We Are All Copyright Owners

NOTE:  Apologies in advance for the American-centric post, but what follows can only universally apply in the context of U.S. copyright law.

Certain prominent figures making proposals for more limited copyright protections like to repeat the slogan, “We are all authors/creators now,” meaning now that we have the Internet and social applications designed to facilitate easy sharing of all sorts of content. What these folks neglect to mention is that we were all creators long before the Internet, which also means that we were all also copyright owners — and still are.  And just because most of us will never need or want to enforce copyrights, that doesn’t mean we should be fooled into passively abdicating the right just to make life easier for Internet companies.  One of the ironies I find intriguing about this subject is that so-called copyright reformers will argue that in the digital age, the general public needs to worry less about copyright, while I say the Internet is the reason everyday citizens ought to worry more about copyrights than they ever have. It doesn’t seem rational that in a time when our personal photographs, for instance, migrate from shoeboxes to global, shared networks that this the moment to suddenly care less about what might happen to these assets.

In the kerfuffle over the role of copyrights in the relationship between creators of works and consumers of works, the right itself is too often portrayed as a privilege enjoyed solely by creators. Somewhere in the conversation, we forget that nearly all citizens of the U.S. are copyright owners because the right applies universally and automatically to everyone who owns personal writings, photographs, videos, etc., regardless of the amateur status of these works.  But, if the corporate-interest “reformers” can count on Americans to forget or not care that they are copyright owners, then perhaps Americans won’t notice what would be lost by acting on a proposal to make copyright registration mandatory.  It might seem wise or efficient to suggest that those who consider their works commercially or socially valuable (we’ll call them artists) should be required to declare a desire not to have their works used without permission via a registration and fee process with the Copyright Office.  But if this reform were to become law, it would instantly strip copyright from every citizen who will certainly never bother to register his/her personal, amateur works, and it would strip the right at exactly the time in history when it might actually matter to the average citizen.

Ten years ago, we weren’t uploading images of ourselves, our kids, etc. into a computer network where anyone can duplicate, manipulate, and redistribute them at will.  Granted, if some unknown troll takes one of my personal photos off Facebook, monkeys with it, and redistributes it, copyright doesn’t afford me much protection because the troll is anonymous. But suppose my friends, a Jewish white couple who’ve adopted two children from Africa, post a casual, family snapshot for us to enjoy, and the Society for the Preservation of American Christianity and Whiteness uses their portrait to produce an advertisement calling biracial, Jewish families an “abomination?”  Or maybe Sarah Palin’s political operatives decide my daughter’s picture suits one of their core messages; and instead of civilly suing her organization for copyright infringement, I have to find said political operative and beat the snot out of him.  Personally, I think it’s better to leave intact the civil remedies available, imperfect as they may be.

Remedies aside, though, the most significant loss that might be felt in years to come is the social norm of respect as something of a byproduct of universal copyright, even if that had nothing to do with the intent of the constitutional clause.  On the broadest level, we simply do not erase the rights we have on the grounds that we rarely need to enforce them.  It is narrow-minded (and usually profit-motivated) for someone to suggest that we ever should view any right this way.  For instance, the right not to be discriminated against for race, religion, sexual orientation is codified into law and applies universally, regardless of how frequently or not this right needs to be enforced.  Would we create a system in which, for instance, a gay person should officially register his desire not to be discriminated against, thereby implying that discrimination is okay absent said registration?  Or is it more civilized to say that discrimination is socially intolerable and therefore illegal?

Perhaps most importantly, it is essential that people realize that the American public gains nothing by giving up automatic and universally applied copyright while the rationale for mandatory registration best serves the interests of a handful of Internet companies.  These businesses want to digitize, organize, synthesize, and monetize every bit of data they can without the expense and hassle of dealing with pesky things like the rights of users who share data and content in exchange for the “free” applications being used.  As such, many reforms proposed by academics and Internet activists are insidiously designed to get the public to slowly and voluntarily give up rights (e.g. privacy) that impede what they often call the “free flow of information.”  This is jargon, that translates to mean “what’s yours is ours.”  Mandatory registration of copyrights would instantly disenfranchise nearly all Americans from a right they’ve enjoyed since 1978. Personally, I don’t think we should cede that ground too casually.

© 2014, David Newhoff. All rights reserved.

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24 comments

  • Great post David.

    “Would we create a system in which, for instance, a gay person should officially register his desire not to be discriminated against..”

    They would probably go a step further and require said person carry their anti-discrimination papers at all times.. otherwise how would we know they actually have Constitutional protections? …

  • Echoing AudioNomics, I must say “great post!” as well. In fact, this also comes on the heels of the Gov raising their copyright registration fees. It can be hard enough for me to shake lose that kind of money unless I’m putting together a collected works catologue with about 10-20 songs in it. It has been “your work is considered ‘copyrighted’ at the moment of its creation…the arguments the tech industry are making against copyright are just adding fuel to the fire for ‘free-hadists’. (i know they hate that term…too bad)…If the tech industry would listen, instead of screaming “all of your shit is now OURSSSS”…they may start to hear the sound of true artists walking away, not publishing their works anymore, maybe a ‘showing’ to small circles of trusted friends. The things I’m not publishing at this point, as much as I really would like to, are just going to be held back from most public consumption. In my updating of my will, all of those works will be destroyed upon my demise. And I don’t claim to be some “amazing genius that the world must hear in order to feel itself being treated to truer art than they’ve ever seen or heard!!!”…LOL! (yes, some artists are that crazy, i know a few)…but usually a society that is well fed on good art, without being sold and promoted to on how amazing Beiber or Jay-z is, will gravitate to what really lifts them and speaks to them, and the WORLD decides who its truly great artists are, and the artist can support themselves through releasing it….NOT the head of a tech/internet/socialmedia company or record label that’s buying an island with the proceeds, “to hell with the copyrights, they can sue me, i’ve got more money for defense lawyers than God!”. BTW, it was nice to see that Monster at least lost to the Beastie Boys (copyright owners of course). Thanks again!

  • I don’t support copyright registration per se.. If copyright is to exist, it should not be applicable as a regulation on ordinary personal dealings. That is, copyright should only apply to industrial uses of works: an industrial regulation against printers and publishers (and sure, Internet companies) as it was originally intended. But copyright should not in any way interfere with the ability one private person to share information with another person.

  • And honestly, inconvenient uses of copyrighted works is already protected by fair use. I don’t see how a neo-Nazi using copyrighted works by Jews to criticize them would be anything other than fair use, in fact, that’s canonical example of fair use right there (and yes, I’m Jewish by the way).

    If freedom of speech just protected mainstream speech, then it wouldn’t be necessary. In fact, the entire point of freedom of speech is to protect speech like neo-Nazi speech. It’s to protect speech is NOT typically acceptable with currently social norms, the kind of speech that would likely be banned if freedom of speech didn’t exist. So offensive speech is exactly what is being protected.

    Fair use also is also to protect uses of copyright works that are HIGHLY UNLIKELY to be condoned by the original copyright holder. If they were condoned, the arguments follows, what is the point of fair use then? Clearly, you could have gotten permission or a license!

    No, fair use is most applicable in situations where a copyright holder has every incentive to say NO to that use. Perfect example of such use of the work is to use that work in a way to criticize or degrade the work or the overall ideology of the original copyright holder. This is the primary reason for fair use’s existence.

    • David Newhoff

      There’s nothing automatic about fair use. If a claimant wants to make a case for infringement, a litigator will either take it on or won’t, and a judge will adequately apply the four factors or won’t. Fair use is a part of copyright law because we in the U.S. so highly value free speech, but even a fair use argument has its limits. For instance, the difference between parody and satire. The former can be considered in fair use arguments, the latter cannot. I’m simply saying that I wouldn’t abandon the right of remedy regardless of how unlikely I am ever to need it.

      • Although the raison d’etre for fair use is to allow uses of works that would not be condoned by the original copyright holder. That’s why the criticism angle is so strongly protected by fair use. It’s not some kind of “get out of licensing”-card.

      • David Newhoff

        Not necessarily. I would agree that free speech is tested and strengthened when we protect unpopular speech (and I’d argue that protecting the copyrights of an unpopular speaker is part of this), but fair use does not always involve conflict. There are plenty of fair uses that happen every day without controversy, without a case, and often without any of the parties knowing much about fair use. Fair use exists to protect claims of infringement from stifling certain kinds of speech, like social commentary, that we value very highly; but it doesn’t assume that all fair uses would be unsanctioned by all copyright owners.

      • It just comes down to the fact that if the use is likely to occur without fair use, then fair use doesn’t need to exist for that use. Do you see this? It can be licensed through the market. If permission is likely to be granted under reasonable terms, then fair use makes no sense. I mean, do you understand this?

        Thus it is core to fair use that is the primary purpose of fair use is to protect uses of a work that are not in the interests of the copyright holder to license, or would other words be jeopardized if getting permission from the copyright holder was required.

        That is, the very idea fair use itself flies in the case of the idea that the copyright holder has sovereignty over how their work is used. Indeed it’s very clear that the purpose of copyright is economic incentive to create, and that when the economic incentive no longer exists, the control goes away with it. There is no other purpose to copyright.

        Statutory licensing is another example here (something explicitly permitted in the Berne Convention). That is, the government can license an entire category of works without consultation of the original copyright holders. And without the right of them to opt-out of the license.

        This is the case for many high profile uses of music (performance rights especially) in much of the world, but it can apply to any form of copyright.

        If Congress wanted to, they could make the argument that copyright is not working anymore and replace THE ENTIRE SYSTEM with statutory licensing, and I think they would still be in compliance with international copyright treaties. Personally, I think they should do this, and for most uses of works. I think it ought to be possible to get a blanket license from the government for “music streaming” for instance, and start your own Spotify competitor with no bureaucracy.

      • I’m sorry but this fair use thing really core here, that I just need to keep expanding and rewording this point.

        If gaining permission from a copyright holder under reasonable terms for a use is possible, then fair use does not have to exist for that use.

        Fair use makes sense on uses of a copyrighted work that is not in the interests of the original copyright holder, or something like Google Books where there are so many copyright holders that making such a service with explicit permission from all the stakeholders would be damn near impossible.

        These are the kinds of things fair use is for. It’s not a way to cheap out on buying a copyright license! It’s for situations where getting a license would be unrealistic to begin with!

        And it comes down to it: fair use is the strongest evidence of copyright’s purpose as an economic tool, not as a method to allow the control of information to promote the author’s speech over others.

        It’s not surprising in countries who don’t share this opinion as strongly as in the US (eg. France), fair use is weaker if not non-existent.

      • David Newhoff

        M, fair use is a principle and a set of standards with precedent cases. My initial response to you regarding “inconvenient uses of copyrighted material” was and is that you cannot say universally that xyz use is automatically protected under fair use. In any given case, there is the viability of the copyright holder’s claim of infringement and the user’s argument for fair use, and litigators on both sides would weigh their arguments before proceeding. I’m not going to wade into Google Books right now. Too much else going on.

      • I agree David. Fair use as vague as fuck, and it’s one of the huge problems with copyright right now (not as big as the fact as copyright enforcement applying to individuals, which is largely novel thing that started in the last decade or so). But what I am getting at is the purpose of fair use is to enable uses of copyright that take place WITHOUT permission of the copyright holder. Assuming you can get a license from the copyright holder, then fair use makes no sense. Why have fair use in those cases?

        Surely, you can find some cases where there is overlap (education exceptions?). But the important aspects of fair use are where there isn’t overlap, where fair use is the only option for use. Criticism and commentary are very strong areas that fair use protects. Criticism is one of the strongest exceptions in fair use (like a commercial use of a substantial non-transformative amount of a copyrighted work will often be regarded as fair use if it is strongly shown to be in some way critical of the original work or its author).

  • I’m not sure if I made that clear, so here is a TDLR:

    * The point of freedom of speech is largely to protect socially unacceptable speech.
    * The point of fair use is to protect uses of a work that the original copyright holder wouldn’t agree with or is offended by.
    * Copyright is at least in the USA/Commonwealth countries is entirely a system for economic incentive to create. It does not afford you any ability to stop others using YOUR OWN work AGAINST you, or do use your work in highly offensive ways. That is explicitly protected under fair use.

    Cheers.

  • M, how do you think the Goldieblox vs Beastie Boys case should have turned out within your presentation of fair use?

    • Probably fair use. Goldeblox had no legitimate way to license the song, and it’s highly transformative. Unfortunately because of the risk for losing a copyright case basically can bankrupt even a well funded startup they had no real choice but to settle.

      I don’t think Beastie Boys even felt like they had a legitimate case, because they donated all the money from the settlement into charities that promote Goldeblox’s message. There is something a bit disgusting about that though, in the “I didn’t really want your money, I just wanted to show you who is boss”.

      • David Newhoff

        On the second matter, the Beasties sued over a principle that is more important that “who’s the boss,” and then demonstrated that they care more about the principle than the money and also that they fundamentally support the social message of Goldieblox. No doubt there are more details behind the scenes that we’ll never know, but this was not a case of big guys bullying the little girl just for kicks. The Beasties have a standing rule of non-sponsorship, which is their right, and they were no more picking on Goldieblox than they were picking on Monster.

        As for the use of the song, it was first and foremost not a parody. Had GB produced the song as a stand-alone element (and there’s no reason why they would have), the song itself could be considered a parody, although one that many in the general public would not even get because the original is old and not super mainstream. Expectation of cultural awareness is actually a consideration regarding parody as a standard for fair use. Of course, the video was in no way a parody of the original video, which means the production as a whole piece was not technically a parody of the Beastie Boys at all. Then, of course, the original song and video were works of social satire, so that begs the question as to what GB would be parodying. Girls making fun of boys who once made fun of misogyny? And finally, plenty of evidence suggests that GB was using copyright infringement controversy as a marketing gimmick, which is not a fair use argument and tends to anger certain judges.

      • I disagree on that. This is the exact thing that fair use should protect. The video was a parody as well, as the message was female empowerment and the song itself is misogynist. It’s almost a perfect example of criticism.

      • David Newhoff

        1) Satire is not protected under fair use. 2) The video itself is not a satire of anything; it merely depicts montage of positive scenes in which girls build a thing. 3) The video in conjunction with the song (and only for those who recognize the original, 20-year old song) is a very loose satire of girl stereotypes. At best, that’s not fair use, and the more you know about the original song, which is satirical itself, the weaker the argument becomes. The mere fact that GB ran the video without the song and that it communicated the same thing to any viewer unfamiliar with the Beastie version proves that the whole piece was not conceived as a work of parody. Dude, forget the law, we’re talking filmmaking and what that piece conveys. And it ain’t parody.

      • Criticism is VERY STRONG fair use. It’s also highly transformative (the lyrics are entirely different). Transformativeness positively influences a fair use determination (the latest zeitgeist amongst the latest copyright lawyer convention is that transformativeness is more important then it used to be in determining fair use, so technically, SATIRE alone could be fair use too). But I don’t think it is satire, because it’s not taking the lyrics and making a irrelevant joke out of them. It’s changing the message.

        It’s taking the Beastie Boys and completely reversing the original message. To me, that’s criticism. That’s where parody protection comes from too. Satire would be changing the lyrics to talk about ducks and chickens or something. A lot of what Weird Al does is satire, like taking “Like A Virgin” and turning into “Like A Surgeon”. But Goldieblox’s version is in the same theme of the original work, and is critical of the original work, which promotes misogynist (plainly, I’m not talking about any abstract meaning behind the lyrics).

        Therefore, it feels like it is strongly fair use. The thing that can push it out of fair use is the fact that it is commercial (literarlly, it’s a commercial!), but the fair use protection regarding criticism is so strong it should counter the commercial nature.

        So I lean towards fair use here. It hasn’t been actually tested in court, however.

      • David Newhoff

        I can’t keep doing multiple rounds on this one, but the comparison to Weird Al is false if for no other reason than that he secured rights for his parodies and often collaborated with the originators. Moreover, you’re trapping yourself in vague definitions, which is not helpful either in a literary context or a legal one. Parody is one thing, satire another; and there’s a reason the former is covered and the latter is not. If you produce a hit song, I am free to parody the song by writing new lyrics that mock its original meaning while leaving the score intact. But even with that, your song will need to be in the public consciousness to support my fair use claim, if we look at (I believe) Liebovitz for precedent. If on the other hand I am creating a work of satire about any subject — a play, a film, etc. — for which I’ve decided your song is a perfect asset to use in this context, this is not covered under fair use. This is simply use and must be licensed just like any other use.

        The distinction I think matters in the GB case because the production as a whole does not constitute a parody and barely constitutes a social commentary. It’s just a commercial making an illegal use.

      • Well, um, yeah, I still think it was fair use. It’s all pointless regardless. It doesn’t matter who is right or wrong since it’s already settled, so there is literally no point anymore in speculating.

  • M, it sounds like we disagree quite drastically on what fair use is, and what a creators right actually is. I would be pissing up a rope to engage in debating at this point. Neither of us would ‘win’, and one of us would think they did. Enjoy!

  • David–
    Hah! I tip my hat, though I’d disagree.

    “But suppose my friends, a Jewish white couple who’ve adopted two children from Africa, post a casual, family snapshot for us to enjoy, and the Society for the Preservation of American Christianity and Whiteness uses their portrait to produce an advertisement calling biracial, Jewish families an “abomination?” Or maybe Sarah Palin’s political operatives decide my daughter’s picture suits one of their core messages; and instead of civilly suing her organization for copyright infringement, I have to find said political operative and beat the snot out of him. ”

    What you’re actually talking about here are publicity rights and defamation. In fact, solutions along those lines would be superior given your stated goals, as a copyright claim requires that the actual image be copied. If someone used their own picture of the couple, or of your daughter, you’d be up shit creek so far as copyright goes; copyright doesn’t give you rights in the underlying subject matter.

    It’s probably best to use the proper tool for the proper job, and not to try to hammer a nail in with the handle of a screwdriver.

    Further, your parade of horribles could quite easily fail on fair use grounds, mainly because there’s no commercial harm to the value of the work used in those cases, and no likelihood of a licensing alternative. And they’re unrealistic. The “La Donna Nella Doccia” scenario is pretty rare, not due to copyright, but because there’s just a lack of interest.

    “Remedies aside, though, the most significant loss that might be felt in years to come is the social norm of respect as something of a byproduct of universal copyright, even if that had nothing to do with the intent of the constitutional clause. On the broadest level, we simply do not erase the rights we have on the grounds that we rarely need to enforce them. It is narrow-minded (and usually profit-motivated) for someone to suggest that we ever should view any right this way. For instance, the right not to be discriminated against for race, religion, sexual orientation is codified into law and applies universally, regardless of how frequently or not this right needs to be enforced. Would we create a system in which, for instance, a gay person should officially register his desire not to be discriminated against, thereby implying that discrimination is okay absent said registration? Or is it more civilized to say that discrimination is socially intolerable and therefore illegal?”

    Well, respect for one’s home is a fairly age old norm of respect, ‘man’s home is his castle’ and all that. Certainly a lot older than trying to ban discrimination of the sorts you list. But we have long had systems of property registration because things tend to go to hell without it. I vaguely recall reading that the history of land registrations is known to go as far back as ancient Greece, and likely further back to Egypt and Mesapotamia.

    “Perhaps most importantly, it is essential that people realize that the American public gains nothing by giving up automatic and universally applied copyright”

    We gain innumerable works added to the public domain. Perhaps that’s nothing to you, but it’s a lot to me.

    “As such, many reforms proposed by academics and Internet activists are insidiously designed to get the public to slowly and voluntarily give up rights (e.g. privacy) that impede what they often call the ‘free flow of information.'”

    Or they’re just proposed because it seems like a good, common-sense, and in fact traditional idea. (Automatic copyrights for published works having only appeared in the US in 1978, not 1789. I think you transposed a couple of digits there.)

    “For instance, the difference between parody and satire. The former can be considered in fair use arguments, the latter cannot.”

    No, you can have a satire that’s a fair use. It’s just harder. Remember, any kind of use can be a fair use, but no particular use will necessarily be a fair use. Also the parody/satire distinction is pretty arbitrary. You get this in equity sometimes, with rationales being constructed to cover for gut decisions.

    “In any given case, there is the viability of the copyright holder’s claim of infringement and the user’s argument for fair use, and litigators on both sides would weigh their arguments before proceeding.”

    Not quite. The copyright holder would have to make a successful prima facie claim of copyright infringement first. Having done that, then the defense can raise fair use (until then, there’s no need). They aren’t weighed against each other, as infringement must be completely, absolutely proven just to have fair use. That would be a weird balancing test. Even within the fair use argument, the four factors aren’t the test per se, they’re just a tool to be used to help make the actual decision, and aren’t intended to be approached mathematically, e.g. with the winner being whoever wins a majority of the factors.

    “Of course, the video was in no way a parody of the original video, which means the production as a whole piece was not technically a parody of the Beastie Boys at all.”

    No. The only part that has to be a parody is the part that is used. In fact, to be transformative, you typically have to add new material to the portion used.

    “Then, of course, the original song and video were works of social satire, so that begs the question as to what GB would be parodying.”

    The law doesn’t require that it make sense, or exhibit taste, or be any good. Parodies usually don’t, in fact.

    “proves that the whole piece was not conceived as a work of parody”

    That’s a factual issue which might have arisen later, though I’m not sure that intent is relevant.

    “but the comparison to Weird Al is false if for no other reason than that he secured rights for his parodies and often collaborated with the originators”

    That’s because Al is a nice guy. However he’s always been very clear that he’s protected by fair use and doesn’t actually need permission. Here’s what Al himself has said about the issue, a few years ago, when he put a parody song and video online without permission:

    “My parodies have always fallen under what the courts call “fair use,” and this one was no different, legally allowing me to record and release it without permission. But it has always been my personal policy to get the consent of the original artist before including my parodies on any album, so of course I will respect Gaga’s wishes. However, given the circumstances, I have no problem with allowing people to hear it online, because I also have a personal policy not to completely waste my stinking time.”

    M–
    “Fair use as vague as fuck, and it’s one of the huge problems with copyright right now”

    Absolutely not. It’s meant to be vague so that it can cover unanticipated new circumstances. If you have a specific circumstance which you think ought to consistently be allowed, you want a statutory exception for it. Much like how the CleanFlicks people were probably engaged in fair use, but got an amendment to 17 USC 110 tailored pretty well to their use.

    Adams-Myth–
    “they may start to hear the sound of true artists walking away, not publishing their works anymore, maybe a ‘showing’ to small circles of trusted friends”

    Okey doke.

    Personally, I think it would be nice if you would publish them, and certainly wouldn’t destroy them, but it’s up to you. No one’s going to make you do anything you don’t want to do.

    “In my updating of my will, all of those works will be destroyed upon my demise.”

    Yes, Kafka, among others, insisted on the same thing. But it’s best for the world that his wishes were ignored.

    • David Newhoff

      Anonymous–

      On fair use, I did not mean to suggest that the four factors are some sort of quantifiable measurement, and if one hits all four they win. Regardless, my opinion about GoldieBlox is based on my read of Leibovitz, which contains language asserting the notion that there has to be a reasonable expectation that the public with get the joke. The decision reasonably asserts that a piece can’t be parody if what’s being parodied, for instance, is out of public consciousness. As such, without present knowledge of the original Beastie Boys song, the video with revised song is simply a piece of positive girl power marketing without a hint of parody in it. And since the song is 20 years old and not the kind of thing one even hears much on oldies radio today, an argument can be made that the parody itself is very weak. As a general rule, parody is contemporary and fleeting.

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