Fairly Useful: Why Fair Use Is A Simple, But Dangerous Legal Doctrine

I always knew that I would get around to writing a post on Fair Use much like I did a few weeks ago with the Work For Hire doctrine.  If I'm being honest, I should have done this a long time ago.  I have a fluctuating list of 15 to 25 topics for this blog and Fair Use has sat squarely at the top for almost six months. The only reason I neglected it: a healthy man-sized dose of procrastination (by which I mean I was more interested in writing about other topics).  But two things happened this week that made me realize I had to finally tackle the purple-fanged monster sitting at the top of my list.  First, I was asked by several readers to discuss Fair Use in greater depth than I have in the past.  And second, I was accused by a reader (who is not a lawyer, by the way) of not understanding how Fair Use works, an allegation that made me so mad I almost hulked out.  I'm certainly not perfect (my wife will regale you with stories confirming this fact), but I can guarantee you that if I'm writing about it on this blog, then I know what I'm talking about.

So in an effort to prove that naysayer wrong and shore up my ego, here's my take on what you need to know about Fair Use, a widely misunderstood doctrine that is used by artists and non-artists alike, oftentimes without even realizing they're doing it.

What is Fair Use?

Normally, when you use someone's copyrighted work without permission, that would constitute copyright infringement (only the owner has the exclusive right to reproduce, sell, or otherwise use their work) and you could end up having to fork over a handsome fee to the copyright owner if you're sued and you lose.  However, Fair Use is a legal defense that you can assert in certain situations that gets you around that pesky infringement thing.  In essence, Fair Use allows you to legally use someone else’s copyrighted work without their permission.  That's all it is.

But while the general concept of Fair use is easy to understand, it's not always easy to apply in practice.  That's because, like most things in the law, there's no hard and fast rule about it.  You have to apply a number of different factors (four of which are used regularly) to the situation and balance them against each other.  I've listed them below in their original Legalese, along with  modern English translation:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
   • English Translation: What is your intended use of the original work? Profit?  Parody?  Education and criticism?  Has your use transformed the expression or meaning of the original work?  Profit is generally frowned upon, but parody, education, and news reporting/criticism are more likely to be given Fair Use protection (without Fair Use,  CNN would get sued every hour of everyday). The more your use changes the original work, the better a Fair Use defense will be.
2. The nature of the copyrighted work
   • English Translation: Is the original work published or unpublished?  Fiction or Non-fiction?  Fair Use is generally more applicable if the work is non-fictional (based on facts) or published.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
   • English Translation: How much of the original work are you using?  All of it? Some of it?  The less you use, the more likely you can assert Fair Use.
4. The effect of the use upon the potential market for or value of the copyrighted work
   • English Translation: Does your use deprive the copyright owner of income or undermine a new or potential market for the copyrighted work?  Basically, if your use can take money out of the copyright owner's pocket (even if you're not using it for your own personal financial gain), then that's infringement.

I could spend days discussing each of these factors in greater depth, and maybe at some point down the line I'll devote individual blog posts to the vagaries and intricacies of each one.  For now I'll just say that none of these factors intrinsically carry more weight than the others and judges have a lot of discretion over how to balance them.  For instance, a lot of people assume that if they don't profit from the use of someone's copyrighted work, that will be enough to allow them to apply Fair Use.  But some courts have de-emphasized the importance of financial gain; if the copyright owner's bottom line could be negatively affected, then using their copyright can still be infringement (and thus not Fair Use) even if the infringing party never makes a cent.

Misconceptions

Like the profit issue I just mentioned, there are a bunch of  other misconceptions people regularly make about Fair Use, so I thought I'd mention a few of the more common ones here.

1. Acknowledgement of the source material will give you Fair Use protection.  Not even a little bit.  While it's a good CYA move to credit the artist/author/copyright owner anytime you use their work (whether you asked for permission or not), simply giving them credit doesn't get you off the hook.  You can still be sued for infringement and found liable, based on how the factors above are weighed.
2. The copyright owner can prevent your Fair Use of their work simply by adding a disclaimer.  Also not true.  In the past I've seen artists try to prevent unauthorized use of their works by attaching a note or disclaimer saying something to the effect of "this work is not subject to Fair Use."  Um, yeah buddy, it is.  Sorry.  Fair Use is always applicable and takes precedence over the author's desire, assuming of course that your use falls within the above-mentioned factors.
3. If you copy the entire work, you don't get Fair Use protection.  Like I said before, the amount of the work used is only one factor that is considered.  Now using the entire work certainly won't help you and I generally advise against it, but depending on the other three factors (especially if your use transforms the meaning or expression of the original work), your may be able to use the whole piece and have that be a Fair Use.
4. Fair Use will prevent you from being sued.  NOPE!  This is probably the biggest mistake I see people make and it's an assumption that makes Fair Use extraordinarily dangerous, so watch out.  Do not assume that Fair Use is some "get-out-of-jail free" card that will protect you from litigation.  Fair Use does not prevent you from being sued.  Ever.  Fair Use is what lawyers call an "affirmative defense" and it can only be asserted after you've been sued.  This is why it's really important that artists don't rely wholesale on their understanding of the doctrine, even if they're right!  While Fair Use can be an effective tool, it can only be exercised once you're in the middle of a legal kerfuffle which will cost you lots of time and money.

As with many of the topics I discuss on this blog, I over-simplified here and left some stuff out for the sake of brevity.  My goal here isn't to give you a Master's level understanding of the details and intricacies of Fair Use - or any legal doctrine for that matter.  Rather, I'm trying to make you aware of the forces you play with when you use someone else's copyrighted work.  Whether your use of something qualifies as Fair Use actually depends very heavily on the specifics of your case.  And even if you think your use qualifies for Fair Use protection, don't simply make that assumption and leave it there.  Ask for permission to use the work, and if you elect not to ask permission, seek professional legal advice to see if your intended use is covered by Fair Use.  

Fair Use is no mystery, but if you don't treat it with respect, it can do irreparable harm to you.  Just ask Shepard Fairey.

Ask Greg: Why You Don't Need To Register Your Copyright or Trademark Even Though You Should

I get lots of questions from artists with legal conundrums. Lots. And most of those questions tend to be variations on some common theme. So when I notice a pattern emerging, I'll wait for a bunch of similar questions to build up and then do a blog post on it - usually framed around an interesting new story, personal experience, or some other flight of fancy. Sometimes I'll discuss it in such a way that the question I'm answering is buried in the overall telling, that way it's not obvious that I'm addressing an issue that several people are facing. The question I'm answering today is a little different though, since it may in fact be the most asked question I receive. So instead of addressing it in conjunction with some framing device, I'm just going to attack it head on so there's no ambiguity. And if you like this no-nonsense approach, let me know in the comments section and I'll make Ask Greg a recurring column.

*****

Q: When should I copyright my work?

A: Never. Never ever. Let me say this as clearly and as loudly as I can: you never need to copyright your work because under U.S. Copyright Law, copyright attaches to the work automatically from the moment the work is "fixed in a tangible medium of expression." That copyright is there to protect your right to own and exploit the work and it exists independently of any other considerations: you don't need to tell anybody that the copyright belongs to you and you don't need to attach the famous © symbol. You don't even need to sign your work (although you should absolutely do all those things anyway). There. Question answered, your job is done.

Okay not really. Because this question isn't really asking whether you should copyright your work, it's asking whether you should register your work. And that is a wholly different calculus. I've talked in the past about where you should register your work (the most common is the U.S. copyright website) and how you can get that registration, so I won't go into that again here. Instead, I will tell you why registration is worth it, even though you don't have to.

Why You Don't HaveTo Register Your Work

Because Copyright Law already protects your ownership over the work. The law doesn't stop working for you just because you elect not to register your copyright with the government. Also, registration fees can really add up since each piece of work must be registered individually. So the more art you create, the more expensive it will get for you to register your art. Someone asked me last week if they could batch register a group of works at the same time. The answer is no, unfortunately. Registrations protect individual works of expression, so unless the separate pieces are meant to be viewed as part of a whole (i.e. short stories in an anthology), they have to be registered solo.

Why Registration Worth Is It

Well first off, if you decided to sue someone in for infringement - i.e. someone uses your work for profit without your permission - you will have to register the work with the Copyright Office before you can bring the lawsuit into court (it's cheaper to register online). So frankly, having that registration beforehand is just easier. But beyond that, registration is a great way to protect your copyright because it creates an official government record demonstrating when your work was created. They even send you a fancy registration certificate for your records. So if you do eventually sue someone for infringement, that registration is proof that your work preceded the infringing use. Of course, having a copyright registration isn't the only way to prove that your work came first... but it is the best way by far. That's partly because as an official government record, copyright registrations are granted a lot of authority in a courtroom setting (government documents are self-authenticating, which means your lawyer doesn't have to prove that the registration is what it claims to be. This, by the way, is good deal for you - the less time your lawyer spends proving a document's authenticity means you're spending less on attorneys fees).

You can read all about registration procedures and a few other benefits here if you're so inclined. The basic gist is that registration isn't really necessary most of the time unless you need to sue someone. Think of it this way: Copyright registration is like auto insurance. You may never need it, but if you get into a car crash, it'll save your butt. That said, if you don't register your copyright but you do suffer from infringement, there are still all sorts of ways you can go after the infringing party - cease and desist letters, DMCA takedown notices, and demands for licensing fees, among others.

Added Bonus: What About Trademark Registration?

While Copyright Law protects works of artistic expression fixed in a tangible medium (i.e. art), Trademark Law protects any word, name, symbol or device, used by a person in commerce (i.e. a logo you use in business, your company name, or even a catchphrase). Trademark registration shares many of the same characteristics as a copyright registration - the main difference is the manner in which the work gets infringed.

Similarities: Just like copyright, you don't need to register your trademark in order to have protection under the law. Once you start using a trademark in commerce, it will automatically have some level of protection against infringement. If you do decide to register your mark with the U.S. Patent and Trademark Office (USPTO), it will requires a fee and you'll get a tony little certificate of registration indicating that there is now an official government record of your trademark.

Differences: Unlike copyright, if you don't register your trademark with the USPTO, the protection you'll have over your mark will be regional only - an official registration gives you nationwide protection (for example: I start a company called "Greg's Beets." If I register my company name, then anyone in the country who uses that name could be subject to a trademark infringement lawsuit. On the flipside, if I don't register the "Greg's Beets" corporate name with the USPTO, my mark will only be protected within the state). If you want, you can actually register your mark directly with the state as well: the USPTO website has a page devoted to all the state sites where you can register your mark. Most registrations have to happen with each state's Secretary of State.

One Last Note About Symbols

When you have a piece of copyrighted art, you are allowed to use the © symbol whether or not you choose to register with the Copyright Office. The © is a gift and you should absolutely use it at every opportunity because it signals to the world that your work is protected (a lot of people assume that if the © is missing, the work is not copyrighted; even though that's not true, don't give them the opportunity to think that).

The same applies in trademark situations: You are allowed to use the ™ symbol even if you don't register your mark and your work is protected whether or not you use it. But as with the ©, you should still use it. The ™ indicates that you intend to use the mark in commerce. It's just good business to get in the habit of putting a ™ on your trademarks.

That said, do not use the ® symbol without officially registering your mark with the USPTO. That mark is reserved squarely for marks that have been registered and use of it could result in a fine of some kind.

Protecting The Brand: Beyonce Knowles vs. The First Amendment

Remember when Beyoncé performed during the Super Bowl halftime show and this hilarious meme-birthing picture was taken?

And then she flipped out and tried to have it scrubbed from the entire internet?  Well, three months later and Queen Bey is back at it.  She's currently on her Mrs. Carter Show World Tour and she completely banned outside photographers, while releasing only pre-approved flattering pics to various news outlets.  Beyoncé's goal  is to have total control over her image, so instead of newspapers and websites running photos of her looking like She Hulk, she'll instead look like this:

Reasonable minds can argue whether the kind of control she's attempting is even possible in the internet age (hint: it isn't).  But I'm more curious about the effect that this kind of totalitarianism will have on her brand.  The conventional wisdom is that Beyoncé isn't doing herself any favors by limiting press access to her and having relentless control over the pressers that do get access.  On the face of it, it makes her seem out of touch with reality.  But is that harmful to her brand?  I'm not so sure. The people who love Beyoncé are already convinced of her beauty, talent, and semi-royal status and are willing to write off the unflattering pics as aberrations.  And the people who don't love her?  Well they certainly won't be convinced by these autocratic methods, but I don't think she's trying to win them over anyway. Beyoncé knows herself and her audience, and as long as they keep her rich and famous, that's probably enough.

I've seen it argued that Beyoncé's grasp on her self-awareness is tenuous at best if she thinks she can control her image to this degree, but I would argue that she's read the situation better than we giver her credit for.  After all, she hasn't sued anyone to take down the unflattering pictures (to my knowledge, she only sent polite email requests to various outlets), and that fact tells me that she knows where the line is between egomania and villainy and she's not willing to cross it.

So my guess is that while this probably won't make her MORE popular, her brand is as safe as any celebrity brand can be.  But I say that with one caveat: she should avoid alienating the press, because they're the ones who can bring about her destruction.  If you've seen Beyoncé in interviews - as well as the remarkably self-serving HBO documentary she directed about herself - it's clear that she is a person of extreme self-confidence.  And the confidence she has in her abilities has driven some of the press to turn on her and lose their own grasps on reality.

In particular, the National Press Photographers Association.  They're claiming that the restrictions placed on them by Beyoncé and her management team is preventing them from doing their jobs, and that violates the First Amendment.   No, sorry fellas.  I understand that you're angry at having your access to Beyoncé cut off, but the First Amendment isn't applicable here.  Constitutional Law 101 tells us that the First Amendment only prevents the federal government (and state governments through a process known as incorporation) from restricting your freedoms of speech, press, religion, etc.  It says nothing about whether a person or organization can restrict your First Amendment rights... because they can!  Behold the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As you can see, not a word leading you to believe that individuals (like Beyoncé!) or corporations (like Beyoncé!) can't place restrictions on the press at events.  In fact, all of the Amendments in the Bill of Rights are there to prevent the government from limiting your rights.  But they apply only to the government.  So while Beyoncé's ban on photogs at her concerts may not be the best PR move, there's no legal reason she can't do it.

Illegal Graffiti Gets Copyright Protection Because It Is Still Art

Everyday on my walk home from work, I see this or something like it tagged to the side of my apartment building:

Graffiti intrigues me because of its contentious nature in "civilized" society.  The artist in me is excited by the skill and craftsmanship involved in making something like this (although I can barely read it; it might as well be written in Klingon).  But the law-abiding citizen in me tempers that excitement with the knowledge that graffiti, unlike most other forms of art, is predicated on using someone else's property as a canvas... often without their consent.   And because graffiti is usually illegal, it raises a decorum problem that often confuses people into thinking that the normal rights of copyright ownership don't apply - i.e. "you can't copyright protect vandalism because it is illegal."  But that's bunk.

I've known a fair few graffiti artists over my lifetime and I can safely say that they're not a populace that's overly concerned with asserting ownership rights over their work.   Primarily because asserting ownership would be an admission of guilt resulting in some form of criminal penalty such as a fine or even jail time (there's a reason Banksy can't revealed his identity, after all).  The other part of it is the political motivation that often accompanies graffiti: that property ownership is a social construct anathema to the public good.  Why else vandalize someone else's building with such artistry and flair when a sledgehammer or molotov cocktail can drive home the same point in a fraction of the time?  [Author's note: of course, there's always the possibility that the graffiti was commissioned by the property owner, in which case, the tagger is not burdened with criminal concerns and will want to assert and maintain copyright ownership. Here's an interesting NY Times article from 2007 about graffiti artists who were upset when their commissioned works were mistaken for vandalism and photos of the graffiti ended up being published in a book without their permission.  If you're a graffiti artist who is hired by a paying party, you should really check out my last post on work-for-hire.]

But make no mistake about it, graffiti artists, even the covert ones tagging buildings without permission, do have ownership rights over their work.  Graffiti is absolutely 100% protected under U.S. Copyright Law and I'll have words with anyone who says otherwise.  Our copyright law lists the following types of works that are granted copyright protection:

1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings; and
8. architectural works

And while graffiti (along with many other forms of art) is never explicitly mentioned anywhere in our copyright laws, it's clear that the list was purposefully left open-ended to grant protections to art forms that hadn't yet been invented and hadn't been contemplated by the drafters of the law.  I should also point out that nowhere in our copyright law does it say that a type of art forgoes protection simply because it could be illegal.  That's what this article by Celia Lerman argues and I agree without reservation.   Copyright law places no judgment on art, the motivation behind the art, or the form in which the art takes.  It is, for all intents and purposes, judgment neutral.

The fact that an artist can own the copyright to a piece of illegally made art that emblazons the side of someone else's property creates an interesting dynamic when a third party takes a photograph of that graffiti (like the one I took above) and attempts to profit off of it.  That's infringement of copyright and doing so without the artist's permission could actually result in the artist taking you to court and winning monetary damages (if the artist isn't concerned about the criminal ramifications, obviously).  Luckily, I'm in the clear because I can assert Fair Use over my photo since it was taken for non-commercial, educational purposes.  But if you're like the photographer in that NY Times article I linked to above, watch out!

So ownership over the copyright to graffiti is vested in the artist regardless of its legality.  But that's not the end of the story, because that art, while owned by the artist, is completely reliant on someone else's private property.  And property is kind of a big deal in this country.  The right to property is mentioned explicitly in the Fifth and Fourteenth Amendments, and the Third Amendment is built entirely around it.  Let's not even go into the entire legal disciplines that arose around property law and made my life in law school an unwinnable shit-show.  Property is important, which means that the needs and wishes of the property owner will almost always supersede the rights of the graffiti artist.  So when my landlord decides to blast off the graffiti adorning my building with a power washer, he can do that without fear of legal repercussions from the artist (although why bother?  The taggers are just going to show up again).

The truth is, despite the political hand wringing over it, graffiti is just like any other type of art form and gets the same protections.  What makes it difficult at times is its relationship to the surrounding environment.  And unfortunately, as long as graffiti remains illegal, the oath I took to uphold the law will mean I have to walk a fine line between the rights of the artist and the rights of the canvas owner.  It will be, for the foreseeable future, an issue that tugs on my Gemini heartstrings.

The Work For Hire Doctrine - A Primer For Freelancers

It strikes me that in the eight months I've been curating this blog, I've never actually explained the Work For Hire doctrine in any meaningful way.  I've only tiptoed around it, and that's just ridiculous when you consider the fact that artists generally aren't independently wealthy and need to work for a living.  Since most artists make their living by creating their work on someone else's dime, that means they're relying on the Work For Hire doctrine even when they don't realize it.

I bring this up because last Thursday I hosted an alumni-only webinar for my alma mater on important legal topics for artists and artrepreneuers and I made the Work For Hire doctrine a prominent part of that presentation.  Based on some questions I got during the lecture, I decided that now was the time to discuss Work For Hire and clear up some important misconceptions about it (especially as it pertains to freelancers) that seem to throw people for a loop.  So without further ado, here's my brief primer on Work For Hire.  Buckle up, it's about to get informative!

What Is Work For Hire?

The Work For Hire doctrine is a very specific legal principle that arises under U.S. Copyright Law.  The basic premise is that in certain situations, an employer will automatically own the copyright to work you do for them as a matter of right.  But the manner in which an employer can assert that right depends heavily on whether you're hired as an employee or an independent contractor (or freelancer, to use the non-legalese equivalent).

The Employee Work For Hire

If you're hired as an employee, the work you create for your employer doesn't belong to you, it automatically belongs to the employer.  No ifs ands or butts. In employment situations, the ownership over a copyright to a piece of art is no longer determined by the artist's handiwork; it's determined by the motive and desire of the employer.  How will you know if you're in an employment situation?  Look for the traditional trappings of employment, like salary, benefits, co-workers, office, boss, limited control over your work, etc.  If you find yourself in this situation, then unfortunately, the only way you can retain a copyright to work you've created for the employer is if the employer gives it to you in writing.

Here's an example of how that plays out: if a company hires you to design a logo and website for them, but you're paid a salary, you work out of their office, and your employment is indefinite (as opposed to job-specific), that probably means you're an employee.  You won't have any rights of ownership over the work except the right to display that work in a portfolio.

...But you and I both know that most artists don't work as employees; more often than not they work as freelancers.  And when you're hired as a freelancer, the rules change dramatically.

The Independent Contractor/ Freelancer Work For Hire

If you're hired as an independent contractor or freelancer (you should look for factors like greater control over the work, using your own equipment, working on your own time, short employment periods, etc.), the employer will own the copyright to your work as a matter of right ONLY if all of these requirements are met:

1. The work is custom-made/ commissioned

2. Both parties agree in writing that it's a Work For Hire

3. The work falls into one of these nine categories: (A) a contribution to a collective work, (B) a part of a motion picture or other audiovisual work, (C) a translation, (D) a supplementary work, (E) a compilation, (F) an instructional text, (G) a test, (H) answer material for a test, or (I) an atlas.

So if you're a freelancer, this means that you will own the copyright if any one of these three requirements isn't met!!  Let me repeat that because it's super important... your work must meet all of these requirements to be a Work For Hire; if just one of these requirements isn't met, it isn't a Work For Hire and the employer doesn't get the copyright.  One of the biggest misconceptions I see with freelancers is that they usually assume once they complete the work, they no longer have any ownership rights over that work and they walk away, not realizing that they still own the copyright.

Let's return to the website example.  You're hired to design a logo and website for a company, but you do the work on your own computer, on your own time, and you send the company invoices for your work.  The work is obviously custom-made and let's even say that you and the employer both agree in writing that it's a Work For Hire.  Well, it isn't, because unless the websites constitutes a collective work, web and logo design aren't any of the previously mentioned nine categories.  That means it's not a Work For Hire and you retain the copyright to your work.

On the other hand, if you were hired as a cinematographer on a film, then as long as you and the employer agreed in writing that it's a Work For Hire, then the copyright WOULD be taken by the employer, since films are one of the nine categories considered under copyright law. If you're a film producer and you're hiring above and below the line talent, it's a good practice to put in writing that the work these independent contractors do are Works For Hire because you don't want to get sued for copyright infringement.  Remember a few months ago that anti-Islam film that caused all those riots in the Middle East, "The Innocence of Muslims"?  Well one of the actresses, Cindy Lee Garcia, sued the film's producer Nakoula Basseley Nakoula for copyright infringement.  As it turns out, even though their employer/independent contractor relationship met most of the requirements (custom work, motion picture), there was never a written agreement between the two that it was a Work For Hire.  Unfortunately for Nakoula, he has bigger problems than a copyright infringement lawsuit (for example, the jihad against him by radical Muslims for his film's denigration of the Prophet).

Of course, even if your employer has no right to the copyright, you can always convey the copyright (through sale or gift) to the employer if you choose to; the employer only has a right to it in the circumstances I mentioned above.

A Bundle of Sticks

Let's say you're a freelancer and you retain the copyright to the work you did for someone, that doesn't mean you can do whatever you want with it.  After all, someone paid you for that work and they have an expectation that no one will try to profit off of it... even the artist.  It's a reasonable assumption.  When you do work for someone, you can't just treat it like it's yours, even if it is.  That's because ownership isn't the only right that accompanies a copyright.  There are several other rights (such as the right to display, the right to make copies, the right to make derivative works, among others) that go with a copyright as well.  We copyright attorneys refer to this as the "bundle of sticks" and ownership is only one.  When you're paid to do a work of art at someone's request, you end up giving up a lot of those rights, even if you retain ownership.  If you were to exploit the work as if you had complete dominion over it, you could actually end up facing a variety of copyright or trademark infringement issues over exploiting your own work, and that's a pickle you don't want to be in.

So now you may ask "Greg, what's the point of owning a copyright to the work if I can't exploit it?"  Well, chiefly it's because you may want to limit how the employer uses and profits off your work.  Since you both possess some of the rights to the work and neither of you possess all of the rights, both parties are limited in their abilities to exploit that work.

How To Move Forward

So you own the work you did for someone else but now you can't really do much with it, so what do you do?  Maybe it's better to set up some sort of licensing agreement with the employer that's renegotiable at specified intervals.  Maybe it's better to convey the copyright outright and then walk away from the work.  It really depends on the situation, the client, and the potential for profitability of the work you do (for example, if you design a logo for a company and the company becomes famous, the potential for financial exploitation is probably much greater than if you do a mural for a client's building).  As far as I'm concerned, one thing is absolutely clear: if you're a freelancer, you need to discuss what to do with that copyright in every contract you sign with a client/employer.  After all, there's no reason you both can't continue to profit off the work you were hired to do.

And if you're an employee... well just take solace in the fact that you have a job.

Self-Serving Post # 1: Come To My Webinar!

Hi dear readers,

Next Thursday, April 18th at 7:00pm I'll be hosting a webinar on the three most important legal topics that I think artists and artrepreneurs should know about.  This is for RISD alums only and it's sponsored by the Alumni Office.  You can register here.  I implore you to check it out because I'll be covering some of the topics I'm most passionate about and have talked about on the blog before.  After the webinar ends, I'll make my slides available here for anyone who wants it.

How American Copyright Law Made Kim Jong-un Look Like A Fool: A Beginner's Guide to the DMCA

So for the second time in 63 years, we're being pushed to the brink of war with North Korea.  Kim Jong-un, the young bellicose ruler, has been making provocative statements for past few weeks and has aimed his ballistic missiles at U.S. bases in South Korea and Guam.  To make matters worse, because of his youth and untried-ness on the world stage, he's been harder to read than his father and grandfather, making him much less predictable that either of his forebears.  I don't wish to downplay the peril of the situation and I think the Obama administration should be taking all appropriate steps to ensure the safety of the American people, as well as America's allies in Japan and South Korea.  That said, I find it hard to take their threats seriously when they can be made to look so foolish because of American copyright law.

Let me explain. Back in February, the North Korean military released a propaganda video on YouTube that quickly went viral.  The video, scored by a bizarre instrumental version of Michael Jackson's "We Are The World," showed footage of Korean missiles reducing New York City to a flaming husk of rubble.  Unfortunately for Mr. Kim, that footage was taken directly from Activision's hit video game, Call of Duty: Modern Warfare 3.  And since the North Korean military failed to get permission to use that footage, Activision issued a DMCA takedown notice to YouTube.  YouTube complied with the takedown notices and removed the video from their site.  Now when you Google that video, you'll see the image I've posted above.

So how did Activision rout the mighty DPRK?  Well, as I've discussed again and again on this blog, you can't just use someone's copyright without their permission, even if you're a rogue nuclear state who won't submit to U.N. treaties.  That's infringement.  And when you post someone else's copyright online, the DMCA (short for Digital Millennium Copyright Act), gives you the ability to bypass the infringing party and go straight to their Internet Service Provider (ISP).  One of the most common provisions of the DMCA - and the one that's applicable to most artists - is the takedown provision. It's basically a cease and desist letter to the infringer's ISP which states, in effect, that the infringer has used your copyright without permission and the ISP must remove the copyrighted material immediately.  This is something any artist can do... you just include the following in your letter:

1. Your signature
2. Identification of your work that was infringed
3. Identification of the material that infringed your work and that you wish to have taken down, and enough information to allow the ISP to locate the material
4. Your contact information
5. A statement that you have a “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”
6. A statement that “the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

There's no other work required, no fee, no central clearinghouse.  Most ISPs, like YouTube, would rather just take down the offending work than fight you in potential litigation.  That's one of the benefits of the DMCA takedown provision - it's quick and painless and it almost always works. Another benefit of this provision is that you can fight back against infringers without paying a dime in lawyer's fees or litigation costs.

But there are downsides too.  For example: it requires perpetual vigilance.  In this case, Activision went right after YouTube, which took down the video immediately.  Yet the video is still present on the web and can only be taken down if Activision sends whoever is hosting the video a takedown notice.    To wit: Liveleak was able to catch the video before it went down; you can watch it here if you want.  It's truly ludicrous and hilarious.  This is one reason why the DMCA (signed into law in 1998) is simultaneously despised and beloved.  When it works, it really works.  But when it fails, it's a giant clusterfuck.  As with most of this country's intellectual property laws, I'm of two minds on the DMCA.  I'm a big fan when it helps the small and struggling artist, but I'm less forgiving when the law can be used by giant corporations to abuse copyright and bully individual artists.  And Lordy Lordy Lordy does the DMCA get abused by corporate copyright holders.

Last week, Gizmodo published this piece discussing how large corporations use the DMCA to strong-arm researchers into censoring their work in order to prevent embarrassing revelations related to their copyrights.  And who could forget NBC sending Brian Kamerer a DMCA takedown notice for HIS OWN COPYRIGHTED VIDEO after it was featured on The Tonight Show without his permission?  And my personal favorite, the RIAA (Recording Industry Association of America), complaining that Google (YouTube's parent company) wasn't taking the problem seriously, even after Google removed 1.2 millions of copyrighted links in one month after receiving the RIAA's DMCA takedown notices.

One of the problems, of course, is that because issuing a takedown notice is free of charge, the only hinderance is the cost of paper and printer ink.  Corporations can fire off reams of takedown notices without batting an eye.  And while it's certainly possible to fight the takedown notice and have your work reinstated online, well that requires fighting it out through litigation, another cost that a corporation can absorb much more easily than an individual artist.

I don't have an answer on how to fix this, but I do know that there needs to be a way to disincentivize the corporations from issuing takedown notices en masse under the DMCA.  One possible way is to include the infringer in the process instead of going directly to the ISP.  Maybe create a department within the Copyright Office that would handle the takedown notices or attach a fee to it.  I'm just spit-balling here.  I'm perfectly willing to concede that these could be bad ideas, but I do think we need to start somewhere.

Nevertheless, I don't think the DMCA should be killed wholesale, precisely because of the boon it provides to the individual artist who wants nothing more than to protect his or her work.  And if North Korea wants to reissue their propaganda video without using someone else's copyrighted video, I will stand up for their right to do that.  Although somehow I think they have bigger fish to fry at the moment.

Sherlock Holmes and the Case of Copyright Duration

Is Sherlock Holmes in the public domain?  Holmes scholar and lawyer Leslie S. Klinger believes so, and he is suing the Conan Doyle estate to prove just that.

It all started, as these things do, with money.  You see, a few years ago Klinger published a new Holmes novel and, like many who wished to capitalize on the popularity of Sherlock (Guy Ritchie and Steven Moffat in particular), he paid a hefty licensing fee to the Conan Doyle estate for the privilege.

Recently, Klinger decided to have another go at Sherlock; in particular, he wanted to publish a collection of short stories. Once again, the Conan Doyle estate demanded a payout.  Much like the Tolkien estate, the Conan Doyles are renowned to be fiercely protective of their copyright and they doggedly pursue anyone whom they feel infringes it.  This time, however, Klinger decided to sue the estate as a preemptive measure, claiming that Holmes and his entire canon (supporting character like Watson, Moriarty, Mrs. Hudson, the house at 221B Baker St, character traits like Holmes' deductive reasoning and friendship with Watson, etc.) were in the public domain and thus, he didn't have to pay them a licensing fee.

This is a pretty serious move and in all likelihood it has legal support.  That's because in the United States all works published before 1922 are automatically in the public domain and are thus available for anyone to profit from. [Author's note: aside from pre-1922 works, any work whose copyright expires will move into the public domain.]  Sherlock Holmes made his first appearance in 1887's A Study in Scarlet, and nearly his entire world found its way into print before 1922.  By that logic, it's hard to see how the character won't be found to be in the public domain, and if a judge does find for Klinger, that's going to have major repercussions for the character.

In contrast, the estate argues that because Sir Arthur was still publishing Holmes stories as late as 1927, the character and his entire canon don't fall into the public domain. That's where the wrinkle in this case appears.  Apparently, one of the authors whose short story Klinger wants to publish used a Holmes character that didn't appear in a published work until 1924. The case is really interesting and you can read all about it here.

I brought up this issue because of a quote at the end of the article.  When interviewed about the Klinger v. Conan Doyle case, New York based entertainment lawyer John J. Tormey III said that, "Copyright was intended by its progenitors to be a limited monopoly, not an indefinite monopoly."  Amen brother!  On at least two occasions (here and here), I've discussed how the original purpose behind copyright protection in the U.S. wasn't to grant the author everlasting control at the expense of all others, but to foster innovation for the betterment of society.  Our creative landscape is littered with copyright owners (some individuals and families, but mostly corporations), holding their copyrights in an iron death grip, suing the crap out of anyone large or small (usually small), in order to prevent them profiting from that copyright.

That's why I think we need a drastic overhaul when it comes to duration of copyright - in modern political parlance, I would say that I've "evolved" on the matter... which really means I was never a fan of the current duration allowing a copyright to last for the life of the author, plus 70 years (and going up to 95 years for corporate copyright holders), but I just never felt comfortable saying it aloud until now.  Forgive my lack of lawyerly eloquence, but life plus 70 is just too damn long.  Look, I get that if you create something that's profitable, you want to be able to control it, make your living off of it, and provide for you family.  That's a natural instinct and a praise-worthy one.  Piracy - the use of your work without your permission - should be dissuaded and punished where appropriate.

The problem with the current durational scheme is that it results in less innovation and artistic expression and more lawsuits.  Under the current law, the author's estate can use and exploit the author's original work for several generations after he dies. If you can stay rich off of your grandpa's work, what incentivizes you to create your own work of artistic expression...to add something to society?  Even worse, many works of artistic expression end up being purchased by large corporations who use their considerable resources to suppress smaller artists who wish to use those copyrights as points of inspiration for their own work.  [Corporate bullying of individual artists is one of my bugaboos.]

That's why I propose the following four-tiered amendment:

1. A copyright will last for the life of the author and no longer.  Upon the author's death, the copyright will move into the public domain.
2. If the author sells the copyright to another party (a corporation, say), the party will have 15 years to use the copyright.  If the party does not use the copyright in 15 years, the copyright will revert in full back to the author.  If the author dies before the copyright can revert back to him, the copyright will expire and the work will move into the public domain.
3. if the author sells the copyright to a non-corporate buyer, and the buyer uses the copyright within the 15 year timeframe, the copyright will last for the life of the buyer.  Upon the buyer's death, the copyright will move into the public domain.
4. If the author sells the copyright to a corporate buyer and the corporation uses the copyright with the 15 year timeframe, the copyright will last for 70 years, measured from the original sale of the copyright.  At the end of the 70 year period, the copyright will move into the public domain.

I know, this makes me look like an anti-free market socialist.  In fact, I'm willing to bet within two days of publishing this post, I'll get some pushback on the feasibility of this system or the logic behind it.  I don't care though. The truth is, limiting copyright ownership is the best way to spur innovation and growth, which is what our founding fathers envisioned.  A system like this will help limit perpetual copyright monopolies and inspire copyright holders to be pushing boundaries.  Hell, even The Economist agrees that copyright durations should be shorter, so I can't be totally out of my mind.

Sherlock Holmes is probably in the public domain already, but if he isn't, he should be.  Arthur Conan Doyle created him over 120 years ago and his descendants have profited amply from his popularity.  Now it's time for Conan Doyle's great-grand kids to go out there and make their own mark on society and let the world have Sherlock.

Saying "No": A Lesson In Controlling Your Business

A coworker heard about my background in TV production and asked for my help in shooting a documentary about a social justice issue she was passionate about.  Since we both work full-time, she wanted to film on nights and weekends.  I declined politely, saying [truthfully] "I don't do that kind of work anymore."  I'd long since sold off all my production equipment and I've turned down every producing job I've been offered since 2009.  Undeterred, she continued to sell me on the project and when she was done, she said what they always say: "I can't afford to pay you, but you'll get lots of great experience."  This was my response:

"I don't need experience.  I need money."

I get asked to help out on video projects a lot... at least once a month and sometimes weekly.  I say no to all of them.  That's because most of the time, people don't realize what kind of time and effort these projects require, and therefore, what kind of commitment they're asking of me.  The few who ARE aware will offer me "experience" in the hopes that it will be enough to sway me.  It never is. I don't produce anymore, but if you're going to convince me to lend my considerable production expertise to your video project, I want - nay, DEMAND - to be paid for it.  I'm not shy about it and I feel no shame or embarrassment by telling someone that without $$$ they'll have to look for someone more altruistic.

I've written about doing unpaid work in the past so I won't go into the pros and cons again here.  Instead, I'm going to talk about the power of learning to say "No" to situations that don't propel your art and business forward. It's such an important thing for young artists to know, yet so hard to put into practice.

I don't turn down requests to work on unpaid video projects out of greed or selfishness.  I do it because I learned from personal experience that it did actual harm to my business. When I was first breaking into the entertainment industry I took tons of unpaid work because I was too afraid to turn down any job, regardless of compensation, for fear of doing irreparable harm to my reputation.  "Don't hire Greg.  He's not a team player... he [gasp] wants to be paid."   At one point, I had three simultaneous unpaid internships, and various unpaid production assistant gigs.  I had more jobs than I knew what to do with, but my parents had to pay my rent because my income was $0.  I wasn't in control of my sh*t.

In hindsight, I realize that I took all that unpaid work because I didn't understand the value I brought to the job.  I didn't believe that I could say "No" and get away with it.  One day, I made a conscious decision to take control.  I would refuse all unpaid job offers and only accept paying gigs.  That was a good decision - a difficult decision because it resulted in a nine month work drought, but I'm glad I made it.  Eventually, the paying work came and it paid a living wage.

I understand how tough it can be to turn down a seemingly perfectly good job, especially for young up and coming artrepreneurs.  Figuring out what situations are good for your business or bad for your business is a calculus that's different for everyone.  And it can only be done through personal research and soul-searching.  It took me years to discover that working for free was harming my business instead of helping.  So instead of just yelling at you to say "No" to bad situations, I'll give you two real life examples (three if you count mine above) that will hopefully inspire you to be vigilant about what kinds of work situations are right for you.

1. An illustrator friend of mine was recently working for a client.  The client became difficult to work with and made numerous demanding requests.  My friend decided to inform the client that she would no longer be able to work under these conditions.  She further told the client that if they no longer appreciated her work, they were perfectly in their rights to find another illustrator.  After several conversations, the client decided to discontinue the relationship.  When I asked my friend if she was angry, she said, "No.  That relationship wasn't working for me and it wasn't working for them.  Neither of us were happy.  I had to walk away."
2. A painter friend of mine was selling his paintings.  All the paintings were at a fixed price and he refused to negotiate over them.  When I asked him why he didn't negotiate, he said, "I don't like negotiating so there's no point wasting my time doing it.  The paintings cost what they're worth."

Both of these people are professional artists who make a living by making art.  They each figured out what situations worked for them and what didn't.  They each learned how to say "No." And once they learned to say "No," they didn't run from it or act embarrassed by it.  They embraced it.  And once you learn how to make that choice, your business will be able to take off.

Topless Celebrity Photos! Or How To Get Sued Like A Paparazzo

A few weeks ago, I wrote this piece about how artists own the copyright to their work even after they've sold the physical manifestation of that work (i.e. retaining the copyright over a painting even after selling the physical painting to a buyer).  The post generated a lot of interest and in the ensuing discussion, I got several variants of this question:

"If I take a topless photo of [Hot Celebrity Female] at a secluded beach, can she interfere with my ownership over that photo and prevent me from mass producing it and make a mint?"

As with everything in the law, the answer is a resounding "kind of!" Hot Celebrity Female can indeed interfere with your ability to profit from selling topless photos of her to a tabloid... but not through manipulation of copyright ownership (which, I presume, is what the question was really asking). When the subject of your art is another person, they cannot interfere with your ownership of the copyright, nor can they claim ownership rights over that photo simply because they are the subject.  The copyright is vested only in the artist except in these three scenarios:

1. Sale of the copyright to another (i.e. selling the photo and copyright to TMZ)
2. Conveyance of the copyright through a bequest or gift (i.e. giving the photo and copyright to a family member or friend)
3. Certain work for hire situations (usually on projects that require collaboration, like films)

"But," you might ask, "don't celebrities have ownership rights over their personal appearances?"  Nope.  Neither copyright nor trademark law offer protection over your personal appearance.  Trademark law DOES allow you to register many other visual elements such as logos, symbols, patterns, designs - but your personal appearance is not granted any protection under the intellectual property laws of this country.  This means that, unless you sell or gift the copyright, or the copyright isn't yours to begin with, there's really nothing that Hot Celebrity Female can do to interfere with your ownership.  If you are inclined to do so, you are free to take a highly compromising picture of her and sell or license that copyright to TMZ, The Daily Mail, The New York Post, and any other publication that profits from the exploitation of celebrity culture.  You'll probably make a small bounty doing that and in fact, there's an entire group of professional photographers who make their living precisely this way: the paparazzi.

But that's not the end of the story.  Owning the copyright to topless photos of Hot Celebrity Female does not give you an unassailable right to do whatever you please with those photographs.  Even though she has no ownership rights over the photos, she can still take you to court in a big way.  Everyone - from the lowliest plebe to the most glorious celebrity - has a right to a certain degree of privacy, and tort law provides several tools that allow people to fight an invasion of that privacy.

One of the more potent tools that celebs like to use is something called "appropriation of name or likeness."  An appropriation of name or likeness is considered an invasion of privacy when a person uses your name or likeness  for commercial purposes without your permission.  So when you take a compromising photograph of a celebrity, especially in locations where they have a certain expectation of privacy, you open yourself to liability.  That's why paparazzi and the magazines they sell to get sued ALL THE TIME.  Usually, if the celebrity is in a public place, like at a restaurant or on a red carpet, there's little they can do to fight publication of that image, so an appropriation of likeness claim won't go very far.  But when the photo is snapped in a private location (like in their backyards or on a balcony at a remote resort in the rain forest), you could end up losing all the money you made from selling that picture.  Remember last fall when some paparazzo snapped photos of a topless Kate Middleton on a secluded balcony using a telephoto lens? Do you remember the Royal family suing the french magazine that published them?  The magazine lost that battle because Princess Kate wasn't photographed topless at a public beach... she was on a private balcony that was obscured by tree cover.  The only way the photographer was able to get those photos was by using the kind of lens usually reserved for NSA spy satellites.

So the moral of the story... Hot Female Celebrity can't take away your ownership over that photo you took of her.  But she can, in some situations, prevent you from making money off of it.  You, as the photographer, have to decide whether all that trouble is worth it just to catch a glimpse of Kate Middleton's boobs.