Category: Art

Podcast – Artists’ Rights with Musician Blake Morgan

Blake Morgan

If it can be difficult to keep up with artists’ rights in the news, that goes double for music. Fortunately, there are some incredible artists who devote as much energy and passion to rights advocacy as they to do making music—and among those individuals is Blake Morgan. Singer/songwriter, recording artist, indie label owner, and producer, Blake epitomizes the hard-working, middle-class artist—grateful to make music for a living, but still a guy with a mortgage and bills to pay. In this podcast interview, Blake and I discuss the major threats he sees to artists’ rights and why he keeps fighting the good fight. And to say the least, his optimism is infectious. Hope you enjoy!

Photo by: Taylor Ballantyne

Episode Contents

  • 02:37 – Why I fight for artists rights.
  • 07:22 – The biggest threats facing artists.
  • 11:52 – The American Music Fairness Act
  • 16:27 – Dying of “exposure.”
  • 18:40 – A middle-class face on the cause.
  • 24:00 – Spotify’s “big payouts” to artists.
  • 30:00 – Support for the TikTok legislation.
  • 36:10 – Private equity investment in music catalogs.
  • 45:00 – The VanGogh diversion.
  • 46:10 – Advice to the next generation.
  • 50:11 – The latest album Violent Delights.

Articles/Posts Cited:

Spotify “Loud & Clear” Payout Report

“Same Old Song: Private Equity is Destroying Our Music Ecosystem” by Marc Hogan

Trichordist Guest Post:  “A musician’s View of the TikTok legislation” by Blake Morgan

Medical Illustrator Westwood Files Substantial Claim Against Publisher Thieme

Medical illustrator William Westwood

I met Bill Westwood last year when he contacted me to very kindly ask if I would like to speak to the Association of Medical Illustrators (AMI) about copyright and artificial intelligence. I was aware of medical illustration as a specialized field but didn’t know much about it until I drove up to Albany to visit Westwood at his studio. In business for himself since 1982, the tools and artifacts in his workspace span old and new school—ink and paper alongside stylus, tablet, and large-screen monitor. The bookshelves indicate the substantial amount of research and medical training involved in the craft, and yes, a skull sits on one of the tables, completing the Vanitas tableau.

In a copyright context, I was curious about the creative aspects of medical illustration, assuming the specialty demands rigorous attention to unprotectable facts serving a highly utilitarian purpose. And although that’s true, perhaps the creativity of the illustrator is most essential when the utilitarian demand is most critical. For instance, Westwood showed me illustrations he was making for a plaintiff in an injury lawsuit and described the process of achieving clinical accuracy that also conveys the nature of the injury to a lay jury. I winced at one of the drawings, and he said, “See, that’s just about the right response. Not freaked out, but you get it. Because by the time the plaintiff is in court, she has already healed, so the illustrations tell the jury what really happened to her in the accident.”

A leader in the field and recipient of multiple awards, Westwood was introduced to medical illustration in 1966 during his junior year at Georgia’s Mercer University. A professor had given him a poor grade in a design class, and when he confronted her about it, the ensuing conversation included her recommendation that he look into the medical specialty. Westwood had never heard of medical illustration, but when the head of the art department arranged a visit to the graduate program in Augusta—one of four in the country at the time—Westwood was hooked. “Within a matter of a couple of hours, my mind was totally blown, and I said this is what I gotta do,” he explains in a video profile produced by WMHT.

Drafted into the Infantry during the Vietnam War, Westwood had to postpone the final year of the three-year graduate program, but he was fortunate to avoid combat when he was attached to the 23rd Medical Illustration Detachment with the Army’s 2nd General Hospital in Landstuhl, Germany. After the service and completing the Augusta program, he worked as the Surgical Illustrator at the Mayo Clinic, where he met the Head of Plastic Surgery, Dr. Ian Jackson, a star in the field. In 1982, Westwood opened his own studio, and shortly thereafter, Dr. Jackson contacted him about providing the illustrations for what would become a landmark textbook entitled Jackson’s Local Flaps in Head and Neck Reconstruction.

First published in 1985 by Mosby, Westwood drew 527 illustrations for the book and, by contract, retained his copyright rights in the images. Dr. Jackson has passed away, but his original textbook is now in its 3rd edition, retailing on Amazon for over $300, and is today published by Thieme. One problem, though:  around 400 of the now-colorized original illustrations still appear in the book without attribution to, or license by, Bill Westwood. After attempting, through his attorney Ed Greenberg, to resolve the matter outside court, Westwood filed suit last month against the publisher, naming current authors, Drs. Peter Neligan, David Mathes, and Brian Boyd as co-defendants. A response is due in a few weeks, and I am curious as all getout as to what the defense will say about this one.

The alleged infringements appear to suggest one those instances when intellectual property is transferred by sale—Thieme is the third to publish the title—but nobody is being careful about all the rights and contracts attached to the property. Either that, or someone made an affirmative and unwise decision to both prepare unlicensed derivatives of Westwood’s illustrations and to remove his name and notice of copyright from the book.

Although a notice of copyright is no longer required, removal of a notice with intent to infringe is a violation of law, and at the very least, the removal of a notice weighs against any attempt by a defendant to claim “innocent infringement.” Also, it seems rather difficult to claim innocence while revising material in a nearly 400-page textbook that’s been around for 40 years. Willfulness is a big deal here because if Westwood proves the infringement was willful, the maximum statutory damage award is $150,000 x “at least” 397 images, according to the complaint. That’s about $60 million plus attorney fees, if the case goes that far.

I contacted Ed Greenberg, who’s been practicing copyright law for about as long as the textbook has been around. “I don’t go to court without a solid case, and we sent Thieme a seven-page letter asking them if they could produce any exculpatory evidence—anything showing that they had reason to believe they had a right to use Bill’s illustrations. And we received nothing.”

In the same way that Westwood’s illustrations provide the above-mentioned injury case with insight that words cannot convey, I imagine the customer who buys Dr. Jackson’s book would find its value substantially diminished without the illustrations. As such, and given the scope of the entire project, a case like this confuses me. I get why certain parties, especially individuals, make infringing use of one work or make poor assumptions about fair use. But Thieme is a global operation as a publisher. How does nobody check the licensing status of several hundred images being reused in a new edition? You would think somebody might ask the $60 million question, but we’ll see what Thieme et al. say in response.

Internet Archive Introduces “Rice Krispies” Defense in Copyright Case

Internet Archive advances Rice Krispies defense.

When Internet Archive lost resoundingly in the Hachette (book publishers) case, the court rejected its cockamamie legal theory called controlled digital lending (CDL). Then, when a group of record labels (UMG et al.) filed suit against IA for infringing reproduction, distribution, and performance of sound recordings, I wrote at the time that there’s no way IA has an unfounded theory to test drive in this case. Who knew they had yet another cockamamie idea on deck?

In a small, semantic gift to counsel for plaintiffs, IA has argued that the preservation of “hisses, crackles, and pops” on the pre-1978 sound recordings favors a finding that their reproduction, distribution, and performance of those recordings is fair use. “Defendants’ newly devised Rice Krispies argument for fair use here is even less credible than Internet Archive’s previous fabricated fair-use theory for books that the Southern District of New York recently eviscerated,” the plaintiffs’ response states.

At issue is IA’s “Great ’78 Project,” which digitizes, distributes, and digitally streams older sound recordings on the premise that it does so for preservation purposes and to make “rare” recordings available to the public. If the recordings at issue were indeed rare, the project might have a reasonable claim to exceptions under the Music Modernization Act (2018) which allows libraries and archives to make pre-1972 sound recordings available if they make a good-faith effort to determine that the recordings are not commercially available. Here, the record labels present evidence that the relevant sound recordings IA makes available can be found commercially, including on major streaming platforms.

So, because IA does not have a solid argument that the sound recordings at issue are hard to find, it overstates the historic value of the Great 78 Project thus: “Preserving these records as they would have been heard and experienced by listeners at the time they were made approximately one hundred years ago is a critically important part of archiving these works.” Is it though?

If we’re going to play this game, a 78RPM shellac resin disk that has degraded in random ways over the decades, and is then digitized and played via computer in the 2020s will NOT match the “experience of a listener” in, say, 1935. A brand-new disk in 1935 played on a phonograph of the period sounded different to that listener than the file IA produces by acquiring and digitizing that disk in 2018. Relatedly, a serious audiophile will tell you that a pristine vinyl album plays back sounds (overtones, etc.) that are lost in digital reproductions like CDs. Yet, these qualitative distinctions have no bearing on the copyright rights in the sound recordings, whether the reproductions are fixed in vinyl, CD, MPEG file, or crystals.

To the extent that there is some forensic, archeological value in any of the dust and noise in the old grooves of a 78 disk, this implies such a distinctive (if not eccentric) field of research, that it hardly justifies making the material available to the general public via the internet. I think a conservator would agree that the physical disks comprise a valuable collection and that, perhaps, storing a digital archive would be of use, but a conservator might question the historic significance of modern, random damage done to a given disk embodying an old recording. What if two tiny scratches were made in 1973 and 1996? What history is the contemporary listener hearing? Even if we knew that history, how important is the scratch Betty made when she bumped the record player that time Larry tried to cop a feel? It’s not quite the same as, say, the margin notes written by the composer on the original sheet music.

I’ll leave the preservation discussion there, however, because as a legal argument, the Rice Krispies defense is rather soggy. As the response for the plaintiffs states, “Fair use cannot be perverted into forfeiting a sound recording’s protection under copyright law just because the recording is copied, distributed, and performed in something other than its cleanest sound. If ever there were a theory of fair use invented for litigation, this is it.”

Presumably, IA wants to show that for the purpose of “education” or “scholarship,” named in the preamble of the fair use statute, its reproduction and distribution of the sound recordings “as listeners would have heard them a hundred years ago” is sufficient to find that the factor one analysis favors fair use. Notwithstanding the other three factors, even if IA could convince the court that random “hisses, crackles, and pops” are of general cultural value, the archive is overreaching on fair use.

The fair use exception anticipates some new authorship that enhances or expands the value of the work used. In the context of scholarship, this typically means that a scholar uses some portion of a work to author commentary, criticism, or analysis. Further, the scholar’s new work is separately protected by copyright as a new expression. By contrast, IA reproduces, distributes, and performs protected expression (the music recording) mixed with extraneous and random sounds that nobody has authored.

Just because someone might be able to ascribe significance to those random noises, this does not exempt the use under factor one—especially after the Supreme Court in Warhol rejected such broad and vague rationales of this nature. To put it another way, even if a human author were to intentionally add crackles and pops to a sound recording, he would have to prove that those additions comment upon the original work, or his reproduction would be an unlicensed (infringing) derivative work.

IA is trying to fit itself for a fair use defense that no individual, follow-on author could easily advance. Of course, their grasping at fair use is based partly on the fact that IA is an archive providing a useful resource like Google Books. But as they have not presented an argument on that basis (which would also not win), and because they tacitly admit that the Great ‘78 Project falls outside statutory exemptions, it looks once again like the anti-copyright ideology of Brewster Kahle is the reason they’re bringing Rice Krispy Treats to this party. What can I say? The guy’s a cereal infringer.