Category: Intellectual Property

Reality Check – H.R. 1695

Photo by stefanocarocci

H.R. 1695, The Register of Copyrights Selection and Accountability Act, passed in the House of Representatives last week with a vote of 378-48.  As the bill moves to the Senate, many of the usual suspects in anti-copyright circles have vowed to fight its full passage into law. By “fight,” I assume these groups will repeat a bit louder the same fictions they began saying when the bill was introduced.  I have already responded to the assertion that this organization change will adversely politicize the role of Register; but there is also at least a muttering insinuation out there that 1695 is somehow a rebuke of Librarian Hayden herself.  And because politics breeds narratives that often have little to do with the issues or the record, I thought a review of the record as a simple timeline might be helpful.

1897 —  As indicated in at least two posts, the creation of the Copyright Office within the Library of Congress dates back 120 years and was predicated on a function very different from the role of the office in a modern—let alone digital—world.

1970s—Present — Unofficial discussions among policymakers and copyright experts about the proper structure and location of the USCO have been happening for decades.

Summer 2013 — The House Judiciary Committee begins preliminary hearings as part of its comprehensive review of copyright in the United States.

Fall 2014 — The Committee accepts recommendations on restructuring the Copyright Office, and among these are proposals to make the Register a presidential appointee just like the Librarian.

June 4, 2015 — Representatives Judy Chu (D-CA) and Tom Marino (R-PA) present a discussion draft of the CODE Act, which includes a provision to make the Register a presidential appointee.

June 10, 2015 — The LOC announces that Librarian James A. Billington will step down as of January 1, 2016.

February 24, 2016 — President Obama announces his intention to nominate Dr. Carla Hayden as Librarian of Congress. Anti-copyright voices respond almost immediately with ebullient expectations that Hayden might reshape copyright policy.

August 2016 — Anti-copyright organizations declare that the FCC’s “Set-Top” Box proposal has “nothing to do with copyright.” Because this view does not square with Register Pallante’s testimony on the matter, these groups cite this difference of opinion as “more evidence” that Pallante is beholden to corporate rights holders.  Neither Pallante’s remarks on the FCC proposal nor her official testimony on a wide range of issues supports these criticisms.

September 2016 — Dr. Hayden assumes her position as Librarian of Congress. In that same month, Public Knowledge appears to be leveraging the FCC-related momentum when they release a “report” comprising innuendo, anecdote, and opinion to accuse Pallante and the entire USCO of “regulatory capture” by major rights holders.

October 2016 — Register Pallante is effectively fired by Dr. Hayden, sparking much speculation in the blogosphere. Regardless of what really occurred at the LOC, Pallante’s ouster is portrayed by anti-copyright organizations and pundits as Dr. Hayden “cleaning house.”

December 2016 — Dr. Hayden announces plans to use Survey Monkey to crowdsource input regarding the next Register of Copyrights. In all likelihood, this move is not well-received by Congress in light of the fact that the House Judiciary Committee had begun to consider making the Register a presidential appointee at least sixteen months prior to Dr. Hayden’s nomination.

March 23, 2017 — Co-sponsors Rep. Bob Goodlatte (R-VA) and Rep. John Conyers (D-MI) along with 29 bi-partisan cosponsors introduce H.R. 1695.  The bill passes out of committee with a vote of 27-1 then passes the full House 378-48 on April 26, 2017.

Following their standard MO, institutions and individuals opposed to copyright—and who might have been hoping that Dr. Hayden would reshape policy—have tried to portray 1695 as a fast-track, Trumpian power-grab from the new Librarian. This false narrative is further distorted by the optics—namely that Dr. Hayden is the first African American woman to hold the position.

But the record is what it is. There is nothing fast-track about reorganizing an office that opened more than a century ago under radically different circumstances.  And the on-record discussions and plans now manifest as H.R. 1695 predate by more than a year both the nomination of Dr. Hayden and any clear expectation that Donald Trump would become President.

The bill was introduced by a 26-term Representative who was present at Selma, was a founder of the Congressional Black Caucus, and who introduced the legislation to make Martin Luther King, Jr’s birthday a national holiday; so any implications of racism in some kind of Trump v Hayden story are as ideologically absurd as they are chronologically impossible.

Finally, the primary motivation for making the USCO independent of the LOC is that they simply perform two distinct functions.  Any hope on the part of anti-copyright interests that Dr. Hayden–or any Librarian–would dramatically reshape copyright policy solely by virtue of the organization chart, is whimsical at best.  Such an incoherent approach would undermine both the Copyright Office and the Library of Congress.

Can “Charging Bull” Artist Have “Fearless Girl” Removed?

When the story first broke about the “Fearless Girl” statue, I didn’t pay it much more attention than I had ever given to the “Charging Bull” that the girl now faces in her defiant, wind-blown pose.  I always assumed the bull simply represents the financial industry the same way I assume “The Garment Worker” statue on Seventh Avenue represents the fashion industry.  Then, when “Fearless Girl” arrived, I figured somebody was making a dual statement—one about women in business, the other about voracious capitalism—and my reaction was somewhere between ambivalence and supportive amusement. I liked the spirit of “Fearless Girl” on first impression but had little interest in all the discussion about it.

Of course, one of the most intriguing aspects of art—and perhaps this is even more pronounced with public art—is that context changes everything.  Appropriation art is usually meaningless without context, and there is an extent to which “Fearless Girl” is an appropriation. Credit for making me think about this goes to author/photographer Greg Fallis, who wrote a blog post after getting some social-media flack for saying that “Charging Bull” sculptor Arturo DiModica “has a point” in requesting that “Fearless Girl” be removed from its installation.

This is of course the outer layer of context:  once a work is in the public eye and has been imbued with a particular significance (in this case feminism tinged with anti-corporatism), then any complaint or comment about the work is apt to be distorted by that lens. And woe to the critic as a result.  Mayor DeBlasio’s office, in response to DiModica’s request to remove the new statue, tweeted “Men who don’t like women taking up space are exactly why we need the Fearless Girl.” On this point, I agree with Fallis that the Mayor’s statement is both true and perhaps entirely beside the point with regard to the nature of DiModica’s complaint.  You may not be surprised that it has something to do with copyright. (And spoiler alert:  I don’t think he has a case.)

I didn’t know until reading Fallis’s blog that Arturo DiModica owns “Charging Bull” and that he produced and initially installed the work at his own expense of roughly $350,000.  An Italian immigrant, inspired by the kind of patriotism unique to immigrants, DiModica began working on the bull in response to the malaise that followed a major financial markets crash in 1986.

The bronze, three-and-a-half-ton work took more than two years to produce; and in the early morning of December 15, 1989, DiModica and his friends “dropped” the bull on Broad Street in front of the New York Stock Exchange—a gift to the city that was, as Fallis eloquently writes, “…maybe the only significant work of guerrilla capitalist art in existence.” The NYSE did not appreciate the gift and had the bull removed; but citizens, the Parks Commissioner, Mayor Koch, and the Bowling Green Association worked to place the “Charging Bull” where it has stood ever since, at the northern end of Bowling Green.

For DiModica, “Charging Bull” was not so much a statement about the swaggering bronze balls of capitalism but was meant, according to the artist’s website, as a “gift of encouragement to New York and the world.”  As symbols go, one might consider that the southern tip of Manhattan—originally colonized by the Dutch—is the birthplace of America’s more entrepreneurial, culturally diverse, and free-spirited nature.  So, the bull charging northward out of this part of the city can certainly be considered in a broader context, but let’s face it:  an eighteen-foot bronze bull standing in the heart of the Financial District can no more escape its capitalist connotations than it can run to the Upper West Side to shop at Zabar’s.

Enter “Fearless Girl,” which was made under very different circumstances.  In short, she is an advertisement for a socially-conscious investment product called SHE, offered by State Street Global Advisors with over $2.4 trillion in assets under management.  The girl standing up to the bull was commissioned by this Wall Street firm, conceived by advertising giant McCann, and purposely “dropped” in front of the bull the night before International Women’s Day.  So, it’s guerrilla art-ish—if corporate backing, ad-agency planning, and city permits count as guerrilla.

What Are DiModica’s Rights?

The commercial nature of “Fearless Girl” may or may not sully her relevance in the eyes of the public, but it is central to DiModica’s complaint and desire to have her removed.  Placed in defiance of the bull, DiModica contends, that the girl changes the meaning and intent of his work from something positive to something negative. In this regard, “Fearless Girl” is appropriating “Charging Bull” by changing the context of the original work; but because this appropriation has been done to promote a product sold by SSGA, attorneys for DiModica are considering whether or not to file suit under a law known as the Visual Artists Rights Act (VARA).

Passed in 1990, the VARA is part of the Copyright Act, §106(A), and it primarily concerns the right of an artist to protect his/her reputation by preventing the misuse of his/her name.  Rights pertaining to reputation of the artist rather than those solely focused on the works are referred to as “moral rights,” and they are a particular subset of intellectual property.   The part of the VARA statute that would theoretically pertain to DiModica’s complaint would be the artist’s right to the following:

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right.

According an article by Isaac Kaplan about this possible legal case, attorneys for DiModica will look at both the commercial aspect of “Fearless Girl” and at the fact that the city apparently allowed for an extension of the cobblestone foundation to accommodate the new statue.

If the cobblestone base can be considered part of the original work, this would potentially implicate the VARA statute prohibiting “modification,” but that modification has to be “prejudicial to [the artist’s] honor or reputation,” which sounds unlikely to prevail to this layman’s ear.  Moreover, the original circumstances pertaining to the installation of “Charging Bull” in 1989 appear to indicate that only the bull itself belongs to DiModica but not any vision of placing it on a cobblestone base at the tip of Bowling Green.

I suspect the commercial nature of “Fearless Girl” would also be unlikely to persuade a court that the work infringes DiModica’s rights under VARA, though this argument certainly gets into an area that could theoretically harm an artist’s reputation.  In this case, DiModica’s attorneys would presumably have to demonstrate that the appropriation negatively alters the original “meaning” of the work to the extent that it reflects negatively on the artist himself.

On the one hand, it seems like a difficult argument to make that VARA can protect any artist’s originally-intended meaning in any work; and this seems especially tricky with “Charging Bull.” Once a work is placed into public view, the artist no longer gets to decide how it is perceived; and as indicated above, I think any reasonable person who first encounters “Charging Bull” will make the same assumption I always have—that it is very much a celebration of unbridled capitalism.

If this were not the case, “Fearless Girl” would probably never have been conceived as either “pure” art or advertisement.  SSGA, artist Kristen Visbal, and McCann are all clearly relying on a general interpretation of “Charging Bull” as a symbol of aggressive capitalism in order to provide a context for “Fearless Girl” to be saying anything at all. And it seems clear from public response that this is the context in which “Fearless Girl” has been interpreted.

On the other hand, DiModica’s reputation is linked to how people perceive “Charging Bull,” and it would be tough to argue that “Fearless Girl” is not at least a bit of a fuck-you as well as an ad for a corporation.  But, commercial or not, is the work truly a gesture at the meaning DiModica originally intended, or is it a gesture contemporaneous with evolving feelings about capitalism and the role of women in the market?  I would argue that it’s the latter and that any artist who puts a sculpture into a public space cannot hope to control how that sculpture may be viewed against the backdrop of history.

Still, if another corporation were to make a more outlandish alteration of the bull for commercial purposes—like a steakhouse chain paints the classic cuts of meat outlines on the bull’s bronze skin and photographs it—that would certainly seem to be actionable under both traditional copyright infringement and VARA statutes. Not to mention city ordinances prohibiting vandalism.

As Fallis points out, DiModica could take his bull and go home; it is his physical property as well as his intellectual property.  This would leave “Fearless Girl” standing up to the southern tip of Manhattan for no apparent reason, although the fun part of that hypothetical scenario is that viewers would begin to apply new and various meanings to the work as a stand-alone piece.  So, in this regard, “Fearless Girl” is not purely a work of appropriation.

For all the fuss, there is at least a whiff of (yep) bullshit about the fact that “Fearless Girl” is defiantly marketing a product for a giant investment firm. Of course, advertising can be art and vice versa, especially in America; and one could make an argument that, for better or worse, this blend of culture and commerce is part of the same spirit DiModica was tapping into with “Charging Bull.” I can certainly sympathize with the artist’s feelings even while I am dubious about his legal standing under VARA.  Moreover, it turns out that I had a lot to say about a story that didn’t initially grab my attention.  Context changes everything.

Copyright is Not About Defending Old Models

old models

Pretty much since Napster (1999), tech pundits have been presumptuously lecturing pro-copyright creators about economist Joseph Schumpeter’s principle of “creative destruction.”  This is the observation that the market will naturally produce innovations which will displace existing products or services, often rendering the older models obsolete.  Take Schumpeter, add hubris and piles of money, and you get the “disrupt everything” culture of Silicon Valley—one that is so arrogant that it treats anyone who won’t join the disrupt rodeo as a Luddite and a fool.

Typically, anti-copyright pundits like to repeat the buggy whip cliché, claiming that the individuals and institutions who defend copyright are “clinging to the buggy whip industry while automobiles wiz by them on the highway.”  It’s an effective talking point if nobody’s paying much attention.  And since the internet itself hasn’t exactly helped in the paying attention department, the buggy whip analogy became an even easier pitch with the arrival of social media and the 140-character debate.

It’s a message that even many creators and artists bought up to a point; but the misdirection in the analogy distracts many observers from noticing the false comparison being made.  Because if we stick with the metaphor, then it is accurate to say that copyright advocates do not argue the cause of buggy whips in a world of automobiles; they merely assert that transportation is still in demand, regardless of how people and goods are to be conveyed.

The hidden truth in this faux-Schumpeter exercise is the fact that nothing has actually displaced consumer desire for creative works. We still want movies, books, TV shows, music, etc.  What has changed—and only for a segment of the market—is the means of conveyance for these products. The copyright proponent doesn’t really care whether the CD or vinyl album remains relevant—only that music itself is still in demand.  The principle of creative destruction doesn’t even belong in this conversation (though one could argue that a destructive form of creative thinking is at play.)

Apropos of my recent post When Copyright Criticism is Something Else, it is easy to confuse the subject of intellectual property rights with the efforts of an industry or business to “cling” to market share tied to a fading product. That some record labels sought to squeeze every dollar out of CD sales before their obsolescence is to be expected, but this has little to do with the principle that copyright should continue to protect the makers of music—and should be revised wherever it is failing to do so.  Even the mistakes made by the recording industry, through its stumbling adaptation to the internet, should be viewed as separate from a broad defense of copyright’s purpose.

The buggy whip analogy, in this context, is a lie.  And what’s most galling about this particular lie is that it is still aggressively evangelized by the one industry best suited to exacerbate the non-competitive trends that have shaped (or mutated) the American economy since at least the 1980s. The internet industry promises Schumpeter-like results—a vow to repeal and replace, if you will—for authors of creative works, if they are willing to abandon traditional notions of a property interest in their work. Not only has this proven to be a con in the world of creative arts, but the industry’s influence, even among tech entrepreneurs, hardly makes a compelling case for fostering competition and innovation.

A recent article in The Economist reports on a summit held at the University of Chicago, where academics have begun to rethink the state of competition in the American market resulting from the trend away from regulatory influence that began nearly 50 years ago. “Those that make a high return on capital can sustain their returns for longer, suggesting that less creative destruction is taking place. The number of new, tiny firms being born is at its lowest level since the 1970s,” the article states.  A little later, the article says the following about Big Tech:

“An analysis by The Economist in 2016 suggested that about half the pool of abnormally high profits is being earned by tech firms. The big five platform companies—Alphabet, Amazon, Apple, Facebook and Microsoft—earned $93bn last year and have high market shares, for instance in search and advertising. They are innovative but sometimes behave badly. They have bought 519 firms, often embryonic rivals, in the past decade, and may stifle them. The data they gather can lock customers into their products. They may also allow firms to exert their market power “vertically” up and down the supply chain—think of Amazon using information on what consumers buy to dominate the logistics business. Investors’ sky-high valuations for the platform firms suggest they will, in aggregate, roughly triple in size.” [Emphasis added]

The internet industry presents its products and services—and frankly its ideology—as the antidote to decades of competition-killing in the market; and a big bullet point in this message is that a legal framework like copyright is an obsolete barrier stifling your potential. It’s an economic fairy tale meant to imply that if it weren’t for copyright being wielded by big corporations, you would have an easier time becoming the next YouTube star or killer-app developer. If that sounds like an exaggeration, I’ll remind readers of the time Julie Samuels of the EFF said in context to the “future of copyright” (2013) that “We want a thousand more YouTubes.”  I’m not repeating this silly declaration to pick on Samuels per se, but to highlight the fact that copyright advocates are frequently accused of standing in the way of absurd projections dressed up as legitimate market potential.

It is a political tactic—not a serious economic discussion—to predict an impossible outcome and then blame a group or a particular legal regime for preventing that outcome.  And I am intrigued by the extent to which so-called progressives fall for this narrative given how similar it is to the false argument that “all regulation is a barrier to jobs and prosperity.”  There seems to be a blind spot to the reality that the industry, which insists that copyrights are stifling opportunity in the digital age, comprises the companies with some of the worst track records for fostering any innovation they do not own.

It would be wrong not to include global media conglomerates (i.e. major copyright holders) in the universe of entrenched corporations that have benefitted from this trend of consolidation.  No question they have–even to the extent of self-parody as when Tina Fey’s series 30 Rock (2006-2012) consistently lampooned the relationship between product giant GE, its network NBC, and the late-night comedy show Fey’s character writes. But the deregulatory policies, dating back at least a half-century, which have resulted in some of the ill-effects of mega-mergers and massive consolidation, cannot be blamed on copyright law, even if copyright plays a small role in that larger narrative.

For individuals—especially artists and creators—to abdicate copyright in response to  corporate domination is as irrational as giving up the right of free speech because we don’t like the SCOTUS ruling in Citizens United.  Copyright is one of many policy areas in which we must decide either to continue tweaking the system or to abandon the underlying principles altogether.  By inappropriately invoking Schumpeter in this debate, the internet industry seeks to disguise the fact that it has roughly the same attitude toward copyright’s protection of creators as the extraction industries have to environmental law’s protection of the biosphere.  Perhaps it’s time for copyright skeptics to recognize that the most outdated aspect of this whole conversation is their stupid buggy whip analogy.

Photo by DelmasLehman