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.

I Never Saw David Bowie Play Live

And I’ve never owned a David Bowie tee-shirt.  Or any Bowie merchandise other than his albums. But like tens of millions around the world, who are today mourning the loss of one of music’s best loved, most diverse, and most influential artists, I sure as hell have long been a fan.

Oddly enough, I had in mind to buy Bowie’s new and final album Blackstar over the weekend. I didn’t get a chance to do it and was as stunned as everyone else to wake this morning to headlines reporting the artist’s passing.  No doubt plenty will be written by better critics than I about the new album and the entire Bowie oeuvre in the days to come.  But by way of continuing the theme from the post I wrote about recorded music being the most valuable, can anyone really imagine the world of recorded music without David Bowie?

Neither can I. And that’s why I will continue to argue that today’s digital-media cheerleaders who claim to be copyright critics are fundamentally cultural cynics.  They tell us that the next David Bowie no longer needs a copyright in his own work because technology has enabled the artist to bypass traditional investment models. But the fact is that neither the people who say this—nor most of us fans for that matter—have a clue how one produces the sounds of Ziggy Stardust, Aladdin Sane, Diamond Dogs, and so on.

These same cynics say “the world doesn’t owe the artist a career,” which is both true and entirely beside the point.  I mean does anyone, who is today sharing his or her personal Bowie moments on social media begrudge the man so much as a dime’s worth of his success?  Whatever his net worth was as of this morning, it’s meager compensation relative to the tens of billions of emotional impressions he gave to the world.  Laurent Rejtö, co-founder of the Woodstock Film Festival, wrote on his Facebook wall this morning, “He made me a better person through his art and by proving, as he did throughout his life, that you don’t have to be a cog in the machine.”  How much is that worth exactly?

The truly galling irony, of course, is that this particular talking point—that we should presume to reevaluate in the digital market what the artist “deserves”—has been injected into the public consciousness specifically by tech billionaires, who actually do believe we are all cogs in their machine.  This is probably the most offensive theme in what many so generously call the “copyright debate”. The truth is so much of the chatter isn’t a debate at all, really; it’s just a collective heavy sigh, patiently tolerating a lot of silly ideas.

After all, we’d have Internet search with or without Google’s more unsavory practices; and we may all get bored one day and abandon Facebook and Twitter; and we’ll have music streaming one way or another; but can you actually imagine having lived the past 30-40 years of your life without your personal soundtrack including songs by David Bowie?  Neither can I.

Rest in peace, Ziggy.

We Need Every Yop

As a follow-up to my post from last week discussing the Copyright Office review of Section 512 of the DMCA, I’m going to shift from my usual format of the editorial essay to outright endorsement of grassroots efforts aimed at letting Congress know that artists and creators want to see change to obsolete aspects of US law that unfairly disadvantage them in the market.  Recently, musician Blake Morgan published a heartfelt article in The Huffington Post called Why Music Makers Are the Real American Innovators.  Morgan writes:

We know all about American innovation.

Rock & Roll is an American innovation. Hip-Hop is an American innovation. Jazz is an American innovation. Blues, Country, Gospel, Bluegrass, each of these — and so many others — are distinct American innovations.

Music is one of the things America still makes that the world still wants. The people who make that music should be paid fairly for their work.

That’s our argument.

In his article, Morgan calls attention to two congressional bills that seek to update the law to recognize and fairly compensate American music makers.  The Songwriter Equity Act proposes changes to two sections of the Copyright Act, which currently prevent songwriters and composers from receiving fair market value royalties for their work.  The second bill is the Fair Play Fair Pay Act, which Morgan has spearheaded with his viral #IRespectMusic campaign.

The other campaign I’m calling attention to is the Take Down Stay Down petition, created by the tireless work of FarePlay’s Will Buckley. This effort is directly addressing the aforementioned safe harbor loopholes in the DMCA, which can affect all creators in every medium. When push comes to shove, the Copyright Office can do its study and make its recommendations; and Members of Congress may even recognize the plain reality that outdated safe harbor provisions create a financial incentive for platforms like YouTube; but if creators themselves do not actually speak up in numbers and tell Congress they care, Google will probably win that fight.  They’re simply too damn big. And it is folly to believe this particular debate will be won or lost on merit alone. It will be won by the people who show up. And last I counted there are millions of creators in this country and only one Google.

After four years of wading into these issues, many of the artists I’ve met can be described as either unsure of where they stand on copyright related matters or resigned to the way things are.  I still remember one of the first independent musicians I spoke to about this stuff. It’s not that she didn’t care about the unlicensed use of her work, she said, it’s that she had simply given up trying to deal with it. That’s music (if you will) to Silicon Valley ears.  When it comes to outright criminal, pirate enterprises operating overseas, it’s one thing; but the idea that creators just have to roll over and take it while American companies are free to turn mass infringement into billions of dollars is just plain wrong.  And in the service of what? Jobs? Innovation? Hardly. To Blake Morgan’s point, the creators being hurt are the real innovators; and the industries we’re talking about employ more people by orders of magnitude than all of the major Internet giants combined.

I’m adding three new links to the sidebar of IOM by way of endorsing these efforts.  As in Dr. Suess’s Horton Hears a Who, we need every Yop if we want creators to at least be heard through the lobbying juggernaut that the Internet industry has become.  Signing these petitions isn’t going to win the day; but if we even want a balanced debate, creators need to first let Congress know “We are here.”

No Copyrights for Critters Says Judge

Readers may be astonished, relieved, or understandably apathetic, to learn that a federal judge in California has ruled that a Sulawesi macaque may not sue for copyright infringement.  In fact, Judge William Orrick broadened his ruling to affirm that no animal may own a copyright. The judge swears he looked and looked but could find no evidence to indicate that the rights expressed in the Copyright Act extend to the non-human fauna of the world.  This news comes as a relief to me personally as I’ve been a bit on edge ever since one of our cats made transformative use of an unframed photograph of mine. I am absolutely sure this ungrateful feline, in addition to its habit of biting and scratching, is instinctively litigious.

This recent ruling was a disappointment for the People for the Ethical Treatment of Animals (PETA), who had filed suit against British wildlife photographer David Slater and his San Francisco-based self-publisher Blurb over a photograph known as the “monkey selfie.”  The crested macaque, whom PETA identifies as Naruto, and who in 2011 snapped a photo of himself with Slater’s camera, would not comment on the outcome of the case or, for that matter, what he thinks of being named Naruto by a bunch of strangers from another species.  Sources close to the macaque, including two tarsiers, a water buffalo, and a Komodo dragon also declined to comment, apparently too overcome with emotion to share their thoughts so soon after the defeat.

For those who missed the original story (and there really is no excuse), the saga of the “monkey selfie” initially exploded onto the Web in the Summer of 2014, when Slater sent a takedown request to Wikipedia, which was making use of the photograph without permission and allegedly infringing Slater’s claim of copyright in the image. The Wikimedia Foundation rebutted that because the monkey had snapped its own photo, the image belongs to nobody and cannot, therefore, be protected by copyright.  The questions raised by this primate picture sparked a considerable amount of professional and amateur copyright theory in the media, and these conflicting views, combined with the cost of litigation, may have been a factor in Slater’s not pursuing legal action to enforce his claim against Wikimedia Foundation.

PETA, on the other hand, decided to assert that the fruits of one’s labor principle is as much an animal right as a human right.  This despite the fact that, given the same evolutionary opportunity as humans, the non-homo-sapiens among us have yet to produce even a modest body of copyrightable works.  In fact, in 2003, researchers at the University of Plymouth, in an attempt to test what’s known as the “infinite monkey theory”, left a computer keyboard in the care of six crested macaques—it is unknown whether any of these six were related to Naruto—to see what literary work they might produce. The monkeys managed to type five pages devoid of a single sentence in any known language, made an abundant use of the letter ’S’, and then liberally relieved themselves on the keyboard.

Still not undaunted by Naruto’s copyright rejection, Jeff Kerr, general counsel for PETA (a human), commented thus:

“Despite this setback, legal history was made today because we argued to a federal court why Naruto should be the owner of the copyright rather than been seen as a piece of property himself,’ Kerr said. ‘This case is also exposing the hypocrisy of those who exploit animals for their own gain.”

It is hard to imagine that PETA is going to make much progress conflating a respect for animals—which is a worthy endeavor—with copyright, or that this is a particularly wise use of resources given the organization’s overall agenda.  Aside from those issues, the animal world can be brutal enough, what with the killing and eating of one another, and it seems to this observer that it would merely introduce a new form of cruelty to subject these poor creatures to the copyright debates.  On the other hand, given a monkey’s penchant for throwing feces, this could provide a needed political boost to the floundering European Pirate Party.

In a related story, cognoscenti in the art world are murmuring that controversial artist Richard Prince may be about to exhibit a print for sale of the “monkey selfie”, which he will argue he has transformed simply by looking at it for a little while.*  When told of these latest developments, the macaque they call Naruto scratched himself and looked toward the horizon as though remembering a simpler time.

*This is satire. I have no knowledge that Mr. Prince intends to make use of the “monkey selfie”.