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

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

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

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

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

Self-Serving Post: Another Day, Another Webinar

Hello Friends,

Next Thursday, November 21st at 6:30pm, I’ll be hosting a webinar on the Ten Legal Concepts Every Artists Should Know, with a special focus on the fair use and work-for-hire doctrines.  This is sponsored by the RISD Alumni Office so it's for RISD alums and students only.  If you're interested (and you must be if you're reading this blog), you can register here.  I implore you to check it out because I’ll be covering really important topics that affect just about every working artist and artrepreneur.  For those who attend the webinar, I'll provide a copy of the slides I use during the presentation.  And for those unable to attend, I'll provide an abbreviated list of the issues discussed in the webinar.

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

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

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

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

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

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

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

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

But that doesn't mean Gilligan approves of piracy:

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

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

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

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

Ellen Page And The Strange Case Of The Misappropriated Likeness

It’s been a weird couple of months for Ellen Page, the elfin actress behind Juno. A few months ago, her likeness was stolen for the hit video game The Last of Us. Now, a video game that she actually participated in and lent her likeness to, Beyond: Two Souls, has featured her in a digital nude shower scene, pictures of which leaked without her consent, and which show the whole shebang.

Let's talk about The Last of Us first. Back in June, the video game made a splash, and not just because it was a critical hit. One of the game's main characters, Ellie, looked suspiciously like Page, so much so that people were asking Page if she acted in the game (she didn't). In fact, early concept art of Ellie art didn't just resemble Page, it was clearly her face.  Behold!

The one on the left is the concept art of Ellie and the middle is the version of Ellie that appears in the game, altered to look less like Page. If you're not convinced by these side-by-sides, just google "last of us ellen page" and you'll see comparison after comparison. What's striking is how even after the developer, Naughty Dog, changed Ellie's appearance, she pretty much still looks just like Page.

Anyway, Page caught wind of this and instead of suing the pants off Naughty Dog, she said this:

I guess I should be flattered that they ripped off my likeness, but I am actually acting in a video game called Beyond: Two Souls, so it was not appreciated.

Naughty Dog is pretty lucky Page isn't lawsuit-happy because she has a solid case for Appropriation of Likeness, a tort that prohibits the use of someone's name or likeness for commercial purposes without their consent (in California, name and likeness are actually protected by statute - California Civil Code Section 3344(a)). If she decided to sue, she could put Naughty Dog out of business.

So now we arrive at Beyond: Two Souls, the game that Page actually participated in by doing the voice and motion capture (see pic above) for her character. At one point, the game features a scene with digital version of Page's character taking a shower, all of her lady parts tastefully obscured. Unfortunately,  pictures from a developers-only version of the game leaked out, showing those lady parts in their entirety (Page, of course, did not pose nude for this scene. She filmed her role wearing a mo-cap suit - a leotard fitted with digital nodes that capture her movement).

Who's to blame? The game's developer, Quantic Dream, seems like the obvious target since it made the nude model to begin with; without the model, this controversy would never have arisen (in the law, we call this "direct causation"). But Quantic Dream claims that it made it impossible to view the model's lady parts within the course of normal gameplay. Their story is that an unauthorized developer took the model and filled in the blanks, as it were. So is Quantic Dream off the hook because someone found a way to view that model in an unintended way? And even if Quantic Dream was the right party, could Page sue the company for Appropriation of Likeness? She did permit the use of her face, after all, but does her "likeness" extend to her other features? Consider also that since Page didn't actually pose nude, all the "blanks" that were filled in by the unauthorized developer were done from imagination - does that alter the analysis? At this stage, it's unknown whether Page had an anti-nudity clause in her contract, and whether a 3D rendering of her body would qualify for the purposes of an Appropriation claim (there's some case law indicating that it might qualify). Basically, there are a lot of unknowns.

Here's what makes the whole thing even more fascinating: Sony, Beyond's distributor, is also the distributor for The Last of Us. This puts them in an awkward situation vis-a-vis their relationship with Page. Twice in one year she's become a victim of a high-profile game they released.  And once the pictures are out in the world, they're out there; there's no getting them back.

It'll be interesting to see if Page decides to pursue the matter legally. In the meantime, I'm sure she's learned her lesson: no more video games with Sony.

Off With Their Heads! Graphic Content On Facebook Is Judged By A Disturbingly Uneven System

I've never seen a video of someone being decapitated. I don't think I could handle it, frankly. Whatever morbid curiosity I possess, there are limits to the lengths I'll go to satisfy it. But if your curiosity was harder to tame and you wanted to watch such a video, then you probably won't have to look very far. A few days ago, Facebook lifted a six month old ban on decapitation videos (the ban originated over a user-posted video that showed a Mexican woman beheaded for committing adultery). Facebook now allows users to share graphic videos of decapitations because, according to a Facebook rep:

When people share this type of graphic content, it is often to condemn it. If it is being shared for sadistic pleasure or to celebrate violence, Facebook removes it.

Condemnation or not, Facebook backpedaled today and removed the video that started the whole mess after a public outcry that included Facebook users and British Prime Minister David Cameron. Facebook insists, however, that it didn't change any of its policies, nor will it inherently prevent other violent videos from being posted in the future. Each video will be reviewed on a case by case basis. Turns out that public pressure was a good tool to use in this case because there really are no legal mechanisms that prevent Facebook from allowing users full reign to post whatever content they want. Here's why...

1. Facebook doesn't owe a contractual duty to protect its users from any kind of harm. In fact, Facebook states pretty clearly in its terms and policies that it does not

control or direct users' actions on Facebook and are not responsible for the content or information users transmit or share on Facebook. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook. We are not responsible for the conduct, whether online or offline, or any user of Facebook.

2. Even if Facebook didn't have contractual protection through the above disclaimer, any tort-based lawsuit against the social network would fail because federal law absolves internet service providers like Facebook from legal responsibility when obscene content is posted by their users. The Communications Decency Act (CDA), which was originally passed in 1996 to regulate pornography on the internet, states that

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

It's worth noting that the CDA also prevents users from suing Facebook if Facebook removes content it deems to be obscene or violent. This means that the CDA is a Teflon-coated Kevlar shielded brick wall sprayed in bullet repellant; Facebook is essentially lawsuit-proof.

So if Facebook can't be sued for letting users post the videos, why did it lift the ban after six months only to backtrack when the public freaked out? My guess is that in the absence of litigation, public opinion is all Facebook can rely on to drive its policies. And, until recently, the public has been largely silent on the issue of graphic, violent content. In other words, Facebook assumed that people didn't care about violent content, so it let users upload the videos until the outcry became impossible to ignore.

But this raises a question that I actually find more interesting. Why has Facebook's handling of violent content been so much less even than its handling of sexual content? (For those who don't know, Facebook has a blanket policy to remove all nude media from user accounts, including breastfeeding pictures.) Call me crazy, but I have a hard time understanding why a photo of a mother breastfeeding her child, even when her breast is fully exposed, is more offensive than a video showing some poor fellow having his head sawed off, even when the reason for posting that video is to criticize and condemn the act. And it's not like the public has been silent on this issue either. When I googled "Facebook bans nude pictures," I got 38 million results.

I personally don't have a problem with Facebook censoring any user content (the First Amendment, remember, only applies to government censorship... Facebook as a private party can censor as much as it wants), but I'd like for its censorship policies to at least have some semblance of uniformity, especially if it won't explain why a photo of a boob is somehow more onerous than a severed head, or why decapitation videos get individual reviews by the Facebook team, while nude pictures get a ban hammer. I hope that we can convince Facebook that sexual content deserve at least the same type of case-by-case scrutiny that it gives to decapitation porn. If not, I fear the puritanical society we may one day become.

Lawyers vs. Apps: A Grudge Match To The Death

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

Such was my mindset when I wrote this review of Shake last Monday, a new app that allows users to generate contracts right on their iPhones without the need for a lawyer. I wrote that the app had promise primarily because it does something I support: bring clarity to the law. My exact words were, "Shake makes [contracts] easy to make, easy to read and best of all, short. By doing this, it incentivizes people to use contracts in their work, and anything  that gets artists thinking about their work from a legal perspective is a good thing." But the app had several larger issues that I found troubling; namely, the lack of flexibility provided by stock contracts and the ambiguous usage of the term "work made for hire" in the freelancer contracts.

Three days after my review posted, I found myself on the phone with Vinay Jain, the app's chief legal officer, talking about my concerns. The call was very productive and when I hung up 45 minutes later, the following was clear to me:

1. Vinay was open-minded, thoughtful, and took my concerns seriously. Regardless of what he does with my input about the "work for hire" issue, I felt heard.
2. He puts a lot of time and energy into researching contract law and making sure that the intricacies of different state laws are addressed in each of the agreements provided by Shake.
3. The Shake team is committed to democratizing the legal transaction process by making it less intimidating.

In other words, I came away from the call with my reservations addressed and feeling deeply impressed by what the Shake team was trying to accomplish and the manner in which they were trying to accomplish it. The app certainly isn't perfect (what app is, frankly?), but there's room for growth, and it's pretty clear that growth will occur over the coming weeks and months. More important to me, Vinay assured me that the team behind Shake agree that their app cannot and should not be a replacement for lawyers. Per the app's FAQ page: "We designed Shake to let you quickly record agreements for everyday transactions that you otherwise might do with a verbal 'handshake' agreement... Shake isn’t for complex or high-stakes transactions. Are you selling your company? Shake is not for that. You should talk with a lawyer. Are you selling your used computer on Craigslist or hiring a freelance designer for a basic job? Shake is perfect for either of those."

My hope is that if you use Shake, you use it as intended - to make quick and easy contracts where you otherwise wouldn't - not as an excuse to get out of hiring a lawyer just because of inertia or disdain (lawyers aren't very well liked in this country, in case you didn't know). A good lawyer isn't a black hole for your money. A good lawyer protects and elevates you. The people behind Shake seem to understand that, so I will support them.

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

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

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

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

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

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

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

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

Legally Binding Contracts? There's An App For That

The future is now, and it's filled with apps that render most learned professions obsolete. On the docket for today: an app that replaces lawyers.  Hooray?

Shake is an app for your iPhone that allows you to "[c]reate, sign, and send legally binding agreements in seconds, all from your phone." The app contains a number of stock agreements, such as non-disclosures, buy and sells, personal loans, and freelancer contracts, with more types of agreements getting added in the near future. The app is simple to use as well. You answer several questions and then the app generates your contract, which both parties can sign right on the phone. Voila! Legally binding contracts without ever wasting a sheet of paper or paying for legal services!

A friend told me he thought this was really sketchy [although the signatures are digital, they are still legally binding], and several lawyer colleagues were horrified by the app. Being a lawyer myself, I understand why. No one wants to invest time and resources to learn a trade only to have that trade rendered obsolete by technology. Even if the technology is very pretty.

I spent a few days playing with Shake to see if my friend and colleagues were right, and despite some big problems with the app (see below), I've decided that I'm okay with it. Kind of. Shake does one thing really right, and for that reason, I can't hate it: contracts are hard; they're usually long and often boring to read and write. Shake makes them easy to make, easy to read and best of all, short. By doing this, it incentivizes people to use contracts in their work, and anything  that gets artists thinking about their work from a legal perspective is a good thing.

But there are several big caveats that prevent me from recommending the app outright.

1. Stock contracts offer no flexibility in their terms and are not tailored to the specific circumstances of your transaction. While this may not be a big deal for some of you, I strongly advise caution. Your work is unique to you, and only you know the terms that will make the transaction worthwhile.  Stock contracts, by their nature, cannot give you the flexibility to ensure that your best interests are being served.
2. Contract law isn't regulated by statute at the federal level, like trademark or copyright.  Contract law varies from state to state, and what may be legally permissible in one state may not be in another.
3. When you use language you didn’t draft yourself or authorize a lawyer to draft for you, you could end up consigning yourself to something in your own contract that you don't intend. For example, in Shake's stock freelancer agreement, it states that the freelancer's work is a "work for hire."  This is wrong because in most cases, a freelancer's work is only considered a "work for hire" in a very limited number of circumstances. To confuse matters, the agreement later uses language that directly contradicts what a "work for hire" actually is.  These types of drafting issues can certainly be fixed by a software update, but right now, the contract is  ambiguous and confusing at best, and unenforceable at worst.

If the choice is between using Shake or nothing, I'd tell you to use Shake every day of the week and twice on Sundays. But if you want a contract done right and in a way that serves your legal interest, draft it yourself or, even better, hire a lawyer.  

Tortious Interference on Parks and Recreation: How Rent A Swag Can Fight Back Against Tommy's Closet

[Parks & Recreation is the best comedy on TV these days, so in honor of its new season, I've taken a look at one story issue that's been bugging me since last season's finale.  Enjoy!]

Tortious interference occurs when a person intentionally damages the  business relationships of another.  Parks & Recreation occurs at 8:00pm, Thursday nights on NBC.  The former is a type of civil liability imposed on one party who financially harms another party.  The latter is an exceptionally sweet and intelligent sitcom that none of you are watching.  What do the two have in common?  A lot, surprisingly.

Last season, Tom Haverford - played by Aziz Ansari as a pop-culture obsessed, clothes horse, mogul wannabe - started a business called Rent-a-Swag, a store where the "teens, tweens, and in-betweens" of Pawnee, Indiana could rent "the dopest shirts, the swankiest jackets, the slickest cardigans, the flashiest fedoras, the hottest ties, the snazziest canes and more!"  Per the store's fake website, "before you waste your money on something that won't fit in a month, or fight with your parents over that sick velvet blazer they won't buy for you - step into Rent-A-Swag."  It's a good idea, right?

Anyway, the business took off and Tom was thisclose to leaving his job at the Parks and Recreation Department.  Unfortunately, Tom discovered that a competitor opened a rival store directly across the street called Tommy's Closet.  The competitor (whose identity I won't reveal here) informed Tom that Tommy's Closet was designed specifically to drive Rent-a-Swag out of business.

I don't know how the Parks & Recreation writers intend to resolve the situation (it will likely be sweet and goofy), but if I was Tom's attorney, I would advise him to sue the pants off (hehe) the owner of Tommy's Closet.  In tort law, there's something called tortious interference with an expected economic advantage and it gives business owners a way to stop those who maliciously attempt to drive expected consumers away from their business.  To win, Tom would have to prove that:

1. Tom had a reasonable expectation of economic benefit from the operation of Rent-a-Swag,
2. The competitor had knowledge of that expectation,
3. The competitor intentional interfered with Tom's expected economic benefit, and
4. Tom suffered economic damage as a result of the interference.

It wouldn't be very entertaining to watch, but Tom would most assuredly win a lawsuit against his competitor.  First, Tom had a good reason to expect an economic benefit; he was already receiving it!  His business was booming during the tail end of Season 5.  Tom was even able to hire employees and pay dividends to his stockholders.  Second, the competitor told Tom (in front of other people, I might add... witnesses!) that he was aware of Rent-a-Swag's financial success.  In fact, during the Season 5 finale, he tried to buy Rent-a-Swag from Tom because it had become a known moneymaker.  Third, the competitor admitted his desire to drive Tom out of business out of a misplaced sense of revenge and was actively luring customers away with free pizza and prizes.  Finally, we see in the Season 6 opener that Tommy's Closet had succeeded in drawing customers away from Rent-a-Swag; the episode shows Tom alone in his store, all the customers having fled across the street.  Tom has clearly suffered an economic damage.

While these kinds of malicious actions are rare, they do happen.  Therefore it's important for all artists and small business owners to be aware that there are options available to them should they become victims of tortious interference.  As a rule, the law doesn't look kindly upon those who open a business solely to spite another business.  In the real world, Tom has options - and so do you.  Of course, this is TV and I'm sure that whatever the Parks & Recreation writers come up with, it will be a hell of a lot funnier than watching this play out in a courtroom.

[You can also make a credible argument that Tom has a trade dress claim - a form of trademark infringement that protects a store's interior design - against the competitor since we learn that the interior of Tommy's Closet looks exactly like the interior of Rent-a-Swag.]

Don't Throw Out The Baby With The Bathwater: Changing Laws, The "I Have A Dream" Speech, And Copyright Policy

This Wednesday is the 50th anniversary of Martin Luther King's "I Have A Dream" speech. If you're like me, then you've probably seen snippets of that speech a hundred times, but never seen the full unedited version. That's because the speech is protected under copyright law until 2038, and anyone who copies, distributes, shares, or posts a video of the speech online will be violating copyright law and will legally owe restitution to the video's owner... Sony.* [Like when Sony ordered advocacy group Fight For The Future to remove the video from its website.]

Am I the only who thinks this is terrible? What kind of policy allows a major corporation to sue someone who wants to share with others THE ICONIC CIVIL RIGHTS MOMENT OF OUR TIME? Who is this policy protecting?

You may have noticed that I'm pretty vocal when I think changes should be made to U.S. policy, specifically copyright law. As a result, I've been accused several times of pursuing a "throw out the baby with the bathwater" agenda. But that's not really accurate since I've never called for scrapping laws wholesale. I have, on the other hand, advocated for revising laws that don't work as intended. I personally see advocating for better and smarter laws as my duty, not just as a lawyer, but as an American citizen (which, not so ironically, was kind of the point of Dr. King's speech).

And what's wrong with supporting change anyway? Not to be overly dramatic here, but America was founded on this whole idea of "it's not working out, so let's do something better." We went to war with England because we didn't like the way they governed us. We constructed a republican system of government that permits us to remove and replace politicians we don't like. We gave Congress the power to revise, update, and repeal laws because we recognized that people are imperfect and they will pass imperfect laws. When a law doesn't achieve its goal, it should absolutely be amended. The U.S. Copyright Act alone has been amended at least 10 times since 1790.

I keep saying it, but it bears repeating: copyright law wasn't created solely for the purpose of rewarding the artist. It was also designed to foster originality and ingenuity for the betterment of society (the founding fathers didn't measure capitalist success purely through personal wealth. Community prosperity was also a driving factor) and to shield artists from theft. It wasn't intended to be used as a weapon to attack others. Which is why the problem isn't that Sony owns the copyright to Dr. King's speech; the problem is what it can do to harm individuals who wish to share it. Simply put, Sony has the muscle and will to litigate against anyone who posts the video, regardless of the intent of the individual or their ability to fight back. And I don't think that's right.

In that spirit, here are two ideas that I think will be effective in revamping copyright law to better serve the American people.

1. Shorten the term limits on copyrights. Yeah, I've talked about this a lot. That just shows you how much I care about this issue. Copyright law was not designed to allow copyright owners to make money off a work in perpetuity. In fact, under the Copyright Act of 1790, copyright terms were set by the founders for a mere 14 years, specifically to prevent perpetual ownership. By shortening copyright terms, major corporate copyright owners such as Sony won't be able to bully individuals when they share something as innocuous and educational as Dr. King's speech. You can read a more complete take on that here.
2. Create exemptions in our copyright laws for works that hold special historical significance. The "I Have A Dream" speech literally changed lives and shaped events in the 20th Century. Yet under our current copyright law, it's treated like every other work of artistic expression. A work of such historic stature shouldn't be owned by any one entity. It belongs to all Americans in the same way the Declaration of Independence and the Emancipation Proclamation do and it should be available to everyone, free of charge.

Change is in our national DNA. History has borne that out repeatedly, so why fight it? Dr. King believed that. Who are we to assume differently?

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* Dr. King himself owned the copyright and even sued to prevent unlawful reproductions of the speech so that he could distribute profits from it to civil rights causes. After his death, the copyright passed to his family, who sold the copyright to EMI in 2009. EMI was purchased by Sony in 2011.