Tag: independent creators

To Support Diversity, Independent Creators Should Not Give Up on Copyright

On Monday, the U.S. Chamber of Commerce’s Global Innovation and Policy Center (GPIC), in collaboration with Copyright Alliance, hosted a panel and roundtable discussion entitled A Conversation on Diversity and Inclusion in Copyright. The main topics discussed were the importance of fostering diversity among creators and creative works as well as a desire to see more diversity among the attorneys and other professionals specializing in copyright law and policy. In addition to the two panel discussions on those themes, video statements were submitted by creators working in music, film, and visual arts, and each described copyright protection as essential to their creative careers. (See participants list below.)

During the roundtable segment, I asked what might be improved about the copyright system to better support diversity in creative production. Rachel Kim of Copyright Alliance and Karyn A. Temple, former acting Register of Copyrights, now General Counsel at MPA, noted the goal to make registration easier at the Copyright Office because, of course, registration is necessary to fully enforce copyrights for U.S. authors. Temple added that the copyright small claims board, which will begin operating in the Spring of 2022, should help make copyright enforcement more accessible to a greater number of independent creators.

There is no question that, in addition to institutional changes within media companies or law firms etc., one of the best ways to foster diversity in creative careers is to inspire independent authors to participate in the copyright system in the first place. Because unfortunately, most do not.

A core principle of copyright law is that it is fundamentally egalitarian—a bundle of rights vested in any individual, from anywhere, who creates works of expression and makes those works available to the public. But the practical barriers to enforcing those rights, especially in contrast to the ease of infringement in the digital age, has been catalytic in discouraging entrepreneurial creators to the point of perhaps believing the narrative that “copyright is exclusively for big corporations.”

That theme, amplified by vocal copyright critics over the last twenty or so years, has played a role in discouraging the individual author about the value of his own rights. The message that the internet “bypasses the gatekeepers,” was, in addition to being overstated, implicitly coextensive to the assertion that the individual’s copyrights are meaningless in contrast to “new” modes of reaching audiences and generating revenue. That internet platforms enable marginalized voices, including artists, to be heard is absolutely true, but the idea that this social benefit demands the price of abandoning one’s copyrights was, and is, untenable.

Nevertheless, the digital native whose development as creator happened to coincide with the “copyright wars” beginning in the 1990s, often has conflicting views about her own rights, which have been described by various critics as greedy, rent-seeking, obsolete, anti-speech, a barrier to her fans, etc. Thus, in addition to the systemic hurdles in copyright law for indie creators, there exist internal obstacles for some, who have been made to feel uncomfortable about asserting their legal rights. Add the dimension of race and a history of exploitative IP grabs to the mix, and the belief that copyright is solely for the already privileged may be an even greater impediment for the author who happens to be a person of color. Consequently, demoralization of the people who should be advocating for their copyright rights produces an ideological vacuum, which the anti-copyright crowd has filled with its own agenda.

Perhaps because I could read the names or see the faces of everyone participating in the roundtable via Zoom, it occurred to me that although the moderators and guests are correct that all corners of the copyright world have work to do when it comes to diversity and inclusion, the anti-copyright segment strikes me as remarkably homogenous in this regard. And, of course, when we turn to the principal beneficiaries of the anti-copyright agenda (i.e. Silicon Valley), the white-male curve bends almost ninety degrees vertical.

It is common enough to observe that most, if not all, anti-copyright ideas are hatched in the comfortable aeries of academia, where the authors of many unfounded theories neither experience, nor even understand, the challenges faced by most creative professionals. So, whether it is fair to describe the class of copyright antagonists as too White, it is certainly fair to call it a pastime of privilege to invent and promote policies that, in one way or another, would divest the author of some amount of agency in her copyrights.

So, to answer my own question, if I could choose one goal for the moment, it would be to convince as many independent creators as possible that their copyrights are not worthless, even if advocacy of those rights may be entangled with myriad conflicting views. Yes, there are practical obstacles to meaningful enforcement, some of which may only be addressable by legislation; but even that will be more likely attainable if the millions of entrepreneurial creators in the country refuse to abdicate their rights in a war of attrition. Because giving up is what the anti-copyright interests are counting on copyright owners to do, and that is certainly no way to support diversity and inclusion in creative works.

Photo by: Igor2006

A Conversation on Diversity and Inclusion in Copyright

Welcome & Program Overview

Rick Wade, Senior VP, Strategic Alliances & Outreach, U.S. Chamber of Commerce

Terrica Carrington, VP, Legal Policy & Copyright Counsel, Copyright Alliance

Keynote Address

Representative Sharice Davids (D-KS)

Creator Video Appearance

Ebonie Smith, Music Producer, Audio Engineer at Atlantic Records; and Steering Committee Member of the Recording Academy’s Producers and Engineers Wing

Panel: Copyright Empowering Underrepresented Creators

  • Grace Wu, Executive VP, Entertainment Casting, NBCUniversal 
  • Moderated by: Rachel Kim, Copyright Counsel, Copyright Alliance

Creator Video Appearance

Yanique DaCosta, Graphic Designer and Fine Art Painter

Creator Video Appearance

Valerie Red-Horse Mohl, CEO/Founder of Red-Horse Native Productions

Panel: Careers in Copyright Empowering Underrepresented Communities  

Creator Video Appearance

Patrick “Guitar Boy” Hayes

Roundtable Discussion

Facilitated by Latricia Boone, VP, Equality of Opportunity Initiative, U.S. Chamber of Commerce

Closing Remarks

Mei-lan Stark, Executive VP & Chief Counsel, Intellectual Property, NBCUniversal

SAS v. WPL Litigation is of Great Importance to the Smallest Creators

Software companies SAS Institute of the U.S. and World Programming, Ltd. (WPL) of the UK have been litigants for more than a decade. By all accounts, WPL presents as a bad actor which lazily cloned SAS’s world-class analytics software. But before weighing the facts necessary to consider claims of IP infringement, the Federal Circuit Court of Appeals must first overturn the errors of copyright law applied by a Texas District Court, lest those holdings further weaken the already tentative position of independent rightsholders.

Presumption of Validity

I’ve spent a lot of time recently talking about formalities in U.S. copyright law (particularly with regard to the Unicolors and Valancourt cases), and it is recognized by those who care about indie creators that certain mechanisms in our copyright system already disadvantage entrepreneurial rightsholders. The individual or small-business creator can hardly be blamed for smirking at the fact that copyright attaches automatically to a work upon fixation, when that statutory provision barely vests her with any real power to enforce her rights. Enter the inducement to register.

The primary incentive to timely registration of works with the Copyright Office is that it allows the copyright owner to obtain statutory damages and legal fees upon successful litigation of an infringement claim. But another essential inducement to registration is the “presumption of validity,” meaning that a court will presume at the outset that the work at issue is properly a subject of copyright protection based solely on its having been issued a valid registration by the Copyright Office.

The reason the presumption of validity is critical, and decades-long precedent, is that it correctly places the burden on the defendant to prove a lack of copyright in the work(s) used, if non-copyrightability is to be presented as a defense. The district court in SAS reversed this principle, placing the burden on the plaintiff to prove copyrightability of register works at trial, and then aggravated this error by engaging in an extraordinary copyrightability analysis of its own design it named a “Copyrightability Hearing.”

Not only was the hearing itself an attempt to plough new ground by this court, but its analysis was improper, citing certain features of the work (e.g. open source), which do not inherently raise copyrightability questions, and then arrived at the untenable logic that the protection of a whole work may be undermined simply because it contains unprotectable elements.

Undermining Copyrightability Itself

As noted in my first post about this case, arguably all works contain unprotectable and protectable elements, and I cited the motion picture as a highly complex combination of such elements which are assembled to compose the finished movie. Among the copyright registrations made for the project will be the motion picture as a single unit, comprising its many parts—protectable original, protectable sublicensed, and unprotectable common elements—under a single title.

Imagine the cost and time if the owner of the motion picture were required to re-prove at trial the copyrightability of the entire film through analysis of the various components and then prove that the arrangement and use of those components is sufficiently original for copyright to attach in the first place. And that’s before proceeding to trial of an infringement claim.

Now, imagine that burden is borne by the independent illustrator, photographer, writer, or music composer, if this district court’s abrogation of the “presumption of validity” were allowed to stand. “The plaintiff would face the insurmountable task of proving a negative—that all of his work is not in the public domain or not an idea,” states the amicus brief filed by Copyright Alliance.

The opportunities for independent creators to enforce their copyrights are already hamstrung by the authors’ limited resources and our overly bureaucratic system. As a result, the overwhelming majority of American creators of works do not participate in the U.S. copyright system. And that is presumably what the copyright detractors want to see.

It is no surprise that those who scorn the existence of copyrights—either because weak protection is in their financial interest or because they are disciples of the Tao of Lessig—have endorsed the district court’s findings in SAS. Because if one hopes to further erode the rights of individual creators, or, perhaps, even industrial creators, enshrining this court’s rulings as precedent would be a very effective means to achieve that end.

Courts outside the Second and Ninth Circuits can be unpredictable when it comes to copyright law; but here, the Texas district court’s novel approach might fairly be described as eccentric, if not downright misguided. For the sake of creators much smaller and more vulnerable than SAS, the Federal Circuit must reverse that court’s multi-faceted errors of law before this case can proceed to the merits of the actual claim.

Fight for the Future Doesn’t Speak for Artists (or anyone else)

Fight for the Future recently launched a new campaign website called End Creative Monopolies, and among its many vague declarations, the petition asks signatories to “demand the dissolution of the current US copyright system and a fundamental reimagining of artists’ rights and protections for the 21st century that shifts power away from creative monopolies and puts the interests of artists and the public first.”

This is a common, if irrational, refrain. The underlying syllogism declares that corporate media producers and/or legacy copyright owners are wealthy and powerful (generally true). It then claims that independent creators are struggling and powerless (also frequently true). But the conclusion that the copyright system only serves the former at the expense of the latter does not follow as a generalization at all. The story about copyright and independents is a complex conversation about specific aspects of the law—judicial, statutory, and administrative—which FFTF is neither qualified nor willing to have in any way helpful to creators.

Meanwhile, you know who actually does care about helping indie artists make the most of the copyright system? Copyright advocates.

The people who are experts in the law and also believe in maintaining its fundamental principles are consistently talking about how to make the system work better for small creators. In fact, I don’t know a single pro-copyright authority (and I know quite a few) who does not think the system could use some tinkering in a few places to better serve individual authors. But tinkering. Not dissolution of the whole system and starting with a blank slate as FFTF decrees in its new campaign. Here are just a few recent examples off the top of my head:

Terrica Carrington, VP Legal Policy and Copyright Counsel at Copyright Alliance, recently blogged about the intersection of copyright and cultural misappropriation of choreography, explaining what the #blacktiktokstrike is all about. “Cultural misappropriation is an ethical concern that is not always rooted in the law,” writes Carrington, “but in some instances, these ethical concerns overlap with the law in such a way that makes the offense not only morally wrong, but illegal. That is the situation Black creators on TikTok are being confronted with: misappropriation of culturally relevant dances that may also be copyright infringement.”

The American Music Fairness Act is backed by copyright advocates great and small because this legislation finally proposes to overturn the status quo whereby U.S. terrestrial radio broadcasters have been exempted from royalty payments to musical artists. This law directly mandates that a very big industry finally pay fair rates to individual creators, which is just one reason my friend Blake Morgan (an archetypal indie artist) was standing on Capitol Hill the day lawmakers announced the bill this past June 24th. Did FFTF back this bill? Nah.

Steven Tepp, copyright consultant and former senior counsel at the Copyright Office, recently spoke with me on the IOM podcast about some of the formalities in copyright registration and enforcement that, with even modest changes, could make copyright work better for the independent author. For example, Tepp specifically recommends making the designation “published” optional on registration applications because the uncertainty in the law as to the meaning of “published” puts small creators at a disadvantage when it comes to enforcing their rights. I know that’s wonky and arcane, but that’s what actual, sober policy reform looks like.

Prof. Lateef Mtima, founder and director of the Institute for Intellectual Property and Social Justice, spoke extensively on the IOM podcast about how essential it is to not throw out the IP baby with the bathwater. “One of the problems with some of those perspectives,” Mtima said, “is that it basically accepts a premise that the system can only be utilized for social evil and corporate benefit. As I said in the beginning [of the podcast], I fundamentally don’t think that way, but as a practical matter, that’s not particularly helpful.”

Copyright Alliance, whose key members include several of the big media companies FFTF is complaining about, has filed pro-copyright amicus briefs in cases that have major implications for small creators. Allen v. Cooper, Unicolors v. H&M, Canada Hockey LLC v. Texas A&M University, Brammer v. ViolentHues Productions, Fourth Estate v. Wall-Street.com, VHT v. Zillow, to name a few.

Oh, and what was that law that passed at the end of 2020 that FFTF and its sister organizations tried so hard to kill? The Copyright Alternative in Small-Claim Enforcement (CASE) Act? Arguably, this is the most significant amendment to U.S. copyright law ever written with the sole purpose of helping independent creators, and FFTF, EFF, PublicKnowledge, et al opposed it. And worse, they lied about CASE being a big media bill, which is absurd on its face because big media doesn’t need a small claim option.

Specifically, on the subject of music, the good folks at FFTF should be ashamed of themselves for citing Spotify as a predator that pays songwriters pennies. I mean Spotify is a predator that pays songwriters pennies, but where was FFTF when the songwriters started mentioning this problem about ten minutes after the platform launched in 2011?* I know! They were being founded. Coincidentally at the very same time the Internet Association was established, the anti-piracy bills SOPA/PIPA were being hammered by Silicon Valley, and Google increased its lobbying expenditures from negligible to the top five. One might almost get the idea that FFTF was forged in a crucible of tech money for the purpose of weakening copyright law.

With Friends Like FFTF?

Independent artists already know the difficulties when it comes to protecting their work and enforcing their rights. I interact with some of these creators almost every day. And not once have I seen a writer, musician, photographer, etc. say, “Wow, I’m struggling because Disney is too big.” Why they usually say is, “Some clown just posted my work on his website or used it in his commercial or in a YouTube video, etc. without permission.” Or quite commonly, “A foreign counterfeiter is selling my stuff on Amazon or eBay.” These are the kind of problems copyright advocates discuss all the time.

Policy changes are hard. Look how long it takes to get infrastructure legislation passed when everybody mostly agrees! Fight for the Future has a lot of nerve declaring that a system as complex as copyright law is “broken” just because they say it is and then presuming to declare that we must scrap it and “reimagine” the whole thing for the 21st century. What this really means is that they want to reimagine some of your money into their donation coffers while they spin tales about agendas they are never going to achieve. And neither should they.

*Not surprisingly, yesterday’s Bloomberg Law story about renegotiating streaming royalties never mentions Fight for the Future. Just the usual pro-copyright advocates and experts navigating this difficult path between tech giants and the copyright law.