Category: Art

Let’s Be Sure To Kill the Songwriters

I have said a few times on this blog that contemporary politics in the United States is increasingly reminiscent of the turbulent 19th century.  We only have 2.4 centuries of existence as a nation, and it took half of that time just to begin to fulfill the promise of equality—principally by advancing of the rights of labor relative to the power of capital.  Now, sadly, we seem to be moving in the opposite direction; and a new bill introduced in the House reveals that big capital—shiny digital-age capital—is not quite done eviscerating the rights of songwriters and musical artists.

As long as U.S. public policy is in a general state of chaos, we might as well write a bill that would allow corporations the size of Google and Amazon to steal from songwriters with impunity.  That’s not how Rep. Jim Sensenbrenner’s (R-WI) “Transparency in Music Licensing Ownership Act” is being presented by its proponents, of course, but that’s basically what it is.  And sources tell me there are murmurs within the Judiciary Committee about applying the same rationale (to use the word kindly) to all copyrightable works in addition to music.

A Bit of Context

As many readers know, songwriter David Lowery (of Cracker and Camper Van Beethoven) led a class-action suit against Spotify for publicly performing unlicensed songs.  The streaming company claimed it had made every effort to find the correct parties to pay license fees, but could not locate them.  Normal behavior would suggest that you don’t use the work until you get the license; but asking permission is just not the Silicon Valley way. Hence the lawsuit, which was settled this past May with Spotify creating a $43.4 million fund to compensate the publishers and songwriters whose works were used without license.

Then, as reported in detail by attorney Chris Castle, major music-streaming services—Google, Amazon, Pandora, and Spotify—have been exploiting a provision in the copyright act that was originally designed for single-use, good-faith actors, but which is now a giant loophole for predatory corporations with big computers.  Section 115 states that if the USCO record does not contain address information where a rights holder can be served, a prospective user of a work may instead file a Notice of Intent with the Copyright Office.

The big data companies have been abusing this provision by filing millions of NOIs against songs whose authors can very much be found, if one actually looks.  As Lowery notes in a recent post on The Trichordist, Google allegedly could not find Brian Wilson and so filed an NOI for an obscure ditty called “Surfer Girl.” Think of this NOI maneuver as a temporary liability shield for mass infringement—not an outright exemption so much as an elaborate stall tactic—a hack—that can only be achieved by companies with big computing power.  Meanwhile, creating an outright safe harbor for mass, corporate-scale infringement requires legislative action, and that’s where Rep. Sensenbrenner’s bill enters the story.

HR 3350 is Not What It Seems

On the surface, Sensenbrenner’s bill looks like a modernization initiative. Ostensibly, the proposal would amend the copyright act by mandating that a new database for musical works and sound recordings be created and maintained by the Register of Copyrights.  The bill is being sold as a means to more efficiently get artists paid by updating and fixing the public records.  And while nobody can claim the current, searchable database of the USCO is up to par, this is a) not the reason Google can’t find Brian Wilson; and b) not an issue that will be ameliorated by this half-baked legislation.  Most insidiously, this bill threatens rights holders’ ability to enforce their copyrights at all (more on that below).

Copyright Office modernization is a much-desired, highly-politicized, and underfunded goal that has been in the proverbial works for years.  As such, it seems hardly efficient to introduce legislation, which implies that there is now some urgency to create this database for two categories of works.  Suddenly, we need to develop a music database (which happens to be redundant to those maintained in the private sector) outside the context of any broader agreement about USCO modernization and the appropriations necessary to achieve that outcome.

This suggests that the urgency of Sensenbrenner’s bill is driven by the combined $1.5 trillion worth of corporate entities represented by a lobbying group called the MIC Coalition. Comprising the above-mentioned music streaming companies, terrestrial radio networks, consumer electronics companies, and hotel and retail giants, what these industries like about HR 3350 is that it directly weakens a rights holders’ ability to enforce his copyrights, period.

Preempting Liability

While many critics complain about statutory damages, they are fundamental to any rights holder’s ability to enforce a claim of copyright infringement.  Proving that an infringement has occurred is often quite straightforward, while proving exactly how much harm a specific infringement has done to the owner is far more subjective. For instance, some harm may be qualitative and hard to value in monetary terms.  Thus, the federally-mandated penalties for infringement act 1) as a deterrent; and 2) as an incentive to settle the majority of relatively simple cases in which attorneys for both parties typically know what the outcome of an otherwise costly trial would be.

Registration with the USCO is already required in order for a rights holder to be eligible for statutory damages in a prospective litigation.  But the provision in Sensenbrenner’s bill would mandate that rights holders register via this new database or forfeit their eligibility for statutory damages.  So, among the unanswered questions this bill begs is what it would cost rights holders to newly register and/or maintain their records in this as-yet-undeveloped database.  For instance, would an out-of-date phone number automatically nullify a rights holder’s eligibility for statutory damages in a litigation? And what would it cost a rights holder like a photographer, with thousands of copyrights, to change every record — depending on how the database is designed?

This NPR story by Andrew Flanagan calls HR 3350 “opaque” and quotes attorney Lisa Alter as saying, “It’s basically a prophylactic for copyright infringement.”  And that’s exactly what it looks like to rights advocates—a preemptive measure to evade liability for mass infringement of works, disguised as a modernization mandate. It even has the word transparency in its name to help with that confusion.

What About My Coffee House?

In a much older post, I referenced my local coffee house as a place that hosts an open mic night and, therefore, pays the three major PROs — ASCAP, BMI, & SESAC — and displays a sign at the entrance telling musicians to “play whatever they want.”  While the proprietor is focused on ordering supplies, managing his employees, brewing coffee, baking killer muffins, and catering to his customers, I imagine paying the annual PRO fees is about as much time as he will ever want to devote to thinking about music licensing.

As such, it’s hard to imagine how this small venue owner, and millions just like him, would benefit from this proposal despite the claims by mega-corporation proponents to the contrary.  At best, these databases are useful for prospective users of individual works, but the small proprietor of a bar, restaurant, or store has little to no use for that level of detail. He just wants music in his establishment.

While the language in this bill creates a brand new safe harbor shield for businesses like Pandora, Google, and Amazon—and perhaps even a major hotel chain—it’s likely to be somewhere between useless to harmful to my local coffee house owner.  Sensenbrenner is considered by industry professionals to be an enemy of the PROs, and it’s unclear the extent to which this bill could wind up harming those organizations. If this were to happen, though, that’s about as helpful to a small business owner as saying, “We got rid of the power company, so all you have to do now is buy every kilowatt from a different supplier.”

All Creators Should Reject this Bill

To quote Chris Castle, “It’s rare that the Congress can accomplish the hat trick of an interference with private contracts, an unconstitutional taking and an international trade treaty violation all in one bill.”  But he asserts that HR 3350 would achieve all three of these feats in a single act.  I proposed in a recent post that Napster gave us Donald Trump, which was just a provocative way of saying that I believe we accelerated the devaluation of labor and labor rights relative to capital when we presumed to reject the copyrights of musical artists and literally gave the artists’ money to tech VCs and criminal organizations.  Apparently, that narrative is still being written. Songwriters and musical artists are still the proverbial canaries in the coal mine; and it’s unclear if anyone will notice if they stop singing.

Getting away with infringement doesn’t mean it’s cool.

Photo by Max Dubler. Used by permission.

Last week, while I was writing my last post about photographer David Slater, a story on PetaPixel was making the rounds.  Written by photographer Max Dubler, the title is a refrain of an all-too-familiar theme.  No You Can’t Use My Photos on Your Brand’s Instagram for Free, says Dubler.

Dubler has carved out a niche photographing the world of downhill skateboarding and reports, “A few days ago an established, successful small longboard brand downloaded one of my pictures from an event in Canada and posted it to their Instagram account.”  It seems as though I see a story just like this posted by photographers at least once a week. Corporate entities use images without permission to promote their brands on social media, but without the slightest awareness that they need permission from the photogrpaphers.  Not only do these appropriations themselves reveal a core dysfunction among business operators, but the smugness with which some of these parties respond shows the extent to which these platforms and the anti-copyright agenda have warped common sense.

Dubler allows riders to share the photos he takes on social media but asks that any business entities that wish to use his images to contact him for permission.  When he wrote to the longboard company to tell them that he charges $25 for social media use of his images (a tiny fee by the way), the company representative wrote, “Seriously? We don’t pay for Instagram shares, and we always give proper credit, I mean, who pays for Instagram shares lol. I will take it off if you wish Max.”  This fairly represents many attitudes out there.  The exchange goes on a bit further with Dubler explaining that the use had already been made and the $25 needed to be remitted; but the company representative ultimately wrote, “Go extort someone else.”

In response to that attitude, here’s a traditional scenario:

If a photograph is registered with the Copyright Office and the photographer is, for instance, represented by a stock company with some legal muscle, the smug business owner—instead of receiving a demand for the pocket-change of $25—might get a bill for like $3,000 along with a letter stating that if the company doesn’t pay that fee, it will be sued for $150,000 in statutory damages for copyright infringement.  At this point, the cocky idiot who wrote the rude “extortion” response would then find out from his own attorney that his company’s infringement is indefensible, and the harsh, $3,000 lesson would be richly deserved. The managers of this company would never use another photo without first thinking “Dude, maybe we need permission.”

Unfortunately, most independent rights holders like Dubler have no practical means for enforcement because the cost of filing a federal lawsuit is extraordinarily high.  This is why it is important for independent creators—perhaps visual artists most of all—to endorse current proposals to create a copyright small claims system.  Without this remedy, it is simply too easy for corporate entities in particular to appropriate work they should be paying for. And some people only ever learn when they feel a little pain for making bad decisions.

Keeping in mind that authors of copyrighted works are also entrepreneurs (usually very small businesses), any other business operator should recognize that using the product of an authors’ labor without permission is both uncool and illegal.  Anyone who runs a business knows what expenses look like and knows that marketing materials are usually an expense. One should assume, therefore, that if the source or legal status of an image is unknown, that it is not just there for the taking.

As Khloe Kardashian’s Instagram infringement story makes clear—and businesses everywhere should note—posting a copyrighted photograph to social media without permission infringes the photographer’s right to reproduce the work and his right to publicly display the work. And if the user removes the rights information from the image, as Kardashian is alleged to have done, that’s another violation of a separate statute.

I understand that social media is a fast-moving, free-wheeling environment where infringements happen all day long; and I sympathize with individuals (not businesses) who inadvertently commit infringements based on well-intended, but false, assessments of fair uses.  I wrote about one friend running into this kind of problem with her blog. In that post and others, I have laid some of the blame on the voices of the anti-copyright agenda for promoting misunderstanding about fair use, which can get independent creators into trouble.

Far too often, though, when creators do enforce their rights, this is characterized by bloggers and the press as an unreasonable imposition on small businesses—thus justifying in one guy’s mind the use of the word extort.  But not only are these loose appropriations frequently committed by companies of every size, it is awfully hard to imagine the same hew and cry ringing out if a company is expected to pay for office supplies or internet access or to advertise with Google. Yet, somehow creative works are assumed to be different. They’re not.

Millions of creative professionals today encounter assumptions that their work should be performed free of charge and/or that work already created should be “shareable” on the internet without permission or compensation.  It is a dysfunctional attitude that devalues human labor, and we are already seeing signs of this corrupt notion manifest in business sectors beyond the creative industries.  In light of some of the predicted effects that automation may have on employment, how we value human labor is one of the existential questions facing the generation called “digital natives.”  In the meantime, any company that just takes without asking really does deserve to get sued. It’s the only way some people learn.

“Monkey selfie” photographer reportedly broke. And for what?

Photo sources by mrbrainous & artush

This is a story about how people with self-righteous and futile agendas end up harming creators for absolutely no reason—and even end up harming society in the bargain. I’ve made light of the “monkey selfie” case in past articles because it’s hard not to. I mean, there’s a monkey in it.  But for U.K. wildlife photographer David Slater, it’s no laughing matter, especially after the organization PETA decided to sue him on the grounds that the copyright in the photograph belongs to the crested macaque depicted in the image.  The Guardian reports that Slater is now financially broke as a result of defending himself in this ridiculous case, and it’s impossible to fathom an upside to any aspect of this whole story. But let’s back up a little …

In 2011, Slater was working on the Indonesian Archipelago on the island of Sulawesi, studying a troupe of black crested macaques. These animals are endangered, hunted for meat, and it is only because of photographers like Slater than many of us even know a damn thing about black crested macaques.  According to his own statements, Slater spent three days learning to use the animals’ natural curiosities to his advantage and then purposely set up the conditions by which the macaque in the “selfie” (a female he refers to as Ella), ultimately snapped her own image while he braced the camera on a tripod.

There is nobody—other than the monkeys themselves—who can refute Slater’s description of the conditions by which the photo was made; and as this is the only evidence available, his account would seem to tilt in favor of his ownership of the so-called “monkey selfie.”  Based on American case law in photography, from the seminal case (Sarony v. Burrow Giles, 1884) to the present, I don’t believe it is farfetched to expect that a court would hold that Slater made enough creative choices in the production of this photograph to affirm his copyright.  But even if I’m wrong about that, it’s not for me or any party other than a court to really decide. As such, I personally would not use the image, even though I can get away with it.

But Wikimedia took it upon themselves to litigate that decision internally and then made the “monkey selfie” freely available to the world via Wikimedia Commons, refusing Slater’s request to have the photo taken down from the site. By the time the “monkey selfie” controversy hit social media, the dominant narrative seemed to be that Ella had randomly stolen Slater’s camera and inadvertently snapped an image of pure happenstance, which does not square with Slater’s own story.  If this were the case, however, then Slater’s claim of copyright in the image would be very weak.

But unless there is some evidence to contradict Slater’s own account of how the image was made, Wikimedia had no grounds, other than its own bully-sized weight, to assert that the photo lacked any copyright whatsoever. According to The Guardian, Techdirt followed in kind, also refusing to take down the photo, and Mike Masnick published a few articles asserting the absence of a copyright in the image as though it were a settled matter.  But it wasn’t a settled matter. Neither Masnick nor the Wikimedia Foundation had any right to declare that Slater’s claim of copyright in the image was invalid, which amounted to these parties—along with every other entity that used the image thanks to Wikimedia—essentially saying, “So, sue me.”

Many who rail against the enforcement of copyright in the digital age, suffer from the delusion that they are always defending the little guy against corporate or state power.  Sometimes, this is true, but not nearly so often as they like to think.  In fact, many self-appointed defenders of “digital rights” trample little guys all the time, and without in any way acknowledging that they’re doing so. The point I want to stress here is that Wikimedia, Masnick, and others were standing on their own notion of principle; and it would not occur to any of these parties to consider a) the standard of “originality” in copyright is subtle; b) there may be more nuance to the author’s claim than they think; or c) when in doubt, some basic respect for the presumptive author of a work might be accorded.

That last thought about respect seems entirely anathema to the opponents of copyright, which is part of what makes this story so egregious. Wikimedia and Masnick were both making a point that served no purpose other than to advance a maximalist (yeah, I said it) anti-copyright view. And society did not benefit from any of this nonsense.  Instead of Slater licensing the photo and using the revenue to pay his bills and then set off on another expedition, he’s now deprived of revenue, and society actually loses whatever photographs he is now not capturing.  “If everybody gave me a pound for every time they used [the photograph], I’d probably have £40m in my pocket. The proceeds from these photographs should have me comfortable now, and I’m not,” says Slater for The Guardian.

Enter PETA

It is at least likely—though we probably can never know—that it was Wikimedia’s initial refusal to consider Slater’s copyright that ultimately brought the “monkey selfie” to the attention of PETA. In a certain sense, this might have been like PETA’s too-good-to-pass-up “Dancing Baby” moment.  A monkey took a selfie, and the story went viral?  How could they not seize such a golden opportunity for anthropomorphic evangelism and fundraising? Of course they had to assert that the monkey owns the copyright.  All they had to do was sue the photographer.  Sure, he might go broke defending himself, but screw him because PETA is opposed to humans “exploiting” animals by taking pictures of them in the first place.  (Spoiler: I don’t have any love for PETA).

Now, don’t get me wrong, I think the humane treatment of animals is important.  But if this organization is going to spend federal-lawsuit money arguing that an animal can own a copyright, this only proves that they neither understand copyright law nor really give a damn about the welfare of the animals themselves. In fact, if they just spent the litigation money on the macaques’ behalf, they’d do more good; but that isn’t what PETA seems to care about. What they seem to care about is evangelizing a maximalist view of animal rights and bringing attention to themselves. David Slater is just collateral damage in their agenda, never mind that he’s the only party in this whole fiasco who has actually done anything positive for this endangered species.

Some of the reporting about this story, like this article in The New Yorker by Jay Caspian Kang, places too much emphasis on button-pushing with regard to copyright in photography.  Even the photograph that affirmed the copyrightability of photographic works in the U.S. in 1884 was not captured by the owner pushing the proverbial button. The standard for consideration begins with the question of who made the creative choices—and this can be quite minimal—to produce the resulting image.  So, without much deliberation, the courts ought to be able to glance at precedent and conclude that unless a monkey, or any other fauna, can minimally express the choices or steps she took to produce the image created, there are no grounds for her owning a copyright.  Unsurprisingly, intellectual property is not available to creatures that have not developed a capacity for communicating complex concepts through language.

Still, as the PETA lawsuit now burns time and money at the Ninth Circuit Court of Appeals, what social interest can anyone say has been served by either the digital rights or the animal rights activists deciding that David Slater is not the owner of this photograph?  Slater is now looking for work other than photography to pay his legal fees; the macaques get nothing out of all this grandstanding; and zero progress is made in copyright law in any useful context.  I guess people can feel free to make Ella-the-Macaque memes on Facebook?  Right, they’ll do that anyway.

Yeah, this whole story is a joke. But it isn’t actually funny.