Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Artists Making Merch Should Avoid Copyright Confusion

Photo by vlad_star

Ars Technica posted an article last month about copyright and tee shirt design that, in my view, jumps past the real story and may confuse a few independent artists out there that they’re operating in some new realm of IP law.

The internet industry sells a message of opportunity, and it is absolutely true that the combination of e-commerce platforms and on-demand production does create new avenues for creators to earn revenue from their work.  Willie Clark’s article describes a network of artists who are currently making at least a portion—if not the lion’s share—of their living from the sale of tee shirts that feature their original designs.  All good.

But in a world without copyright protection, there is not much to stop either a sole actor or a predatory website from appropriating the artists’ designs and selling tee shirts or other merchandise by leveraging exactly the same tools available to the artists.  Clark cites a few artists who are quite sensitive to this issue; and in my view, this is one of the major challenges of internet economics:  it assumes everyone will behave ethically, and when they don’t, the tools easily enable cannibalization of the very same opportunities they create.

Clark’s real focus is on the legal status of sites and/or artists in cases where high-profile, corporate-owned IP may be involved. He asks, “If big media has legal muscle, why can you buy Link racing Harley Quinn on a shirt?” Okay, that’s a sub-head, and Clark can be forgiven for not quite answering the question—especially because there isn’t a general answer other than to say that if you go printing merch with copyrighted material belonging to major rights holders, be careful.  Clark writes the following:

“While there hasn’t been a high-profile case involving a big pop culture IP and an online T-shirt company yet, there have been similar situations. Mitch Stoltz, senior staff attorney with the Electronic Frontier Foundation, pointed to one court case where T-shirts overall had been tested. And in Kienitz v. Sconnie Nation, LLC, the court ruled in favor of a shirt that used another photographer’s photo as the basis for the design.”

The indie artist should not be confused by this statement into thinking that the internet-spawned tee shirt trade has entered some new gray area of copyright law. For one thing, in the Keinitz case cited, the tee shirts are barely relevant. The appellate court refers to the substantial amount of alteration made to an original photograph and to the lack of potential market harm to the original in affirming fair use. The image at issue could have been fixed onto any medium, and the legal considerations would have been almost identical.  But, if the tees had served as a substitute for the rights holder’s licensed—or potentially licensed—merchandise, that would be a very different story, which brings me to the next quote.

“Stoltz also mentioned one other reason companies may be OK with leaving such sites operational: free advertising. ‘This is free marketing for them, and they know it,’ Stoltz said. ’It’s not really good marketing strategy to go suing your fans and the websites that they like to use.’”

This is a familiar refrain from the EFF, and from the larger community of copyright skeptics and outright antagonists. This idea that appropriation serves as free advertising is, for instance, a common rationalization for large-scale piracy. But it’s not an argument that actually carries much weight with most rights holders, least of all the majors. So, if you’re an independent artist, considering making a tee with a Harley Quinn-based design on it, I would not take this “free marketing” message to heart because it almost certainly is not how rights holder DC Comics will consider the use.

A fair use of an illustrated character really has to comment upon the work in a way that goes beyond mere re-interpretation.  Otherwise the use on a tee shirt will very likely be seen in court as counterfeit merchandise—an unlicensed “display” of a protected work. Moreover, characters are very often covered by trademark and copyright, which gets into a whole other set of motivations for the owner to consider enforcement. For instance, trademarks must be enforced or they can be lost, which is not true of copyright.

Likewise, the discussion of the DMCA in the Ars Technica article can be confusing because the DMCA has no bearing whatsoever in the trademark universe and, as Stoltz is correctly cited, has no authority in the world of infringements beyond cyberspace. Tee shirts and other merch are physical media, so the artist, the site, and/or the manufacturer could be liable in a context that has nothing to do with the digital market.

It is certainly true that fair use exists in order to allow artists to comment upon copyrighted works without the rights holder’s permission, and commentary is a critical part of creativity, social discourse, advocacy, etc.  But merch can be tricky, and unless artists want to spend more time thinking about fair use doctrine than making art, it’s probably better to focus on creating original expressions.  And apropos of the top of this post, it would be far more beneficial to the creative community—and society—to figure out how independents can better protect their rights in the digital market than it would be to keep looking for ways to use works belonging to other rights holders.

Angels and Monkeys at Appeals Court

Photo sources by artush & prudkov

 

 

 

 

 

Readers can be forgiven for focusing on court news other than copyright stories these days, but lest you think all the fun is emanating from the White House, here are two items of note this week…

VidAngel Appeals Injunction

The Ninth Circuit, in the spotlight for ruling against Trump’s executive order known as the travel ban, heard oral arguments on June 8 in the Disney v. VidAngel case. As described in this post, VidAngel’s business model is effectively a Video On Demand (VOD) service that provides filtering for consumers who want to see mainstream fare without “objectionable” scenes that might include sex, nudity, profanity, blasphemy, and (I don’t know) rainbows?

The studios sued on the grounds that VidAngel’s model violates the rights of reproduction and public performance under Section 106 of the Copyright Act as well as prohibitions against “ripping” DVDs under Section 1201 of the DMCA. VidAngel has tried to argue that its business model is legal because its customers have the right to “filter” under the provisions of the Family Home Movie Act (2005). In December of 2016, the District Court for the Central District of California granted an injunction, pausing VidAngel’s activity, holding that the studios would be expected to prevail on the merits across all triable issues. VidAngel then appealed that injunction to the Ninth Circuit.

As Ashley Cullins reports for The Hollywood Reporter, a hot mic captured Judge Carlos T. Bea whisper to his colleague Andrew D. Hurwitz, “I think this one’s a lot easier,” meaning, of course, in contrast to the travel ban debacle, but quite possibly indicating that the District Court’s injunction will be allowed to stand. Attorney Donald Verrilli, counsel for the studios, stated, “What they’re essentially saying is ‘if we filter, we can stream without a license.’” And that about sums it up. Meanwhile, he also was clear to state that his clients are not opposed to filtering as permitted by the FMA, adding that technology provider ClearPlay, which enables home filtering, filed an amicus brief on behalf of the studios.

Assuming the injunction is sustained and the case is remanded for trial, it will be interesting to see if VidAngel’s executives decide that their evangelical mission is more important than a return on investment. Because it seems quite clear that there is nothing legal about their business model.

Who Knew Copyright for Monkeys Was Still in Play?

In a more extreme example of ideologically-charged litigation, also on appeal at the Ninth Circuit, it turns out that the organization PETA (People for the Ethical Treatment of Animals) is still ape over the idea that a primate can own a copyright. For anyone who missed it, the animal rights organization, in September of 2015, sued British photographer David Slater and US publisher Blurb on the grounds that both had infringed the copyrights of a Sulawesi black crested macaque who apparently snapped her own photograph with Slater’s camera. Under the circumstances, Slater’s copyright ownership of the image was called into question by the Wikimedia Foundation and was debated online—in good faith and bad—by various constituencies.

In my view, Slater’s claim has merit if, as described on his blog, he purposely set up the camera and used what he’d learned about the monkeys’ curiosity to create the conditions for the selfie to be made. He writes …

“I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play.  I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens.  I was then to witness one of the funniest things ever as they grinned, grimaced and bared teeth at themselves in the reflection of the large glassy lens.”

Based on American case law to date, this non-attorney thinks that should be sufficient to hold that Slater owns the copyright, whereas if the camera were in fact picked up serendipitously by the macaque and snapped—conditions that would almost never produce the image in question, by the way—Slater’s claim would probably be very weak under U.S. law. Regardless, only PETA would think to argue that the monkey herself can own a copyright; and in their complaint, they relied on the testimony of primatologist Dr. Antje Englehardt as a “next friend” of the monkey plaintiff.

As of last week, however, counsel for the defendants have stated that PETA should be viewed by the court as lacking the standing to represent the macaque’s interests in light of the fact that Dr. Englehardt was recently arrested for harassing PETA’s lead counsel. “Regardless of the merits or outcome of the criminal case against Dr. Engelhardt,” write Slater’s attorneys, “its very existence is a relevant consideration on whether PETA can adequately represent the interests of Naruto,* notwithstanding the documented animosity that has developed between PETA and Dr. Engelhardt.” Okay but…

A “next friend” in common law is a person who represents another person because the latter is either a minor or has been deemed incompetent—not because he/she has been deemed a monkey! While pundits like Mike Masnick at Techdirt focus attention on the non-existence of any copyright in the “monkey selfie” (which is debatable as described), what is unquestionably non-existent in this case is any animal’s standing to enforce a copyright in U.S. court.

This was made quite clear when Judge Orrick of the California District Court for the Northern District stated that he could find no evidence in the statute that animals are entitled to own a copyright in the United States. That ought to about settle the matter. Because, frankly, whether one takes a utilitarian view of IP, a natural rights view, or some combination of the two, Orrick’s holding should seem forbiddingly tautological for most plaintiffs, even those with the anthropomorphic zeal of PETA.

*PETA has named the macaque “Naruto,” though Slater states that the monkey is a female others have named “Ella.”

Google Down-Ranks Real News

Photo by enriscapes

As alluded to in yesterday’s post, the 2016 shock to what we might politely call political orthodoxy provided a boost to mainstream news subscriptions. “The [New York Times] added 276,000 net digital-only subscriptions in the final three months of 2016, the best showing since it implemented its paywall in 2011. In the weeks immediately following Mr. Trump’s election in November, subscriptions increased tenfold compared with the previous year,” wrote Shannon Bond for Financial Times in February.  Similar spikes occurred at The Washington Post and other traditional news sources. So, if nothing else, the bizarre theater of obfuscation and Twitter rants coming out of the new administration seemed at least to rekindle millions of Americans’ desire for credible reportage.

But get this…

Gerry Smith for Bloomberg reports that when The Wall Street Journal blocked Google users from reading its articles for free, its subscription business “soared” only to see this gain countered by a 44% drop in traffic from Google search.  It turns out, according to Smith, that Google’s algorithm prioritizes free content over paid content.  Assuming this is true, there’s a whole lot wrong with it, beginning with the fact that this belies Google’s boastful raison d’etre to “organize the world’s information” and deliver search results based on quality and relevance.

If the algorithm looks for free content first, this suggests that fake news and other junk content will be consistently prioritized over the WSJ, The New York Times, The Washington Post, The Daily Beast, and so on. Not only does Google’s policy in this case stifle these organizations’ flexibility to choose their own strategies for financial survival, but for the general public, it exacerbates the already toxic brew of bad information that is, at this point, literally threatening democracy itself.  And for what?

Money of course.  Google makes money by serving ads to content that users can more readily access without going through paywalls.  Consequently, ConspiracyIdiots.com makes it into the top results instead of, y’know, news—at least according to what Bloomberg is reporting. “The Journal’s experience could have implications across the news industry, where publishers are relying more on convincing readers to pay for their articles because tech giants like Google and Facebook are vacuuming up the lion’s share of online advertising,” writes Smith.

I’ve gone so far as to assert that we’ve actually lost the “information revolution.” The promise of a more enlightened society through digital technology has hardly been fulfilled, but we do have some very funny memes to stick on the fridge of history.  Given the extent to which the current narrative has been hijacked by a strange confluence of bored trolls and professional data manipulators, a sane person can be forgiven for deciding that it’s about time to unplug.  A recent report by the Data & Society Research Institute on the influence of—I guess we can call it “troll culture”—on even the mainstream media says the following:

“Mass media has greatly profited off the appeal of conspiracy theories despite their potential for harm. Network news channels feature ‘documentaries’ investigating theories without fully refuting them. In 2011, when Donald Trump began promoting the “Birther” conspiracy theory, claiming President Obama was born outside of the United States, mainstream news outlets like CNN and Fox News covered these claims extensively. Out of this environment, an entire industry of conspiracy and fringe theory has emerged.”

The report delves into the intricate network of internet subcultures described as “an amalgam of conspiracy theorists, techno-libertarians, white nationalists, Men’s Rights advocates, trolls, anti-feminists, anti-immigration activists, and bored young people,” who are directly influencing the narrative that many citizens around the world think of as the truth.  And this is bad enough.  “Google says its ‘first click free’ policy is good for both consumers and publishers. People want to get the news quickly and don’t want to immediately encounter a paywall,” writes Smith.

Sound familiar?  What’s good for Google is invariably “good for consumers.” And consumers invariably buy the pitch for a while.  Free?  Yeah, free sounds good.  Until it turns out that free actually a cost. Sometimes a very dire cost—like millions of voters who would sooner believe in alien abduction than climate science. And the point of the above quote about television news creating entertainment out of nonsense is that sensationalism will be the only thing left, if business models no longer support investigation, travel, research, fact checking, and other expensive human labor required to deliver quality journalism.  Add to all this that Google search will apparently down-rank legitimate news because it isn’t free?  Damn.