebook, does not claim any ownership over content you create with it.  It merely takes a license to use and display your content for as long as you own an Instagram account.]

The same goes for other types of communication, like emails or interviews, that deal heavily in facts and are not often considered to be original works of authorship worthy of copyright protection.  However, generally speaking, both are protectable forms of expression.  While the facts contained within the email or interview are not protected under copyright law, it is the arrangement of those facts in a fixed medium (for an interview, a transcript or tape recording. For an email, well...an email) that gives it expression.  There's a good article here discussing the copyrightable nature of interviews.  I should note that the owner of the copyright to an interview can vary depending on the facts of the case.

If you ever find yourself asking if something you've created is protected by U.S. copyright law, just ask yourself:

1. Did I create this?
2. Is it something that can I show people (if it's digital, it counts.  Your expression need not be printed on paper)?
3. It is an expression of something?

If the answer is yes to all three, then you probably have a work that is protected by U.S. copyright law.  Of course, like everything else in the law, some of this stuff can change depending on the specifics of each individual case.  If you are unsure about whether something you've created is copyrightable, ask an attorney.

One last note: as a rule, there's no size limit placed on the work in order to qualify for copyright protection, which is why your two-line status update qualifies for copyright protection.  However, the smaller your creation becomes, the more you move out of copyright and into trademark territory (for example, a phrase like "You're Fired!" or even single words or names like "Superman" or "iPhone".  Logos and branding are also generally the purview of trademark).  In short, your scatological haiku is protected by copyright, but your friend saying "that's a spicy meatball!" is protected by trademark.

Your Copyrights Are Already Protected on Facebook

I was going to let this story slide, but it seems to be driving everyone into a frenzy - including some very intelligent people whom I respect greatly - so I thought I would take a moment to address it here. If you've been on Facebook anytime in the last week, then you've probably seen your friends posting this notice on their timelines:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention).

For commercial use of the above my written consent is needed at all times!

Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates...

Short version: Facebook is not seeking ownership of your copyrighted works, nor is it doing anything with your copyrighted works that you don't already know about. Posting a notice about it doesn't give you any copyright protections than you didn't already have.

Long version: I understand the talismanic purpose of posting something like that. If enough people do it, it functions like a protest against some of Facebook's more heinous sharing strategies; a preemptive strike against a company that seems to change its terms of service on a whim. But posting that notice is not legally binding. Let me state that again so that it is clear and definitive: posting that notice is completely, totally, and unequivocally useless from a legal standpoint. Here's why:

(1) As I've mentioned before, the moment you create a work of artistic expression, it belongs to you. You are the copyright holder and you are never required to declare to anyone that your copyright has attached to those works. By law, it attaches from the moment it is created.  If, however, you have reason to believe that your copyright has been outright stolen by Facebook or as a result of their practices, that's another matter for which you should seek legal representation.

That copyright covers photos, videos, drawings, writings... anything creative that you make. But copyright does not cover facts or ideas. So while your status update may be copyrightable, your relationship status, name, and other biographical information are not. That means Facebook can share that info without your consent. Furthermore, not all the content on your timeline is your copyright. For example, if your friend posts a photo on your timeline, then you are NOT the copyright holder unless you took the photo.

(2) The Facebook terms of service do not claim ownership over your copyrights, and they have not been changed to claim ownership over your copyrights. The Facebook legal terms page clearly states that:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.

Instead, Facebook has a license to use your copyrighted works for as long as you possess a Facebook account, but you can limit how much of your information Facebook shares with advertisers and other users through your use of the privacy settings.  And for the record, that's always been the case.

(3) By creating a Facebook account, you have entered a valid, legally binding contract with Facebook.  As a result, there are two effects. First, you cannot retroactively change the terms of a contract just because you don't like the terms.  In other words, you've agreed to let Facebook license your copyrighted works simply by signing up for an account and you can't rescind that term.  You can't plead ignorance to the terms either because in contract law, it is presumed that both sides know what they're getting into before they sign on the dotted line.

Second, Facebook owes you a duty to live up to their side of the bargain as well.  You've already agreed to let Facebook license your copyrighted materials, so it can't just change its terms of service to say "we now own all the material you previously licensed to us."  To do so would be a breach of contract.

But looking beyond the law for a moment, there seems to be a fear that Facebook can arbitrarily change its terms of service to dupe you into relinquishing your copyrights. Certainly Facebook can change its policy to make users sign away their copyrights but why would it? It would be a massive PR migraine, and considering the IPO debacle, Facebook isn't going to engage in an activity that puts its reputation in further jeopardy. If Facebook were to make a massive change like that to its user agreement, it would only apply to new users who sign up after the change is made, not to any of the one billion existing Facebook users.

(4) The fact that Facebook is publicly traded means nothing and has no bearing on the copyright ownership situation. As far as I can tell, "open capacity entity" isn't an actual thing and therefore doesn't mean anything.  Also, it's the "Berne Convention," not the "Berner Convention."

(5) Your copyrights are already protected, regardless of what Facebook does, but what about your privacy? I've seen a lot of people confusing the copyright issue with the privacy issue, but they're not the same. The copyright issue deals with things that you've already posted to Facebook and whether Facebook's use of your copyrighted works constitutes copyright infringement (it doesn't). Privacy deals with who Facebook can share that information with. I won't get into the privacy issue here except to say that you can't claim a right to privacy when you voluntarily place your copyrighted works  in a public or semi-public place, such as your Facebook profile. [Obviously this is a bigger issue, but since it's not at stake here, I'll save it for another time.]

So once again, don't bother posting a copyright notice on your Facebook timeline. All you're doing is wasting valuable space that could be better filled with kitten videos.

The Avengers and Copyright Reform

In honor of the most shoppingest weekend of the year, I'd like to discuss how The Avengers got me thinking about copyright reform.

You see, following the mammoth success of The Avengers this past summer, Marvel Entertainment (owned by Disney) planned to release a six-film box set just in time for the holidays that contained Blu-rays of The Avengers, Iron Man, Iron Man 2, The Incredible Hulk, Thor, and Captain America. The films would arrive in a package that replicated the metal briefcase used in The Avengers to carry the film's MacGuffin, the "tesseract."  Here's what it looked like:

Unfortunately for Marvel, the release of the box set was put on hold when German luggage manufacturer Rimowa GmbH sued for trademark infringement and trademark dilution, alleging that the silver briefcase for the six-movie collection was too similar to one of its products, and that releasing the box set would hurt its brand.  The good news for consumers is that while it won't be ready for your holiday shopping needs, the set WILL be released in April with new packaging and special features.

When I read Rimowa's complaint, I rolled my eyes at their claim of trademark dilution claim (they may have a good case on the infringement claim... but I won't use this space to weigh the merits of that argument).  "Here we go again" I thought.  "Another instance of one giant company wielding their intellectual property as a weapon against another giant company so they can squeeze out a few more pennies."  Then my next thought was "at least it's Disney getting sued and not some poor struggling artist."

As you know, I'm a big supporter of intellectual property protection, especially as it pertains to individual artists and creators.  But when the copyright holder is a multinational corporation, my support for protection becomes less absolute.  I don't like bullies and I especially don't like it when giant corporations use their copyrights* to trample over innovation, even if that innovation means some copyrights get infringed.  And to my surprise, a Republican staffer named Derek Khanna agrees with me, writing a policy paper on copyright reform that recently caused a stir.  In the paper, Khanna argues chiefly that our current system of copyright law actually harms the free market, hurts the consumer, and stifles creativity and innovation.  Khanna further argues that the powers to protect intellectual property granted to Congress in the Constitution were designed not solely to benefit the creator.  Rather, they were created to benefit the public, and creator compensation was just a way to fulfill that need.  FYI, the actual text of the Constitution, Article 1, Section 8 reads that Congress shall have the power:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Khanna recommends several fixes, most of which I agree with.  Expanding Fair use protections (basically, allowing more people to use copyrighted material for certain purposes without paying for it), lowering statutory damages (current damages can see you paying upwards of $150K for each infringed work.  Khanna argues that it's un-American to charge someone millions of dollars for downloading a few dozen songs), punishing false copyright claims (I've talked about this issue before), and significantly lowering the length of copyright ownership from "life of author + 70 years" to 14 years, renewable every 14 years while the author is alive.  Khanna's paper proved so controversial that 24 hours after publishing it, his Republican bosses removed the paper and issued a letter stating that the paper hadn't been properly vetted.  Which makes sense after all; the major media companies (who are also the biggest copyright holders in the world) are big political donors.

In the case of Rimowa v. Marvel, the stakes aren't very high for the average consumer.  People will get the box set they want eventually and if they can't wait, they can go out and buy the films individually.  Disney is going to be just fine... maybe a few million bucks poorer, but that's about it. The underlying issue here is larger than whether I can go and buy a cardboard case filled with movies.  It even goes beyond how much power our current copyright law grants to companies that can use those copyrights to bully the small artist and innovator.  The issue really boils down to whether companies have the same rights as individuals.  Should a company get the same rights I get under the law?  While Khanna's paper rarely singles out corporations as the biggest profiteers and abusers under our current copyright law, it's difficult to imagine that he wasn't thinking about them directly while writing it.   In one passage, he says that "Current public policy should create a disincentive for companies to continue their copyright indefinitely..."  The whole point of the paper seems to be this: copyright too often is used as a weapon to harm individual creators.  Disincentivize that by making copyright ownership less profitable for the corporate owner.  I wholeheartedly agree.  Actually, I will agree with and support just about any reform that takes the power out of the hands of the corporate copyright owner and gives it back to the individual creator.  Art should belong to the artist.

And if the end result is that I can get my Avengers box set sooner than later, then that will be a welcome side effect.

* For the record, yes I do know the difference between copyright and trademark.  For the purpose of this post, however, I'm treating them as interchangeable because they protect different types of the same thing... intellectual property.

147 Years Later, Lincoln is Still Relevant

[Author's Note: I discuss what may be considered spoilers below, so if you haven't seen Lincoln, or don't want to wikipedia the events surrounding the 13th Amendment's passage, read no further.]

There are two moments towards the end of Lincoln that made me realize why the film should be shown in every high school civics class.

In the first, Lincoln is surrounded by his advisers and they warn him that passing the 13th Amendment at the expense of a negotiated peace with the south is impossible.  In fact, it is tantamount to political suicide. By this point, however, Lincoln is exhausted from all the jabbering and naysaying and decides to put an end to it.  He doesn't want to hear why they CAN'T pass the Amendment, he wants to hear HOW they can pass the Amendment.  He wants to get his way, come hell or high water.  For only the second time in the film, Honest Abe loses his temper and thunders the most quotable line in the movie: "I am the President of the United States of America! Clothed in immense power!" The room goes silent and the point is clear: there is only one item on the President's legislative agenda that matters, passage of the 13th Amendment.

Shortly after, Lincoln goes to meet with the three negotiators hired by Secretary of State William Seward to get the 22 democratic votes needed in the House of Representatives to pass the Amendment. Lincoln not so subtly discusses with the negotiators - played by John Hawkes, Tim Blake Nelson, and James Spader - exactly how to "convince" these democrats how to vote across party lines in favor of the Amendment. Some of those convincing techniques involve bribery, threats, and favors to lame duck congressmen who weren't reelected (one settles for becoming the postmaster of his county).

Taken together, these scenes perfectly encapsulate the thematic bottom line of Lincoln: that politics is about getting things done, even if it means breaking the law to do it. Certainly the film has a lot more on its mind... bravery, morality, how little our political system has changed over the centuries. But make no mistake, Lincoln wants us to see how the sausage gets made, so to speak, and come away with the realization that lawmaking isn't a zero sum game. Just because your bill is righteous and takes the moral high ground doesn't mean it will pass automatically.  It is okay (and often necessary) to do a little evil in order to do a great good. Lincoln certainly believed that during his political life. The 13th Amendment, the largest progressive restructuring of America's social contract, happened mainly because palms were greased, wheels were dealed, and favors doled out... all at the order of the President of the United States (at one point, the vote on the Amendment is stalled when rumors arise that delegates from the south have come to seek a peace. Lincoln writes a note to be delivered to the Speaker of the House denying that such an event has happened... even though it is in fact true.  Lincoln's aide refuses to deliver the fraudulent note. Lincoln smiles, takes the note, tenderly holds the hand of his aide as if to say "I understand", and then gently hands it to another aide to deliver, who promptly sprints back to the Capitol building to deliver it.)

Today, the media saturates the American public with all the ups and downs, and ins and outs of our political system. As a result, we feel like we see a lot about how our laws are passed in this country. We understand that politicians vote along the party line and do not cross the aisle unless they are compelled to do so for a moral reason or because they've been "convinced." Lincoln argues this is indeed the case, but maybe that isn't a bad thing. Lincoln and his supporters have no compunction about buying the votes they needed in a flawed and messy system because they knew that the future of the country depends on the Amendment's passage. And while it's easy to get discouraged by the apparent lack of progress in this country, the film argues that America's system of passing and amending laws is painfully slow by design. It prevents zealots from taking over and changing the nation's social, political, and class structure on a whim. Real change takes a magnanimous effort to overcome the significant political inertia that's built up over time.  The result is this: when that change comes, it's here to stay.

Lincoln knew why the 13th Amendment was so important.  Like a canonball to the gut, it signaled that America was finally on the path towards achieving the heart and soul of the Declaration of Independence: "we hold these truths to be self-evident, that all men are created equal." That's a battle we're still fighting today, but at least we're winning it. Even still, Lincoln doesn't shy away from the messiness of that balancing act. In one scene, he discusses the 'slipperiness' of his interpretation of his powers. In yet another scene, he acknowledges to another character that he has no idea what's in store for the country or it's black population after the Amendment passes. But he knows that this is a battle that needed to be fought, and he was going to use every tool in his arsenal (regardless of its legality) to win that battle.

It's a pragmatic view. It's a realistic view. It's a view that understands morality has a place in politics, but should not get in the way of politics. It is completely unromantic and it cuts against the moral righteousness and manifest certainty we are taught about our country. And that's exactly why it should be taught in our schools. We need to have a much more sophisticated understanding of how our government works. Only then can we get our government to truly work for the people. Lincoln is a masterpiece because it doesn't coddle us and give us the 5th grade version of things. It's a masterpiece because it understands that we can still do great things, even when we do them wrongly.

The Artist Returns... With a Mission For His Readers

Dear readers, friends, and colleagues,

As you may have noticed, I have been absent from this blog for the better part of a month.  The reasons for this absence are myriad and range from interesting (a sudden and epic trip to Beirut, Lebanon) to uninteresting (Olympic-level laziness).  Suffice to say, I plan to make sure that such a lengthy absence occurs never again.  As things calm down over the next few weeks, I expect to return to the blog full-time and give regular updates at least once a week, starting now.

But that's not all.  Back in September, I briefly mentioned a project that I've dubbed The Artist's Bill of Rights.  The time has come to make this project a reality and friends, I want your help.

Here's the pitch: You're an artist, writer, musician, or filmmaker and you want to earn a living doing that.  But as an artrepreneur, you know you have to sweat the business stuff to make a living.  That's where the Artist's Bill of Rights can help you.  It will be a guide to all those young starving artists out there who can't afford to hire a legal team, but desperately need to know how protect themselves and their work.  And while the Bill of Rights isn't meant to be a replacement for real legal representation, it WILL at least give artists a primer on how to find the resources they need and give them a basic education in their legal rights.  When the Bill of Rights is completed, I will provide it FREE OF CHARGE here on this website.

So what do I need from you?  Two things:

(1) Just like the United States Bill of Rights, the Artist's Bill of Rights will have a list of Ten Rights that I think are the most important for artrepreneurs to know.  I've already come up with more than enough to get started, but I realize that my experience in the art world isn't sufficient.  So I'm asking every artist out there this question: what law or law-related issues do you wish you had been taught when you first started going it alone?

These questions can run the gamut from ownership of intellectual property, such as "if I'm commissioned to do a sculpture, who owns the copyright?" to payment questions such as "if a client doesn't like the work I do for them, can they withhold payment?"  They can even be business oriented questions such as "what is the best corporate form for my design business... an LLC or a sole proprietorship?"  As long as the question has a tangential relationship to the law, don't hesitate to ask me.  I will incorporate the most relevant ones into the Bill of Rights.

(2) Maybe you're not an artist, but I'll bet my paycheck that you know one.  Find him or her and direct them to this post.  We live in a precarious time, economically speaking, but there's no reason why someone with artistic talent and ambition shouldn't be able to make a living doing what they're good at just because they don't know how to protect themselves.

My hope is that The Artist's Bill of Rights will be a tool that artists - young and experienced alike - can use to level the playing field and even *gasp* make a living doing what they love without fear of poverty.

I can be contacted through the Get In Touch link at the top, or directly at thelegalartist at me dot com.

Also... did I mention that it would be free?  That's pretty important.  Tell your friends!

Harry Potter et al v. The Ministry of Magic a.k.a. Why Are There No Safety Regulations In The Harry Potter Universe?

Has anyone other than me noticed the stunning lack of safety regulations present in the Harry Potter universe? I'm a big fan of the films (to my wife's never-ending chagrin, I refuse to read the books for the sole reason that they are not movies), but ever since law school, I have not been able to get over the fact that Potter lives in a world where children are placed in a constant stream of danger. Thanks to the fine programmers at ABC Family, I've had a chance to revisit each Harry Potter film in greater detail and here are just a few samples of the myriad dangers to befall the students at Hogwarts:

1. A system of staircases that move suddenly and without warning (how many students have fallen to their peril because of bad timing?);
2. A giant three-headed dog kept in the castle behind a flimsy wooden door;
3. A competitive game (Quidditch) where children ride on brooms hundreds of feet in the air chasing after balls powerful enough to behead a person;
4. A nearby forest full of beasts such as murderous centaurs, murderous giants, and murderous GIGANTIC SPIDERS;
5. A contest (The Tri-Wizard Tournament) where teenagers are chased by fire-breathing dragons and attacked by violent mer-people in order to win the ugliest trophy I've ever seen;
6. A hateful witch (literally) who comes to school and tortures students by carving words into their skin;

Hell, in Chamber of Secrets, students are actually encouraged to square off against one another in their Defense Against the Dark Arts class. Now you can argue that the professor, Gilderoy Lockehart, was something of a doofus and quite possibly didn't realize that having children try to kill each other with wands wasn't a good idea, but remember that Severus Snape was also present and by his failure to object, ratified Lockehart's idiocy.

Also, at some point, the school hired a f**king werewolf as a teacher. And this kind of recklessness doesn't stop at Hogwarts... it's all over the magic world. Take the unfortunate case of Seamus Finnigan. He's a peer of Harry who's wand kept malfunctioning and blowing sh*t up in his face. Now maybe we can chalk this up to Seamus' incompetence as a wizard, but I think the blame more appropriately rests at the foot of Garrick Olivander, the man who sells each 1st year his or her wand. As an aged wizard, he should know better, yet he sold a clearly defective wand to this student. Had there been some safety regulations (perhaps a policy about practice wands for students not yet learned in magic), then Seamus might have avoided years of charred skin. If I were a wizard lawyer, I would take Finnigan's case and sue Olivander into an early grave. His actions are at best negligent and at worst criminally reckless.

When you think about it, this seeming lack of regulation really makes no sense. After all, the movies take great pains to show that the magical world has a government with a functioning court/ tribunal system. And throughout the films, characters pay lip service to wizarding law (such as the "no magic under 17" rule for which Harry was unreasonably prosecuted in Order of the Phoenix). So why does there appear to be no measurable safety regulation for children?

So let's do something here. Let's come up with some sample legislation. I'll get the ball rolling:

1. Minors under the age of 13 may only purchase wands with limited magical capabilities.
2. Minors under the age of 17 may not work with dangerous creatures without a consenting adult present.
3. Minors under the age of 15 may not ride a broom.

I'm open to your suggestions to make the Harry Potter universe a safe place for students to learn magic without fearing for their own death.

For Best Karma, Don't Torrent Copyrighted Works

When I was 20 years old, I became a thief of movies and music and I never even had to leave my house.  1999 to 20003 were boon years to what I call "stay at home theft" because you could download just about any song, TV show, movie, or computer program by means of peer-to-peer networks like Napster, Imesh, Aimster, and Kazaa. Any piece of copyrighted work was at your fingertips, and it was all free and for the taking.  From a copyright enforcement standpoint, those peer-to-peer networks were insidious: every time one of them died in a lawsuit, another took its place.  And when Limewire, the last of the peer-to-peer networks, finally went down in a hail of fire in 2010, it didn't matter.  It was replaced by a system of online file sharing known as "torrenting."

For the record, I have long since abandoned the practice of file sharing (and I do mean long since.  I haven't downloaded a file without paying for it since 2004).  I do not own a single pirated piece of software, MP3, or movie.  Every single song I had downloaded illegally, I have long since deleted and replaced with legal versions through iTunes.  I stopped it because, as I found work in the entertainment industry, I began to realize that people were putting long dedicated hours into creating something special; they shouldn't be rewarded by having that work stolen.  The file-sharing issue finally hit home when I visited my wife (then my girlfriend) at college and spoke to a friend of hers.  Upon hearing that I worked in the television industry, he proudly announced that he had illegally downloaded entire seasons of One Tree Hill.  My first thought was, "Really?  That's what you spent your time downloading?"  But my second thought was, "If you like it enough to download entire seasons of it (which were readily available on DVD at Best Buy), why don't you support the creators by paying for it?"

I used to think of torrenting as a harmless vice, but it really isn't.  Here are three reasons why:

1. Torrenting is illegal!  That's right, it's not just immoral, it's not just frowned upon, it is against the law to download a file that you didn't pay for through the regular channels of commerce. Torrenting without pay is stealing and is no different from walking into a Best Buy, sticking a DVD under your shirt and then walking out the front door. Even worse, if you're caught you could be liable for fines up to $150,000 for each willfully torrented work, or you could even face jail time.  So ask yourself: is that episode of Gossip Girl really worth it?
2. Torrenting results in the little guy getting ground into dust!  From a policy standpoint, torrenting files without paying for them results in the copyright holders - often large corporations - mercilessly suing file-sharers into oblivion.  Have you heard of Joel Tenenbaum?  He downloaded 31 songs from Kazaa and now owes various record labels $675,000.  I already wrote about how the large copyright holders have so much power that they end up going after people who have a legal right to use their copyright, but when people use copyrights for which they DON'T have legal permission, situations like this happen [short version: thirteen record companies sued Limewire for $75 trillion!! They ultimately settled for $105 million and Limewire went kaput].  Suing a poor kid for $700K is bad policy, even if he broke the law maliciously.  But because torrenting is such a huge problem, this kind of policy ends up being encouraged and even embraced by our lawmakers.  Hell, it's gotten so out of hand that record companies have even sued children and dead people for illegally downloading music.
3. Torrenting is bad for innovation!  When people download copyrighted files without paying, that results in studios and networks (who are literally paralyzed with fear over pirating) greenlighting only proven moneymakers. That's why every band sounds like Nickelback and every movie looks like it was directed by Michael Bay.  Those artists still make money despite the rampant pirating.  Think about it: the smaller something is, the harder it is to gain traction and the harder it is to become profitable.  If that work gets pirated from the outset, then the studios will make less money off an already untested product.  It's just easier to greenlight Transformers 9: Optimus Prime's Colonoscopy because no matter how many people pirate it, it will still make a metric sh*t ton of cash at the box office.  Take a look at this chart.  Eight of the top ten films of 2011 were sequels to established franchises and the other two were comic book adaptations. Ever wonder why most movies these days are sequels, prequels, remakes, reboots, and adaptations?  Established brands means that the studio will make some money, regardless of the pirates.

Here's what it boils down to: when 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.

Putting the ART Back in SMART: I Support STEAM And So Should You

From the inception of this blog, I placed one limitation on myself: I will only write about subjects related to the law. Even though I have written (and will continue to write) about a wide variety of entertaining subjects, this blog is first and foremost the cornerstone of my law practice and is designed as a legal resource for artists. But every once in a while a subject comes up that inflames the passion and ignites my hypocritical edge and today such a subject arose.

On Sunday I attended the tri-annual Alumni Council meeting at my alma mater, the Rhode Island School of Design. The major topic we discussed was STEM to STEAM, a movement designed to rebuild our educational curriculums around Science, Technology, Engineering, Art + design, and Math. STEAM is currently a big deal at RISD (the school's president, John Maeda is a huge supporter) and also at some diverse schools nationwide. Evidence suggests that increased focus on these subjects has yielded increased test scores and greater student success. During the Alumni Council meeting, various RISD students gave presentations discussing their studies on the intersection of science and art and I was absolutely blown away by what they were doing. They demonstrated real-world examples of how the process oriented technique used by artists could be combined with the goal oriented technique employed by scientists and engineers (for example, one design student interned at a medical research facility and used their research techniques to develop a beautifully designed app that measures emotional fluctuations for psychotherapeutic uses). And that combination of art and science isn't solely an academic pursuit either. I discovered that Wu-Tang's GZA was so inspired by the rings of Saturn that he is teaming with astrophysicist Neil DeGrasse Tyson to make a space-themed rap album. Pardon my lawyer-speak, but Holy F**kin' A! That's awesome!

Anyway, I won't discuss all the STEAM policy stuff here, you can go to the website and read all about it. What you want to know is why I support STEAM and why you should to. Well if you can't tell, art has always been a huge part of my life. Art class in school was a place where an average student like me could shine. I hated studying and reading. I couldn't split atoms, do fractions, or catch a football; but drawing and painting... I was good at that. And I worked hard at it. Without it, my energy would have been wasted, misused, directionless. Eventually, I was good enough that a teacher suggested I consider going to art school. Art school led to television and television led to law school and law school led me here.  Beyond just giving me something to do, my art background gave me the ability to look at problems with a unique perspective and solve them using creative processes.  This, by the way, came in extremely handy in a legal setting.  I would not be the man I am today if I hadn't gone to art class... and I like the man I am today. All because when I was six years old, I was allowed to sit in a room with paint and markers.

Every artist has a story like this, and you know what? I don't know a single non-artist who doesn't have fond memories of art class. Those classes were free of judgment and allowed you to let your mind wander, ponder, and create. Art class was a place where imagination and inspiration were encouraged and evidence suggests that creativity is not only good for the soul, but also stimulates innovation. That's why I support STEAM. I lived STEAM and so did most of you. All of us know from experience (even those of us without an artistic bone in our body) that art is a fundamental underpinning of our culture. We use it, rely on it, communicate through it. It entertains and educates us. If students don't have a space to let their creative juices flow, they become tamped down, uninspired, drones... and that's not America.

House Resolution 319 is a bill that will put federal funding behind just this type of initiative. I've gone ahead and signed a petition that would get the bill in front of Congress by December and it needs 950 more signatures. I highly suggest you sign it and tell your friends about it too.

Filmmaker-2-Filmmaker: Tip 3 - Sweat The Business Stuff

Have you seen Night of the Living Dead?  Even if you haven't, you are probably aware of its influence.  The 1968 George Romero horror film is the progenitor of every modern zombie trope; the shambling, the flesh-eating, the brain-lust.  Dawn of the Dead, 28 Days Later, Resident Evil, World War Z, the list of imitators and followers extends to infinity.  Everything you know about zombies came from this film.  On top of that, the film is great.  It was terrifying in a way that horror films just weren't until then.  The black and white cinematography is among the most beautiful ever put on film.  And forty-four years later, the film is still teaching us... about copyright?

Before the film was released, it was originally titled Night of the Flesh Eaters, and like all movies of it s day, there was a copyright mark next to the title (that famous little © followed by a date).  But when the title was changed to Night of the Living Dead, the copyright mark was negligently removed.  Based on the copyright law of the time, the absence of the © rendered the film's copyright invalid and the movie immediately entered the public domain.  That meant that anyone could make money off the movie and Romero couldn't do anything about it.  Today, the film is sold on home video by a number of different distributors and is available to view or download free on Hulu and YouTube.

Night isn't the only movie currently in the public domain, but it's rare to see a film on that list that isn't from the 20s, 30s, and 40s.  Thankfully, that law became defunct in 1988 and today artists are no longer required to place the © mark on their work in order to maintain the copyright, although I still recommend doing it (For information on how to protect your copyright, please see my previous post on how and why to register).  Romero has since gone on to make seven million zombie films (only a slight exaggeration), and he owns the copyright to many of them.

So why am I writing about this?  First, because it's an awesome anecdote and an appropriate one for the first day of October.  Second, because it functions as a cautionary tale for every artist out there.  It's tempting to say "I'll take care of the art now and worry about the business stuff later" because as artists, that's where our passion lies.  Our instinct says that if the art is good enough, the business stuff will just fall into place on its own.  Of course, that isn't the reality.  I can attest to that from personal experience...people will try to take advantage of you, either by design or accident.  No one is going to protect your work for you, which is why you need to sweat the business stuff from the moment you begin a project until the moment you deliver it.  It may not be fun to labor over copyright applications or contracts, but that's how you prevent the world from gaining unfettered access to your work (and let's face it, if you're an artist your work isn't just a living, it is an extension of you).  To Romero, the image of zombies in a field was the most terrifying thing he could think of.  To me, it's the idea that because of a little negligence, someone else can make money off your work.

If you're an artist or a filmmaker, you need to condition yourself to take the business side seriously from the beginning.  Don't leave it to the end and certainly don't leave it entirely in the care of another.  Here are some things you should be asking yourself:

1. Is my original work registered with the U.S. Copyright Office?  If not, it should be.
2. Regardless of whether I registered my copyright, did I put ©, the date of publication, and my name on the work?  If not, I should.
3. Do I know what my value is?  If not, I should figure it out and stick by it.
4. Do I have a contract?  If not, I should have one.  It doesn't need to be long or lawyer-y.  It just has to state the terms.  It doesn't even have to be drafted by a lawyer (although it helps).
5. If I'm pitching original ideas, did I have people sign non-disclosure agreements?  I should.
6. Do I own the copyright or does my employer?  This is called work-for-hire and the general rule is that if you are hired to do a creative work for someone, the employer, not you, owns the copyright (this is a bigger issue and I'll tackle it in a future post).
7. Did I double and triple check all my papers (including papers that I had other people sign and papers that other people had me sign)?

Bottom line: pay attention to every little particular because the devil - or in this case, the zombies - are in the details.