Copyright Case Over Richard Prince Instagram Show to Go Forward; New York Times, July 20, 2017

Andrew R. Chow, New York Times; Copyright Case Over Richard Prince Instagram Show to Go Forward

"Richard Prince, who has pushed the legal limits of artistic appropriation for decades, will continue to fight for his art in court. This week, a federal judge in New York refused to throw out a photographer’s lawsuit against Mr. Prince over Mr. Prince’s use of an image in an exhibition. The case will continue, and could set a precedent for how the fair-use doctrine relates to Instagram, the photo-sharing app."

Theft of intellectual property is a crime; St. Cloud Times, June 17, 2017

Karen Cyson, St. Cloud Times, sctimes.com; Theft of intellectual property is a crime

[Kip Currier: Wow...do we ever need more Intellectual Property education and awareness; lots of misconceptions and confusion out there. (Brief aside: See this story I posted a few days ago highlighting widespread confusion between copyrights and trademarks.)

This Op-Ed by Karen Cyson presents a wildly unbalanced understanding of the checks-and-balances codified within U.S. copyright law; regardless of whether one is or is not swayed by the facts of the alleged infringement. One of the biggest issues I have with this piece is that copyright law is often much more grey, more dependent on the specific facts of each particular case than Cyson makes it out to be:

No mention at all about whether the defense/doctrine of fair use might be applicable.

No acknowledgement of the increasing role of transformativeness within copyright law.

No insights into the downsides of copyright for the quilting community. No benchmarking comparisons made between the fashion industry (where there is no copyright protection for designs, at present, though various bills have been introduced over the past several years) and the quilting community.

And no distinctions between "attribution" and "infringement".

For an informative, more balanced look at the issues, read Tech Dirt's Glyn Moody (2012) post What Quilting's Legal Battles Can Teach Us About Copyright  ]

"We all know copying is wrong. If someone else wrote it, designed it, sang it, filmed it, drew it or photographed it, it's wrong to copy their work. It's illegal...

Theft of intellectual property — anyone's — is a crime. You can quote me. With attribution.

This is the opinion of Karen Cyson, a child-care provider in Stearns County and coordinator of Central MN Mensa. Her column is published the third Sunday of the month."

Fair Use Too Often Goes Unused; Chronicle of Higher Education, May 10, 2017

Noah Berlatsky, Chronicle of Higher Education; 

Fair Use Too Often Goes Unused

"Only if authors can’t track down permissions holders, [Julia] Round [editor of the journal Studies in Comics] said, does the journal consider printing small images under the legal doctrine of fair use.

But while publishers want authors to get permission, the law often does not require it. According to Kyle K. Courtney, copyright adviser for Harvard University in its Office for Scholarly Communication, copyright holders have certain rights — for instance, if you hold rights for a comic book, you determine when and by whom it can be reprinted, which is why I can’t just go out and create my own edition of the first Wonder Woman comic. But notwithstanding those rights, fair use gives others the right to reprint materials in certain situations without consulting the author — or even, in some cases, if the author has refused permission...

Seeking permission may seem safe, but it can have serious ethical and practical downsides."

The tech industry is eroding copyright law. Here's how to stop it; Los Angeles Times, May 10, 2017

Jonathan Taplin, Los Angeles Times; The tech industry is eroding copyright law. Here's how to stop it

"The only way to get Internet companies to honor the widely accepted understanding of fair use is to make it law. Although the current legal definition makes one thing crystal clear — you cannot use a work in its entirety and still claim fair use — it leaves many aspects of the doctrine open to interpretation. The Registrar of Copyrights should codify a 30-second time limit for audio and video clips and require that content be used in a transformative or interpretive way.

With concrete guidelines in place, regulation would have to be built in. For instance, when a user asserts fair use for a work that YouTube identifies as being blocked by the copyright holder, the clip would have to be sent to a human screener for evaluation. If it is longer than 30 seconds or does not appear in a transformative work, the clip would remain blocked. YouTube already has this process in place for screening pornography, ISIS videos and the like.

The ambiguous definition of fair use allows for its continued abuse, and this abuse has become a gateway for the further eroding of copyright law. By now it is well understood that the rise of tech monopolies such as YouTube and Google has hastened the decline of publishing industries. If we don’t move to safeguard copyright law now, there will be no new content to remix."

London Book Fair 2017: Judge Pierre Leval Defends Google Books Decision, Fair Use; Publishers Weekly, March 16, 2017

Andrew Albanese, Publishers Weekly; 

London Book Fair 2017: Judge Pierre Leval Defends Google Books Decision, Fair Use

"In a packed room for the LBF’s 2017 Charles Clark Memorial Lecture, Judge Pierre Leval, America’s foremost copyright jurist and a judge on the U.S. Court of Appeals Second Circuit, told attendees that Google’s program to scan tens of millions of library books to create an online index “conferred gigantic benefits to authors and the public equally,” and did not “offer a substitute or interfere with authors’ exclusive rights” to control distribution.

“It was,” Leval concluded, “not a, quote, close case.”

Leval delivered his remarks in what was billed as a debate with intellectual property lawyer and former General Counsel for the U.S. Copyright Office, Jon Baumgarten. But at the outset, both Leval and Baumgarten—long time acquaintances—downplayed the debate aspect. Rather, at a time when proposed exceptions to copyright law have many publishers in the U.K. and Europe on edge, Leval spoke mainly as an ambassador for the American doctrine of fair use...

The key to American fair use, he said, was the flexibility the law gives judges. While he acknowledged there is something to be said for “predictability and bright line rules,” he insisted that hard and fast standards do not best serve the purpose of copyright...

In his portion of the talk, Baumgarten reiterated the publishing community’s main complaints with the decision, and about fair use in the digital age more broadly. Most prominently, that the decision overly expanded the right to freely copy others’ works, which, if widely practiced in the digital age will harm rightsholders. He also bemoaned what he saw as the courts’ expansion of what “transformative” means."

ARTIST TURNS CONTROVERSIAL TRUMP QUOTES INTO COMIC BOOK COVERS; Comic News via Comic Book Resources, 1/14/17

Anthony Nash, Comic News via Comic Book Resources; ARTIST TURNS CONTROVERSIAL TRUMP QUOTES INTO COMIC BOOK COVERS

[Kip Currier: Clever examples of fair use "transformativeness"--"remixing" bonafide Donald Trump quotes with actual copyrighted comic book covers that have been satirically transformed, both textually and visually--by cartoonist Robert Sikoryak.]
 
"Cartoonist Robert Sikoryak, work has appeared in “Raw,” The New Yorker and Nickelodeon Magazine, has transformed some of the more controversial statements by President-Elect Donald Trump into parody comic book covers in a project he’s called “Unquotable Trump.”"

Is Coopting Graffiti Artist's Street Cred A Fair Use?; Mondaq, 12/5/16

Nicholas M. O'Donnell, Mondaq; Is Coopting Graffiti Artist's Street Cred A Fair Use? :

"The estate of Dashiell "Dash" Snow, better known as graffiti artist "Secret Snow"— has sued McDonald's over allegedly infringing use of Snow's street art in McDonald's dining rooms. The lawsuit in the Central District of California is the latest in a series of cases in which street artists are asserting their rights in copyright without any concession about whether the creation has other legal issues (i.e., trespassing or vandalism). Based on the survival of other recent similar cases, this latest case could be a headache for the giant restaurant chain, though it may have interesting fair use arguments based on the contrasting nature of the street vs. corporate uses...

The Dash Complaint also picks up on the theory that survived dismissal in the Tierney v. Moschino case involving street artist "Rime"—namely, that identifiers in the images themselves violate the "copyright management information" (CMI) provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 1202. This is somewhat different than the Tierney case, however, because in that matter the plaintiff alleged that deleting his signature interfered with CMI, while here Dash's estate argues that the presence of his signature creates an unwarranted association between him and McDonald's.

The case is a reminder of how quickly what was once examined has now become routine—the idea that street art, whether or not painted on property with permission—can be protected under copyright."

Have I Got a Play for You; Slate, 11/25/16

Jordana Williams, Slate; Have I Got a Play for You:

"Flipping now through our patchwork golem of a script, aghast, I estimate that 80 percent of what we performed actually appears in the original Company. We left lengthy passages essentially unaltered, but fully rewrote others. Even when the lines and lyrics were unchanged, we took subtler liberties, like converting “Being Alive,” Bobby’s solo meditation on loneliness and longing, into a full company number featuring three-part harmony...

So, where were the grown-ups when all of this was happening? Why didn’t they stop us, or at least advise us that our violations of copyright ranged from artistically disastrous to legally actionable? Now that I have kids of my own, I can guess why they stepped back and let us go hog wild. They knew we’d have the rest of our lives to question and edit ourselves (and acquire permission before monkeying with someone else’s art). The heedlessness we displayed would be repellent in an adult, but is arguably kind of awesome in a bunch of kids.

My son is working on his first musical, the soon-to-be smash hit Army Chickens. He’s a very practical boy, so early on, he came to my husband and me with a bunch of questions about budgets and ticket prices and actor pay and set construction needs. “No!” I shouted, probably too vehemently. “Just write the thing however you like.” And why not? He’ll never know what his wildest dreams are if he doesn’t start out as if nothing is impossible."

Abbott and Costello Heirs Lose Appeal Over Broadway Play's Use of "Who's on First" Routine; Hollywood Reporter, 10/11/16

Eriq Gardner, Hollywood Reporter; Abbott and Costello Heirs Lose Appeal Over Broadway Play's Use of "Who's on First" Routine:

"On Tuesday, the Second Circuit Court of Appeals affirmed dismissal of a copyright lawsuit brought by the heirs of William "Bud" Abbott and Lou Costello against producers of the Tony Award-nominated play Hand to God. However, the appeals court didn't accept dismissal for the same reason the lawsuit was initially thrown out. And in coming to its decision, the 2nd Circuit raises the possibility that the world- famous comedy routine "Who's on First?" is no longer under copyright."

Can You Trademark a Cocktail Recipe?; Daily Beast, 9/27/16

Philip Greene, Daily Beast; Can You Trademark a Cocktail Recipe? :

"One of the most stressful drinks for a bar to put on its menu is one of the simplest: the Dark ‘n Stormy®. It’s certainly not the preparation that causes anxiety—just about anybody can make a serviceable version of this refreshing rum and ginger beer highball—but the brand of rum used can cause trouble.

It’s one of the few drinks (along with the Painkiller®) whose name is actually trademarked. In this case, Gosling’s Rum controls the moniker Dark ‘n Stormy, and if you put the drink on a menu it better be made with that brand of rum. If not, you might just get a cease and desist letter.

This, naturally, raises the question: Why aren’t more bartenders trademarking cocktail names? It’s a simple query with a long answer. Even as a trademark attorney and a cocktail geek, with one foot firmly in each field (well, maybe one is perched on the rail), I find it complicated to untangle."

STRANGER THINGS GETS BUFFY-STYLE CREDITS IN FAN VIDEO; Comic Book Resources, 9/26/16

Jacob Hill, Comic Book Resources; STRANGER THINGS GETS BUFFY-STYLE CREDITS IN FAN VIDEO:

"Considering its heavily ’80s-influenced tone, YouTuber Tony Harley decided to re-style “Stranger Things” with one of the most iconic opening sequences of the 1990s — the title sequence of “Buffy the Vampire Slayer.” It makes sense as both are stories about kids struggling against a strange supernatural threat and both star awesome ladies with three-part names. Millie Bobby Brown takes the place of Sarah Michelle Gellar as the lead-in character, while Winona Ryder gets the place of honor at the end of the credits — a place held by “Anthony Stewart Head as Giles” and later “Alyson Hannigan as Willow”."

You've Gotta Love This Stranger Things / X-Men Mash-Up; Gizmodo, 8/29/16

Germain Lussier, Gizmodo; You've Gotta Love This Stranger Things / X-Men Mash-Up:

"With all the 1980s influences used in Stranger Things, there’s little doubt that the Duffer brothers thought of Eleven as a bit of a mutant. In another universe, maybe she was a member of the X-Men—which is why this mash-up by artist Lance Schibi is so fun.

It takes the cover of X-Men #134, the first appearance of Jean Grey at Dark Phoenix, and flips it to the upside down world of Stranger Things."

Episode 709: The Quiet Old Lady Who Whispers "Fair Use"; Planet Money, NPR, 7/1/16

[Podcast] Planet Money, NPR; Episode 709: The Quiet Old Lady Who Whispers "Fair Use" :

"...[A]fter writing his own Goodnight Moon spinoff, Keith wanted to know: Could he sell it? Is that even legal?

Today on the show, we dive into the world of copyright and fair use. Just where is the line between inspiration and stealing?"

Photo Copyright: Oscar Wilde, Richard Prince, and Your Instagram Content; Huffington Post, 3/15/16

Kim Farbota, Huffington Post; Photo Copyright: Oscar Wilde, Richard Prince, and Your Instagram Content:

"Richard Prince, an "appropriation artist" well-known in creative spheres, is showing blown-up screen shots from his Instagram feed in renowned Manhattan galleries. The contemporary counterparts of Wilde's Gilded Age fan base buy the inkjet-on-canvas prints for upwards of $100,000. The original snappers hear through the proverbial grapevine that their filtered selfies are featured in high-end art shows.

Copyright law has evolved markedly in the century separating Richard Prince from Napoleon Sarony. On the shoulders of Andy Warhol and Jeff Koons, Prince has made a decades-long career selling slightly altered versions of other people's images. He evades copyright infringement liability through legal principles that allow certain "transformative works" to make use of copyright-protected materials without the owner's consent. Broadly, a transformative "fair use" alters or recontextualizes the original work for the purpose of commentary, criticism, or parody. All of the pieces in the Instagram-based New Portraits series include Prince's own original "comment" within the captured frame, submitted via his Instagram handle, "richardprince1234". He also enlarges the images and moves them from digital to print media. The original photos, which cover most of the space on the printed canvases, remain otherwise untouched.

Donald Graham, a career photographer whose portrait of a Rastafarian man was involuntarily featured in New Portraits, is not impressed. In a complaint filed in federal court this January, Graham calls Prince's work a "blatant disregard of copyright law". Graham's suit challenges whether Prince's transformations are sufficient to trigger "fair use" protection...

At the intersection of copyright and social media, balancing the benefits of exposure with the risks of theft and appropriation is an evolving challenge."

DC universes collide in epic final ‘Justice League: Crisis’ fan trailer; ComicBookResources.com, 12/18/15

Kevin Melrose, ComicBookResources.com; DC universes collide in epic final ‘Justice League: Crisis’ fan trailer:

"UltraSargent has debuted what’s described as the “final trailer” in the series that began in October, and it’s by far the longest and most ambitious yet. Using footage from DC Comics live-action adaptations dating back to Christopher Reeve-era Superman, the four-and-half-minute trailer offers a new take on Crisis on Infinite Earth, with Grant Gustin’s Flash at its center... As it stands, thought, Crisis draws from wide array of sources, from 1989’s Batman and 1990’s The Flash to Smallville and Supergirl. NBC’s short-lived Constantine even shows up."

Heirs of Abbott and Costello Lose Copyright Claim Over ‘Who’s on First’; Associated Press via New York Times, 12/17/15

Associated Press via New York Times; Heirs of Abbott and Costello Lose Copyright Claim Over ‘Who’s on First’ :

"A federal judge ruled on Thursday that Abbott and Costello’s heirs had failed to get past first base with copyright claims against the producers of the Broadway play “Hand to God,” in which a character uses a sock puppet to perform part of the comedians’ “Who’s on First” routine...

Judge George Daniels of United States District Court in Manhattan tossed out the lawsuit on Thursday, saying the play transformed the original routine enough that it did not violate copyrights."

Thanks to a landmark ruling, information just got a little more free; Atlantic, 10/20/15

Robinson Meyer, Atlantic; After 10 Years, Google Books Is Legal: Thanks to a landmark ruling, information just got a little more free:

"In other words, Google Books is legal.

And not only that, but the case is likely resolved for good. In 2012, a district court ruled that Hathitrust, a university consortium that used Google Books’s scans to make books accessible to blind students, was not only a legal form of fair use but also required by the Americans with Disabilities Act. Experts say that the Supreme Court is unlikely to hear an appeal, because so many district court judges, and two different federal circuits, have found themselves so broadly in agreement about the nature of transformative use online.

“The Authors Guild is deluding itself to think that this is an area that is open and controversial in the view of the lower courts,” Grimmelmann said.

This isn’t only good news for fans of Google Books. It helps makes the legal boundaries of fair use clear to other organizations who may try to take advantage of it, including libraries and non-profits.

“It gives us a better senses of where fair use lies,” says Dan Cohen, the executive director of the Digital Public Library of America. They “give a firmer foundation and certainty for non-profits.”"

Appropriation art meets Instagram: Is copyright law ready?; MSNBC, 5/26/15

Christopher Buccafusco, MSNBC; Appropriation art meets Instagram: Is copyright law ready? :

"Prince is an appropriation artist; he takes other people’s works and repurposes them in new, slightly different ways. The field of appropriation art dates back to Marcel Duchamp’s Fountain, a signed and dated urinal laid flat on the ground, and it includes Sherrie Levine’s re-photographing of famous Walker Evans images. An appellate court in New York recently declared that Prince’s modifications to photographs taken by Patrick Cariou were fair use, insulating Prince from liability for copyright infringement.

In his new work, Prince isn’t borrowing from established artists—he may be borrowing from you. His new show in New York’s Frieze Art Fair includes blown up images taken (I assume, without authorization) from other people’s Instagram accounts. According to The Washington Post, Prince left the images and the usernames intact, but he substituted his own, somewhat unusual comments beneath the images.

Will the original Instagram users be upset? They might be after they hear that Prince’s works sold for $90,000 each. Will they successfully be able to sue him? Probably not.

Again, the reason why will be the fair use doctrine. Copyright law gives people rights to encourage creativity. Although copying someone else’s creative work without paying for it is often against the law, certain kinds of copying isn’t. The fair use doctrine protects some kinds of copying when doing so is beneficial to society. For example, a reviewer can reproduce a portion of a book or movie in order to criticize it."

Lindsay Lohan Sues 'Grand Theft Auto V' Maker [Updated]; Forbes, 7/2/14

Erik Kain, Forbes; Lindsay Lohan Sues 'Grand Theft Auto V' Maker [Updated] :

"Last December we reported that actress and controversy magnet Lindsay Lohan had called her lawyers about the inclusion of a character with her likeness in the blockbuster video game Grand Theft Auto V...

The suit claims that the character Lacey Jonas is an “unequivocal” reference to Lohan, depicting everything from her likeness to her clothing line to the Chateau Marmont hotel where Lohan once lived...

According to the Digital Media Law Project: “As a general matter, you will not be held liable for using someone’s name or likeness in a creative, entertaining, or artistic work that is transformative, meaning that you add some substantial creative element over and above the mere depiction of the person. In other words, the First Amendment ordinarily protects you if you use someone’s name or likeness to create something new that is recognizably your own, rather than something that just evokes and exploits the person’s identity.”

I’m not a legal expert, but Rockstar seems to fall well within this guideline. The character in question was not specifically Lohan, and engages in entirely fictional activities that are designed to parody a certain type of celebrity. I sincerely doubt that this case has legs."

Okkervil River Responds to Don Henley: Copyright Laws Kill Art: Will Sheff writes artists "communicate back and forth with each other over the generations, take old ideas and make them new"; Rolling Stone, 6/4/14

Will Sheff, Rolling Stone; Okkervil River Responds to Don Henley: Copyright Laws Kill Art: Will Sheff writes artists "communicate back and forth with each other over the generations, take old ideas and make them new":

"All of these artists, on some level, drew from a folk tradition, and, as I got deeper into their work, they led me to old-time American folk and blues – to artists like Woody Guthrie, Robert Johnson, Dock Boggs, Skip James and the Carter Family. As I fell deeper and deeper in love with these artists I started noticing something that they all had in common – they all copied each other. Woody Guthrie took the melody from the Carters' "Little Darling Pal of Mine" and he wrote "This Land Is Your Land." Robert Johnson took the already-existing blues tales about selling your soul to the devil and they ended up incorporated into his whole image. Bob Dylan took the Scottish ballad "Come All Ye Bold Highway Men" and used it for "The Times They Are A–Changin'." Nina Simone transformed the ridiculous Morris Albert MOR ballad "Feelings" and improvised re-written lyrics, stretching the song over the 10-minute mark and creating something harrowing from it.

I realized that this is what artists are supposed to do – communicate back and forth with each other over the generations, take old ideas and make them new (since it's impossible to really "imitate" somebody without adding anything of your own), create a rich, shared cultural language that was available to everybody. Once I saw it in folk art, I saw it everywhere – in hip-hop, in street art, in dada. I became convinced that the soul of culture lay in this kind of weird, irreverent-but-reverant back-and-forth. And I concluded that copyright law was completely opposed to this natural artistic process in a way that was strangling and depleting our culture, taking away something rich and beautiful that belonged to everyone in order to put more money into the hands of the hands of a small, lawyered few."