Category: Art

Is a Tech Company Really Claiming Ownership of Marvel Characters?

You may have read recently that some of the major studios, most prominently Disney, are alleged to have infringed the patent rights in a certain motion-capture system used to make blockbuster films like the multi-billion-dollar Marvel movies.  Further, an article like this one in Hollywood Reporter by Eriq Gardner might give a reader the impression that a) the patent infringement allegations are indisputable; and b) that the plaintiff in this case Rearden LLC is claiming to “own” some of the famous CG characters featured in these movies. So what gives?

A lot. But not necessarily what the headlines imply. As for the patent infringement allegations, these are impossible to comment upon at the moment because 1) I know almost nothing about patent law; and 2) the entire backstory as to how Disney and other studios may be implicated is too complex to unravel in this forum. Suffice to say, we’ve got some former technology partners who are no longer friends, some dubious-sounding shenanigans involving the sale (or not) of shared (or not) intellectual property, and an inventor named Steve Perlman (Rearden’s CEO) who seems to have at least a few good reasons to be pissed off at somebody.

Time and the courts will sort all that out, but for the sake of addressing the copyright allegations in this story, we need to assume hypothetically that the studios are implicated in the patent infringement from which the copyright claims stem.  And let’s cut to the chase and clarify that Rearden cannot—and is not—claiming any ownership of the underlying pictorial or graphic works we know as Hulk, Deadpool, Iron Man, etc.  What Rearden does allege is that by making unlicensed use of its MOVA Contour technology, the studios simultaneously infringe Rearden’s copyright in the outputs of this technology.  Hence, cutting through the fog and high drama, the entire copyright claim appears to turn on whether Rearden’s outputs are in fact copyrightable at all.

MOVA Contour’s Outputs

As an example, Mark Ruffalo goes into a motion-capture studio where he grins, shouts, pouts, growls, and raises curiously adorable eyebrows in the mode of his inner Hulk.  He may be directed by the film’s director or some other member of the creative team, or he may self-direct to produce all the faces needed for every scene in which Hulk will appear. These performances, fixed in the computer drives during the process, are indisputably the property of Marvel Studios, which is owned by Disney.

The captured data, consisting primarily of multiple two-dimensional images is then input into the MOVA Contour system, where the software renders a pair of three-dimensional outputs:  what Rearden calls a “Captured Surface” and a “Tracking Mesh.”  These two assets then serve as a highly-detailed, digital armature onto which Marvel-employed animators then composite the CG Hulk, who will then grin, shout, pout, growl, and raise curiously adorable eyebrows in the movie, looking just enough like Mark Ruffalo to make the character transformation seem organic.

Rearden’s Claim

Rearden asserts that, although the Captured Surface and Tracking Mesh are never displayed in the final movies, these two outputs are, nevertheless copyrighted works and, therefore, every CG-composited element built upon these outputs is a “derivative work.” So, absent a licensing agreement to use the software and transfer ownership of the outputs to the licensee, the studios are alleged to have infringed Section 106(2) of the copyright act, which protects the derivative works right.  Indeed, if this claim has merit, it would be quite staggering to consider the number of infringements implicated.  One can almost hear the Hollywood-bashing copyright-haters chomping at the bit; but if that’s the case, they might want to belay the schadenfreude.

I imagine the studios’ motion to dismiss will be denied because the allegations seem to warrant further proceeding. But even if the copyright claim goes far enough to render an opinion by the court, I believe there is ample evidence in both scholarship and case law to conclude that Rearden’s outputs are not copyrightable and, therefore, cannot implicate the derivative works right.

Is MOVA Like Other Software Used to Make Creative Works?

At first blush, one might assume that the MOVA software is akin to using Word or Photoshop, which are used by authors all the time without any fear that Microsoft or Adobe can claim a copyright in the works made with these products—even if the author pirates the software!  But, Rearden counters this premise by saying that because their software produces a specific, repeatable output fixed in a medium, and because this output is produced almost entirely by the “labor” of the software, the analogy to Word isn’t quite right.

The difference they claim relies heavily on the case TorahSoft v. Drosnin (2001) in which defendant Michael Drosnin published a book based on outputs (effectively search results) that were exclusively the products of plaintiff ToraSoft’s algorithm. Rearden appears to be clinging to language in this opinion that supports the possibility that the output from computer software could be copyrightable; but the lion’s share of the opinion actually provides reasons why TorahSoft’s output was not copyrightable. And because much of the court’s reasoning in that case seems applicable to Rearden’s claim, it may be a risky citation.

In response to the assertion that MOVA is comparable to Word or Photoshop, Rearden states,“…in neither case does their work provide input to software that synthesizes an original expression that is distinct from the author’s or artist’s input.”  I wonder if that is, or should be, the standard. After all, between my writing these words and you’re reading them, there are several software authors whose work renders my expression into intermediary “works” that, if they were indeed copyrightable, would mean that everything created with digital tools is a derivative work of underlying works belonging to the tech companies of the world.  I don’t think the courts would view this outcome as compatible with the purpose of copyright.

Are MOVA’s Outputs Expressions or Copies?

Curiously enough, the “sub-millimeter precision” with which MOVA Capture does its job may be the evidence which most disfavors a finding that its outputs are copyrightable.  The standards for protection are “originality” and a “modicum of creativity.”  Originality literally means that the work is not a copy, and so far, “creativity” has been limited to works produced by humans. We may yet address copyright protection for works that are substantially produced by AIs, etc., but in this case, it seems Rearden is arguing that the human expression embodied in the software is tantamount to authorship of the software’s output, which it claims is separately “creative.”

While this may be possible in some circumstance, as TorahSoft seems to imply, I suspect Rearden’s argument will find slippery ground because the courts will view the purpose of MOVA software as one of making copies of performances that are the property of the defendants.  In this context, I believe Rearden’s software, especially as a component of the entire system, may be compared to patented devices that capture images which would strain to meet the standards for protection.

Copyright scholar Justin Hughes, whose paper on photography I have cited in other posts, asserts that a vast quantity of images—security camera footage, satellite photos, Google Street captures, even photos of public-domain paintings sold as postcards—should not stand up to claims of copyright because they lack the modicum of human creativity required for protection.  Assuming Hughes is correct, Rearden’s claim of copyright in its outputs would seem to fail under the same analysis.

More specifically, the case that comes to mind in answer to Rearden’s claim is Meshwerks v Toyota, decided in 2008 by the Tenth Circuit Court of Appeals. In that situation, Meshwerks asserted copyright protection in the outputs from its capture technology used to produce 2D, digital models of Toyota cars for advertising purposes. Supplier Meshwerks actually performed a considerable amount of creative labor—in collaboration with software—to produce the outputs. This stands in contrast to Rearden, whose claim relies solely on the products of the software.  Nevertheless, and with stated respect for the amount of work involved, the court held that Meshwerks outputs were not copyrightable because their purpose was to create the best copies possible of designs belonging to Toyota.  From the opinion, which partly quotes Nimmer on Copyright:

It is certainly true that what Meshwerks accomplished was a peculiar kind of copying.   It did not seek to recreate Toyota vehicles outright-steel, rubber, and all;  instead, it sought to depict Toyota’s three-dimensional physical objects in a two-dimensional digital medium.   But we hold, as many before us have already suggested, that, standing alone, “[t]he fact that a work in one medium has been copied from a work in another medium does not render it any the less a ‘copy.’ ”

So, if we compare this to Rearden’s claim and the Hulk example, Disney certainly did not design Mark Ruffalo, but they do employ him to perform the only creative work in this entire process—that of making faces as Hulk.  And I would argue that, akin to Meshwerks, the function of MOVA software is to copy that performance (in this case, from 2D to 3D). In fact, it is the triumph of the system’s capacity to deliver such precise copies which disfavors a conclusion that its outputs are “original” expressions of “creativity.” The process is no more creative than a CAT scan—far less creative, it seems, than the work performed by Meshwerks, which was held not to meet the standard of protection under copyright.

It’ll be interesting to see if any of the usual anti-copyright suspects come out to play on this one.  Presumably, they should disfavor Rearden’s claim of copyright for many of the reasons cited here, but siding with Hollywood studios may be more than they can bear.

Image by kentoh.

KinderGuides & Copyright:  A Tale of Wishful Thinking

An important and instructive decision was handed down this week by New York District Court in the KinderGuides case. KinderGuides is a series of children’s books that include adaptations of classic works with some commentary about the authors and the stories.  Publisher Moppet Books has released illustrated, young-reader versions of works from the public domain like The Odyssey and Jane Eyre. But when they decided to launch a series of modern American classics still under copyright, this prompted litigation by rights holders who had not licensed their works to Moppet for adaptation.

At issue were Hemingway’s The Old Man and the Sea, Truman Capote’s Breakfast at Tiffany’s, Jack Kerouac’s On the Road, and Arthur C. Clarke’s 2001:  A Space Odyssey.  The suit against Moppet was filed by a group of plaintiffs including Penguin Random House, Simon & Schuster, and the estates or trusts of the four authors.  Now, before we ask the very reasonable question as to whether the Capote and Kerouac books in particular belong on a young child’s bookshelf in any form, hold that thought while we address the copyright story because it’s a lulu.

Moppet is the business venture of Frederick Colting and Melissa Medina. In 2009, Colting was successfully sued by the estate of J.D. Salinger for publishing an unauthorized sequel to The Catcher in the Rye. The New York Times reported in January, “Given the suit field by the Salinger estate, some in publishing were surprised that Mr. Colting would publish children’s versions of copyrighted works.”

What I find particularly striking about Judge Rakoff’s opinion in this case is that we can infer from his wry rejections of the defendants’ logic a narrative in which Moppet hoped to translate personal and generalized criticisms of copyright law into a series of affirmative defenses for having broken the law.  Rakoff was unequivocal in his dismissal of all of Moppet’s arguments, using terms like “absurd theory,” “exercise in sophistry,” “no support in applicable law,” and my personal favorite, “Implicit in defendants’ argument, then, is a contention that the Copyright Act itself is unconstitutional.” Suffice to say, Moppet did not have a good day in court. But let’s look at some of the important issues.

Substantial Similarity

In order to infringe the right of reproduction in regard to this kind of adaptation, the plaintiff must show that the new work is “substantially similar” to the original. So, if a short and sanitized story about a girl named Holly Golightly contains essential elements from Truman Capote’s novel, then it will be considered “substantially similar” to the original under the law.  Bizarrely, though, Moppet tried to argue that the characters and narratives in all four of the novels were “stock” elements not protected by copyright.  For instance, it appears they tried to claim that Holly is just any “small town girl with a tough past.”

This is an inscrutable claim coming from a publisher that aims to produce and sell children’s versions of classic literature.  Because if there were truly no “substantial similarity” to the original, as they tried to argue—if the Holly they presented in their version bore no resemblance to Capote’s character living out Capote’s narrative—then, Moppet would  probably be guilty of fraud—and possibly infringement of Capote’s right of publicity—because they would be selling their customers a book that has nothing whatsoever to do with Breakfast at Tiffany’s.  You can’t have it both ways; either it’s an adaptation or it’s a different story.

From Rakoff’s remarks, it seems the defendants tried to argue that the creative expressions in the novels are “fictional facts,” which were then “summarized” in the KinderGuide books.  This is the part Rakoff called an “exercise in sophistry.”  Legitimate summaries, as one might find in a book review, literary criticism, or a Cliff’s Notes type study guide, are patently distinct from adapted retellings of the stories themselves.  What KinderGuides produced were illustrated, children’s adaptations of the novels, which makes them “derivative works” under copyright law, rather than “guides” or other forms of comment about the novels.

Derivative Works

A rights holder retains the exclusive right to prepare derivative works (§106 (2)), which includes various types of works that are “based on the original works of authorship.”  So, products like film adaptations of novels, fictionalizations of non-fiction works, sound recordings, spin-offs, sequels, and translations are all examples of works that only the author has the right to prepare or license others to prepare. And this would naturally include children’s versions of novels that were originally written for adults.

The term “based upon” can be confusing because fair uses and new expressions are “based upon” works all the time.  Here, Judge Rakoff makes the distinction by reference to a case in which a Harry Potter Encyclopedia was held not to be a derivative work:

“A work is not derivative, however, simply because it is ‘based upon’ the preexisting works. Only works that are ‘recast, transformed, or adapted’ into another medium, mode, or language while still representing the ‘original work of authorship’ are derivative.

Here, though defendants’ Guides add additional material at the end, specifically a few brief pages of “Analysis,” “Quiz Questions,” and information about the author, they are primarily dedicated to retelling plaintiffs’ stories. Two pages of analysis do not convert the Guides overall – which are largely composed of “Story Summaries” – into something that no longer “represents the original work of authorship.’”

We see this happen with some frequency in the digital universe where repurposing content is relatively cheap and easy. A party wants to capitalize on the brand value of a notable work by making a use that infringes copyright, but they hope that some minimal measure of addition or change to the original work will meet the standards of fair use.  In fact, Rakoff’s opinion states that Colting and Medina “‘went to great lengths’ to achieve fair use protection,” implying that they made decisions based on how they believed fair use works (or how an attorney mis-advised them) but with little understanding of the actual doctrine.

Judge Rakoff held that defendants would be unlikely to prevail in weighing all four factors of the fair use test, stating, “Fair use…is not a jacket to be worn over an otherwise infringing outfit. One cannot add a bit of commentary to convert an unauthorized derivative work into a protectable publication.”  Even with my limited experience in the world of copyright law, I can imagine that quote will be cited in many fair use cases to come. It is one that should resonate with bloggers, YouTubers, and other digital-media creators who frequently imagine various uses to be fair uses when they are not.

Copyright is Not a Use-It-Or-Lose-It Right

One of the most important lessons in this case is revealed in the consideration of the fourth fair use factor, which weighs the potential market harm to the original works of authorship. While it is reasonable to think that a children’s version of a classic novel should have either no negative impact—or even a potentially positive impact—on sales of the original works, this is not the question on which the matter turns.

The exclusive rights in copyright, including the preparation of derivative works, are a not a use-it-or-lose-it proposition.  The author retains the right to change his mind and, for instance, prepare derivative works at any point during the term of copyright protection.  That right includes preventing the preparation of derivative works that the author or his assigns believe to be inappropriate uses of the original works.

Based on Judge Rakoff’s opinion, it seems that Colting and Medina were of the opinion that because the rights holders of these novels had not yet prepared children’s versions of these decades-old books, that some sort of limit had been reached, which should allow them to create their KinderGuides versions.  This reads as an attempt to argue that the defendant’s opinion that copyright terms are too long is the same thing as an affirmative defense for infringement.  “Indeed, the fact that any given author has decided not to exploit certain rights does not mean that others gain the right to exploit them,” stated Rakoff shortly before he opined that the defendant’s argument in this regard is tantamount to calling the copyright act unconstitutional.

Value to the Public

This rather arrogant assumption that the right to exploit a work in a specific way should devolve from the rights holders as a consequence of non-exploitation raises a question of value for me that is separate from—but adjacent to—the copyright issues.  As a parent who is reasonably well-versed in the literary arts, I’m skeptical about the value KinderGuides would be providing in this particular case.  If Kerouac-Lite existed, I don’t see why I would buy it for my kid.

As described in an older post, I remember being a new parent in the 1990s when the market exploded with billions of dollars worth of products and services designed to mold our children into geniuses.  It became necessary to step back from all that frenzy and think about which choices are truly in the interest of the child in contrast to those which more likely appeal to the egos of the parents.

In fact the 2016 New York Times headline announcing Moppet’s foray into American classics virtually echoes this tension between parent ego and child education.  Forget ‘Pat the Bunny.’ My Child Is Reading Hemingway, it says.  The notably careless mention of Pat the Bunny, which is a pre-reader’s tactile book, brings back memories of getting swept up in the marketing of things my kids don’t actually need.  One does not segue from Pat to Papa quite so rapidly.  And my instinct is that one shouldn’t.

My personal view in this regard is that children’s versions of works that may be described as foundational building blocks of literature and culture—The Odyssey, the Bible, Shakespeare, Norse Myths, Little Women, etc.—can be tremendously valuable.  While the 6-12-year-old is still learning fundamental literacy like spelling and grammar, this is a good time to introduce simplified versions of ancient stories and themes they will later discover resonating throughout their reading experiences. At least that’s the hope.

But publishing children’s versions of novels like On the Road or Breakfast at Tiffany’s in particular smacks of market opportunism with dubious educational value, especially in contrast to the wealth of great literature written purposely for children.  It’s not that it wouldn’t be possible to legally write the children’s version of a story about an “American geisha” (as Capote described Holly Golightly), so much as one has to wonder why one would do so.  Thankfully, Judge Rakoff offers a sober and informative opinion regarding KinderGuides’ efforts before they get any ideas about the works of Anaïs Nin.

American Identity is in the Music

My generation was raised on Schoolhouse Rock!. As such, we were not only told that America is a Melting Pot but were reminded of this on a regular basis in a song from that animated series, the melody of which is now ringing in the heads of any fellow Gen-Xers reading this post. Of course, the more mature truth is that America is not really a melting pot so much as it is a seething cauldron of incompatible ingredients that only manage to blend into something palatable after considerable simmer time. When The Great American Melting Pot episode first aired in May of 1976, it was just three months after violent race riots had broken out at a Florida high school over symbols celebrating the South in the Civil War.

In response to last weekend’s tragic events in Charlottesville, friends posted a number of comments and memes on Facebook contrasting the offense taken to NFL player Colin Kaepernick’s kneeling during the national anthem against the apparent dearth of outrage directed at Americans carrying Nazi flags in the streets. Granted, it’s hard to know the degree to which this particular hypocrisy really exists—I’d like to believe that most Americans across the political spectrum still denounce the waving of Nazi and Confederate flags in a violence-inciting, race-bating rally—but these allusions to the “Star Spangled Banner” resonate in context to the brewing clashes over nationalism and cultural identity. Kaepernick, who has now been joined by Michael Bennett of the Seattle Seahawks, has chosen an apt symbol of protest because the anthem is about as good an example as any of the distinction between American myth and American reality.

In 1991, playwright Tony Kushner sharply articulated America’s unique brand of hypocrisy in his AIDS-inspired play Angels in America when the gay, black character Belize says, “The white cracker who wrote the national anthem knew what he was doing. He set the word ‘free’ to a note so high nobody can reach it. That was deliberate.”

It’s a brilliant line.

Of course, the “white cracker” Francis Scott Key wrote the word free 34 years after the English composer John Stafford Smith wrote the high G to which Kushner refers. In 1780, the note corresponded with the lyric Venus in the song “To Anacreon in Heaven,” which was the official club song of the Anacreontic Society of London, a fraternity of mostly amateur musicians who would gather to enjoy concerts, drink, gossip, and drink more. As every American school kid is told, Key was moved to write the poem “Defence of Fort McHenry” upon seeing the flag still flying at dawn after heavy, overnight bombardment of the fort. Sung to the tune of “Anacreon in Heaven,” Key’s words would become the “Star Spangled Banner” but would not be adopted as the national anthem until 1931.

That the words of our anthem are American and the tune English—and the fact that they were paired during a war that is sometimes called the second revolution—reflects the fledgling creative voice of a new nation still writing its identity and still finding its place in the world. As the copyright critics love to say, “America is a pirate nation,” by which they usually refer to the fact that the book printers, shortly after independence, made a habit of pirating English books rather than pay to publish domestic authors. This is true. And had America remained a pirate nation rather than invest in its own creative capacity, the character of our society—and most likely our democracy itself—would be the worse for it. Because the voice that emerged, and which took nearly all of the nation’s first century to come into its own, is unambiguously multicultural, no matter what the bigots think. There is no such thing as “white male Christian” America, and there never was. Just listen to the music.

In fact, before “The Star Spangled Banner” became the official anthem by an act of Congress in 1931, the unofficial national song for many citizens and leaders was “America the Beautiful,” the lyrics of which are a poem written in 1893 by Katherine Lee Bates, a 19th century feminist who might have been gay. Conservative factions have occasionally lobbied for “God Bless America” as the national anthem because it places God in the center of the action, but this would provide little comfort to the kind of “conservative” on display in Charlottesville, since that song was written by a Russian immigrant jew named Israel (Irving) Berlin. (On a side note, Berlin also wrote “White Christmas,” and believe me, American Christmas celebrants would have precious little music to enjoy without Jewish songwriters.) Ironically enough, even though proposals from liberal groups to make the national song “This Land is Your Land” would be a non-starter, Woody Guthrie’s music is arguably the most American sound in the bunch. Though it is admittedly a bit jaunty for any kind of solemn occasion.

As students of the Enlightenment, the Founding Fathers understood that we would never get a seat at the grown-ups’ table of nations without fostering cultural and scientific enterprise, which was a pretty ambitious dream for a war-weary population of some three million farmers spread across an area of about 340,000 square miles. But what the hell? They had just won a revolution that should not have worked by any sane analysis and then sat down to write a user’s manual (a.k.a. the Constitution) for operating a society unlike any that had ever existed. Why not hope for great invention and art while they were at it? John Adams, in a letter to his wife Abigail dated May 12, 1780, expressed his hope for the country to attain intellectual and artistic stature thus:

“I must study politics and war, that our sons may have liberty to study mathematics and philosophy. Our sons ought to study mathematics and philosophy, geography, natural history and naval architecture, navigation, commerce and agriculture in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain.”

Adams’s implication that America’s progress toward maturity would be reflected in its capacity for increasingly refined creative and cultural enterprise was prophetic, except for his references to European classicism. He could not have imagined the extent to which our major contributions would be unequivocally modern, technological, and culturally diverse—that the American voice would be defined not by statuary, tapestry, and porcelain so much as by movies, theater, TV, and sound recordings that would blow the church doors off their hinges, making new messiahs out of rock stars and rock stars out of inventors.

In this sense, I think “The Star Spangled Banner” became truly American when Jimi Hendrix played his electric guitar solo version at Woodstock in 1969. Simultaneously patriotic and revolutionary, Hendrix’s tortured virtuoso (significantly instrumental and electric) synthesized the aristocratic and tight-assed “To Anacreon in Heaven” with the sins of racism, the self-betrayal of the Vietnam War, and the psychedelic explosion of counter-culture into a performance that told a much deeper, more painful, and more complex truth in the American-born language of rock-and-roll. This sound, which would not exist without the American slave diaspora, traveled back across the Atlantic, helped bring the children of WWII out of the rubble, and was even returned to its own roots by a new “English invasion” of the United States. This produced an artist like Freddie Mercury, who died of AIDS, and whose recording of “We Will Rock You” has been the unofficial anthem of every NFL game for years.

In a 2016 documentary about world-famous photographer Harry Benson, called Harry Benson: Shoot First, the artist discusses a photograph he took in Vietnam depicting a pair of wheelchair-bound veterans shaking hands—one American the other Vietnamese. Benson tells us that the Vietcong vet said to his former enemy, “We used to sneak up on your positions in the dark, not to kill you, but to listen to your music.” If that doesn’t say something about where our better angels live, I’m not sure what does.