Emma Donoghue‘s novel “Room,” and subsequent movie of the same name, is allegedly inspired by real-life criminal Josef Fritzl, who imprisoned and raped his daughter, Elisabeth Fritzl, for twenty-four years. The novel and movie feature Ma and her son Jack as prisoners of Old Nick–Ma’s kidnapper and rapist. When Jack turns five, Ma executes a successful escape plan.

A 2010 article written by Sarah Crown, and published on The Guardian’s website, quotes Donoghue as saying her book was not based on the Fritzl case but, rather, “triggered” by it. Similarly to Ma, Elisabeth Fritzl was imprisoned, raped, and impregnated. The major differences include:

• Fritzl’s captor and rapist was her father.
• Fritzl was imprisoned for 24 years.
• Fritzl’s prison was in her home’s cellar–Ma’s prison was in a garden shed.
• Fritzl had multiple children in her prison while Ma raised one child.

People accused Donoghue of taking advantage of the shocking case for self-gain in the form of a book deal. Donoghue states she did not intend this and views the book, partly, as a reflection on the complexities of parenthood.

Since the trial, Elisabeth Fritzl and her family withdrew from society, adopted new identities, and began “anonymous” lives. So, it’s hard to imagine she is glad that her story has regained notoriety with the film’s creation and award nominations.

But when “fiction” lives so close to reality, it’s not strange to wonder: did the film and the book need to purchase Elisabeth Fritzl’s life story rights? Seemingly not, as most courts recognize that there is a difference between retelling a true story and being inspired by one to create a work of fiction. There are significant differences between Donoghue’s stories and the real crimes, therefore it is not viewed as a true depiction of the Fritzl case.

While the use of Elisabeth Fritzl’s trauma as literary and cinematic inspiration may feel distasteful to some, Donoghue’s works do not use the crime’s details for shock factor, but rather as a way to explore how strength and family function. In fact, the most gripping part of Donoghue’s screenplay is the intelligence and resilience of major, and minor, female characters. For example, how a woman could endure a constant trauma for seven years and raise a son, without breaking down mentally is unimaginable even when it is performed in front of you. What motivated Ma to maintain a daily routine for Jack? Perhaps the love and sense of responsibility she had for her son surpassed the atrocities she endured. Or perhaps it was the hope she would one day see her mother and father again and return to her childhood home, which she describes to Jack in an attempt to explain the outside world to him.

Another extraordinary woman appears in the female police officer who responds to the 911 call when Jack escapes. While she only emerges in one scene, her ability is striking. She patiently questions Jack in an attempt to learn his story. While gentle in tone and manner with Jack, she does not back off from her questions when he refuses to speak. Instead she pushes him to give her all the information he can. The male officer, her partner, only gets in her way, telling her she won’t get anything out of the boy and to give him time. But she ignores the other officer and from Jack’s disjointed tale of escape is able to deduce the location of Jack’s prison and rescue Ma quickly. Her part may have been meant to move the plot along rather than to applaud women who excel at their jobs, but, still, her heroism is lasting.

Despite privacy concerns, the story of “Room” remains important. It’s important that two such heroic, female characters exist as recognitions of real, strong women and as role models for every person. And finally, it’s important that this story features women doing the saving rather than being saved.

Ruby Hutson-Ellenberg

Ruby Hutson-Ellenberg is a 2016 Hunter College graduate, where she majored in English with a concentration in Creative Writing. As a native New Yorker, Ruby loves going to the theater and writing plays, which have been particularly well received by her parents. Contact Ruby at staff@LawStreetMedia.com

The post The Real Woman in the “Room” appeared first on Law Street.

YouTube is a form of media that’s in many ways built on creativity–from reaction videos to remixes to fan tributes, YouTube is  home to many adaptions of other works. But whether or not those types of videos are legal has long been a hot topic of debate. YouTube itself is now getting involved and backing the principles of Fair Use, which protect adaptions, by offering legal and financial support to some content creators who have been targeted by particularly predatory takedown notices.

Fair Use is the legal doctrine that allows the use of copyrighted material in certain circumstances. As defined by YouTube it includes uses like criticism, commentary, educational purposes, or news reporting. YouTube also lays out other factors that usually go into deciding whether or not something can legally be deemed Fair Use–pointing out, for example, that the use of shorter clips tend to be decided as Fair Use more often than longer clips. Additionally YouTube explains how to determine if a use is “transformative,” usually a big sticking point for courts asked to decide Fair Use questions, stating:

Courts typically focus on whether the use is ‘transformative.’ That is, whether it adds new expression or meaning to the original, or whether it merely copies from the original. Commercial uses are less likely to be considered fair, though it’s possible to monetize a video and still take advantage of the fair use defense.

Despite the fact that this is all a fairly normal and accepted definition of Fair Use (although instances are usually decided on a case-by-case basis) some YouTube users are continually subject to copyright infringement claims under the Digital Millennium Copyright Act (DMCA). While that act was originally created to prevent piracy, it has been used in abusive fashion in some cases. The process for DCMA-based takedowns has become automated, making it harder for content creators who are affected to fight them.

So, YouTube has decided to pay some legal bills and offer legal support up to $1 million in instances where there are “clear fair uses which have been subject to DMCA takedowns.” For example, YouTube will provide support to the Ohio Chapter of Naral Pro-choice, a pro-choice advocacy organization. They were given takedown notices after using a clip of a committee meeting in a video criticizing local law makers in a video posted to YouTube. Another example of a type of video that YouTube will help to protect is a series made by Constantine Guiliotis, who debunks instances of UFO-sightings. While he uses others’ clips, he does so in a way that should be considered Fair Use.

YouTube explained its motivation for helping those who have been targeted by the takedown notices. YouTube’s Copyright Legal Director, Fred von Lohmann, stated: “we’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it.”

Fair Use certainly is a tricky gray area–and there are certainly many cases in which copyrights need to be protected and plagiarism and piracy run rampant. However, abusing the DMCA also isn’t the answer. By aiding those who deserve it, YouTube draws a fair line between potential abuse on both sides.

Read more: Fair Use: Is it Really Fair?

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post YouTube is Standing up to Copyright Bullies and Protecting Fair Use appeared first on Law Street.

America’s favorite (or least favorite, depending on who you ask) blonde is back in the headlines this week: Taylor Swift is being sued by musician Jessie Braham over the lyrics to her song “Shake it Off.” Even though neither the lyrics nor the melody of Braham’s song are identical to Swift’s song, he has launched a lawsuit worth $42 million, and has also demanded he receive writing credit on Swift’s song. Braham’s case seems less than credible and with the massive legal resources at her disposal, it is almost inevitable that Swift will never pay him a cent–yet Swift’s case is only the latest in a string of high profile intellectual property lawsuits involving pop stars.

Earlier this month, Jay-Z and Timbaland defeated a lawsuit brought against them by Osama Ahmed Fahmy, who claimed the duo’s song “Big Pimpin'” had infringed upon the copyright of his uncle Baligh Hamdi’s song “Khosara Khosara.” Timbaland had already paid $100,000 in 2001 to secure the usage of the flutes from Hamdi’s song as a sample for the track, but Fahmy argued that the rights to the sample were invalid. After testimony from both Jay-Z and Timbaland, the judge threw the case out. Fahmy’s lawyer announced plans to appeal the decision, but with the massive legal power behind the hip-hop duo, Fahmy is fighting an uphill battle.

Copyright lawsuits against singers and songwriters are nothing new–but what are the legal bases for these kinds of suits? Read on to learn about the history of copyrights in music and the current cases in play.

The Complexities of a Copyright Case

A copyright:

Protects a literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, or architectural work, or a sound recording, from being reproduced without the permision of the copyright owner…the author(s) may transfer the copyright to any other party if she(they) choose(s) to do so. Subject to certain limitations, the owner of a copyright has the sole right to authorize reproduction of the work, creation of a work derived from the work, distribution of copies of the work, or public performance or display of the work. This right lasts for the life of the author plus fifty years; or in the case of a copyright held by an entity, for seventy-five years.

Copyright law is well-defined and there is a substantial legal precedent in the U.S. that protects authors from losing the rights to their content. However, modern music relies heavily on multiple producers and record labels, instead of a single artist recording and copyrighting their work. Increasing the number of “authors” increases the complexity of the copyright and leaves more openings for copyright infringement suits in the future.

Music has also been transformed by the introduction of sampling–taking pieces from a pre-existing song and incorporating them into the melody of a new song. Sampling in modern American music was born in the 1970s, as hip hop DJs experimenting with multiple turntables mixed samples from older songs with newer hip hop records. The 1980s created a new variety of dance and pop music, and sampling spread quickly from the alternative world of hip hop into the mainstream. When so many hit songs are reliant on samples, it is difficult to discern where sampling ends and copyright infringement begins. Most artists pay for the rights to sample a given track, but there are many pieces that are considered part of the public domain or that are old enough that artists assume that the copyright has expired on them, making them fair game for an unlicensed sample. There is also a “50 second/5 second, 8 bar/1 bar” myth in the music industry that informs artists that if they use brief enough clips of another song, it does not technically count as a sample and they do not need to file for the privilege to use that song. In reality, the Sixth Circuit Court of Appeals ruled in 2004 that:

The use of a two-second sample was an infringement of the sound recording copyright. The court went further stating that when it came to sound recording there was no permissible minimum sanctioned under copyright law.

Major pop artists who have to promote albums and perform in the public eye should be less likely to commit copyright infringement. They are signed to major labels that have impressive legal departments, are surrounded by handlers who vet all of their songs and work with production teams that are familiar with the intricacies of copyright law.  Yet prominent members of the music world still violate copyright law, both on purpose and unintentionally. The “Blurred Lines” case of 2015, which resulted in Robin Thicke and Pharrell Williams paying $5.4 million in damages to Marvin Gaye’s family, represents the ambiguous nature of copyright law in pop music. Thicke and Williams did not directly sample Gaye’s hit “Got to Give it Up” but they claimed that they were “inspired” by Gaye’s work. It is not up to the legal system to police what inspires an artist, but that word can cover all manner of sins. Let’s examine the 1950s and 1960s as a case study of what happens when musicians are “inspired” by their contemporaries–and disregard copyright law on their way to the recording booth:

Copyright Conflict and Rock and Roll 

Copyright infringement is by no means a recent trend in the music world. In the 1950s, copyright law was hardly the organized mechanism that it is today and it was not applied to protect all races and genders equally. Well-publicized lawsuits regarding copyright infringement may seem like a recent development, but the theft of intellectual property has been thriving for decades in the music industry. One of the most infamous cases of plagiarism in American musical history involves black jazz and blues musicians of hte 1950s. Examine, for example, Chess Records, the Chicago-based record label that launched Muddy Waters, Chuck Berry, Etta James, Little Walter and Howlin’ Wolf. The artists signed to the Chess Records label were pioneers of blues and rock and roll, influencing countless musicians, including the Rolling Stones, who named their band after one of Muddy Waters’ original songs. Although Chess Records’ musicians were legends in their own time, they were often denied paychecks or paid significantly less than their white contemporaries. Furthermore, some musicians blatantly stole content from the Chess Records stable. Both Willie Dixon and Chuck Berry filed suit against multiple artists for stealing their melodies and lyrics–the most famous of these lawsuits was leveled against the Beach Boys for their unlicensed use of the melody from Berry’s “Sweet Little Sixteen” in their song “Surfin’ USA.”

Then there is the problematic nature of Elvis Presley’s success. It is obvious that Elvis was an incredible talent who shaped modern music, yet his success also relied greatly on black rock and roll music. The famous song “Hound Dog” was in fact originally recorded by “Big Mama” Thornton and Elvis’ version was intended to be a cover, yet history has painted his rendition as the original. Presley openly acknowledged that his music was inspired by black pioneers yet he has consistently received a far greater share of the credit for the rock and roll revolution than any of his black contemporaries. Elvis did not invent the style in which he sang and danced, he simply made it popular with white audiences. Elvis did not directly infringe upon the lyrics or melodies of other artists, but imagine if he was singing on stages across the country today. Would Thicke and William’s “inspiration” argument apply to his music or would he be taken to court? If music is a medium that incorporates the most exciting aspects of our predecessors’ lyrical and melodic abilities, their stage presence and public personas, where do we draw the line between a heartfelt tribute and plagiarism? These are still questions we struggle to answer today.

Modern Copyright Laws

Modern copyright legislation has expanded and adapted to protect authors regardless of race or record label.  Beginning in the 1990s, the Supreme Court and host of other appellate and circuit courts ruled on various intellectual property cases in the music industry, largely coming down on the side of the authors. In 2012, the introduction of SOPA and PIPA represented a conscious legislative shift towards protecting intellectual property in the Internet age. In 2015 alone, ten bills have been proposed to expand copyright holders’ privileges and protections. However, despite this extended legislative protection, authors may still struggle to receive damages in a lawsuit. The Blurred Lines case was exceptional because it is one of only a handful of music copyright infringement cases in the past decade in which significant damages were awarded to the defendant. The defendants (Marvin Gaye’s family) had access to a powerhouse of a legal team, but not every author has access to such representation. Without sufficient funds and skilled legal representatives, many authors may not be able to pursue a lengthy and bureaucratic court battle.

Conclusion

Copyright lawsuits are not a novel phenomenon in American music. While the spike in high-profile musical lawsuits in the past two years may suggest that litigation is becoming more popular in the music industry, it is less the lawsuits themselves that are garnering our attention than the artists. When major pop stars are put on trial for copyright infringement, the spotlight is thrown onto the complex and unpredictable nature of intellectual property law. However, that focus only stays on the issue for as long as the pop star takes the stand–the minute they are acquitted, we lose interest in their copyright compliance. Many cases of copyright infringement are flimsy or invalid, but it is important to treat them with respect.  Our favorite musicians may make us dance and cry and air guitar, but they don’t have the right to profit off of other’s hard work.

Resources

Betsy Rosenblatt: Copyright Basics

Thomas Kennedy: The History of Sampling

CNN: Haters gonna sue: Taylor Swift hit with copyright infringement lawsuit

Manatt Phelps and Philllips LLP: Blurred Lines-The Sequel: Post-Trial Rulings Edition

Time: Elvis Rocks. But He’s Not the First

The Atlantic: Getting Elvis’s Legacy Right

Michelle Fabio: 8 Basic Facts Every Musician Should Know About Copyright Law

USA Today: Jay Z Prevails in Major Copyright Case

Mita Carriman: 4 Music Law Myths That Indie Musicians Need To Unlearn

Stanford University Libraries: Copyright Law Changes that May Affect You

Jillian Sequeira

Jillian Sequeira was a member of the College of William and Mary Class of 2016, with a double major in Government and Italian. When she’s not blogging, she’s photographing graffiti around the world and worshiping at the altar of Elon Musk and all things Tesla. Contact Jillian at Staff@LawStreetMedia.com

The post Copyrights, Sampling and Rock ‘n’ Roll: Intellectual Property in the Music Industry appeared first on Law Street.

The “Happy Birthday” song has become a ubiquitous part of American life. But, it’s also a song that has a long history of legal copyright strife. However, thanks a recent ruling by a federal judge, the song has been set free–the “Happy Birthday” lyrics are no longer copyrighted, and will not require royalties to be paid for their use.

The history of the song is as long as it is complicated. It was written in Kentucky by two sisters, Mildred and Patty Hill, in 1893. The song has since evolved from the sisters’ original lyrics, but they’re credited with its inception. The song was copyrighted in 1935, by the Clayton F. Summy Co., which was succeeded by a company called the Birch Tree Group. Then, Warner/Chappell purchased the Birch Tree Group in 1988, inheriting the copyright to a song which at that point was almost a century old.

Warner/Chappell has collected royalties on the use of the song anytime it’s used “as part of a profit-making enterprise.” This can include TV shows, movies, or commercials. But Warner/Chappell has also gone after incidences that aren’t expressly for profit, like if a restaurant wants to sing the song while giving a customer a free birthday dessert. A desire to avoid paying those royalties inspired the often odd birthday traditions at many restaurants. George Washington University School of Law professor Robert Brauneis explained to ABC News:

If you want to sing it at your home at a birthday party you don’t have to pay anything, because that is a private performance. But if you want to use it in a television show, a movie, or a television commercial, you’ll pay anywhere from $5,000 to $30,000 for those rights.

It’s estimated that Warner/Chappell has collected approximately $2 million in royalties each year from the “Happy Birthday” song.

But, according to U.S. District Judge George H. King, who ruled in a case brought by filmmakers challenging Warner/Chappell’s claim to the song, that copyright claim doesn’t hold. According to King, the issue with Warner/Chappell’s copyright is that there’s no evidence that Summy Co. ever had a legal copyright on the lyrics in the first place. King wrote:

Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics.

So, the issue isn’t completely decided–there will probably be appeals. But for now, “Happy Birthday” appears to be, quite happily, in the public domain.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Sing Away: Judge Rules “Happy Birthday” Lyrics No Longer Copyrighted appeared first on Law Street.

We live in a world where fan communities–fandoms–are becoming increasingly popular. Fandoms fixate on a particular television show, band, movie, musical, anime, or other pop culture subject. Creation of content based on these fandoms has also become ubiquitous. People of all ages gather together on any number of fanfiction websites, ranging from social media sites that post stories and art, like Tumblr and Live Journal, to websites designed for fanfiction, like Fanfiction.net and Archive of Our Own. Some fandoms have even developed websites devoted entirely to fanfiction for a particular couple or desired couple, known to many as a “ship.”

When using characters and worlds created by other people, however, there are quite a few potential copyright issues. Fan creations have become so popular that some fandoms are even branching out and making money from their fanfiction and fan art roots. Yet getting the “rights” to your own work is a nightmare when you’ve used a couple from your favorite television show. Though some fandoms have successfully made the switch from unoriginal characters to new creations, many struggle with it.

Fanfiction and fan art are always going to be a part of fandom communities because they bring people together in a way so few things really can. These fandoms have created large communities all over the internet. “Harry Potter,” for instance, is still hugely popular in the fanfiction world, even though J. K. Rowling and Warner Brothers have successfully fought against fan creations.

What exactly are your rights when you take to your computer and write or draw that missing scene from “Once Upon a Time?”

The Official Word

According to a University of San Francisco law blog, fanfiction “can be considered a copyright violation under the Copyright Act of 1976, ” because the holder of the copyright has the right to distribute any derivative works based on an original creation. This often includes sequels, prequels, and art work.

One of the most famous cases of a fan-fiction author is that of J. D. California who penned a sequel to J. D. Salinger’s “Catcher in the Rye” and called it “60 Years Later: Coming through the Rye.” During this case, it was found that characters were granted copyright protection–in this case, Holden Caulfield, an iconic character in Salinger’s novel.

Many would argue that fair use may actually protect fan creations like artwork and stories from being copyright infringement, but many authors have still successfully fought that claim. Legal challenges tend to come more from book authors than movie or television show creators for pretty pragmatic reasons–fandoms often boost the number of viewers for television shows.

So why are so many publishers now actively looking for fan-fiction authors? In part because these stories are sometimes better or more successful than the canonical source material. One cannot ignore the success of recent fanfiction-based novels like “50 Shades of Grey.” Rebecca E. Hoffman for Bloomberg describes how “50 Shades” got around the fan-fiction ties:

But before they became ‘real’ books, they were a Twilight fan fiction series called ‘Master of the Universe.’ ‘MotU’ appeared on fanfiction.net and–with Twilight references removed and character names changed–was later published as three e-books by an Australian company that specializes in fan fiction publishing. Vintage Books, a subdivision of Random House, which ultimately published the Fifty Shades trilogy, maintains that the material is original and no longer based on ‘Twilight.’

According to a Washington Post interview with Jennifer Bersgtrom, Vice President and Publisher of Gallery Books, fanfiction is simply becoming a way to recruit talented authors. She stated, “fanfiction has absolutely become part of the fiber of what we publish. This is changing at a time when traditional publishing needs it most.”

Most fanfiction is safe if it doesn’t criticize or parody the works in question. Even so, the Internet and Intellectual Policy Clinic at the University of San Francisco points out that the only way a person would get in trouble is if the person who holds the copyright ever sees the work:

It is clear though that the law surrounding fanfiction is highly dependent on the copyright owner actually enforcing their rights and prosecuting offenders of their copyright. In cases such as J.K. Rowling in which she is choosing particular pieces of work to prosecute while letting other works that violate her copyright be published, the law clearly sides with her.

The Legal Dos and Don’ts of Fanfiction

The Don’ts

The biggest rule you need to know to avoid getting into copyright hot water is to determine who exactly owns what you are writing about. Some authors simply do not like fanfiction and are very open about that fact. Vulture says that “some authors–George R.R. Martin, Anne Rice, and Diana Gabaldon, author of the Outlander series, among them–protest [fanfiction’s] appropriation of their creations and ask fans to refrain from writing it.” They mostly target websites based on the stories, but have targeted large forums as well.

Some fanfiction creators also have some problems in that they don’t know where to draw the line. Typically there are concerns about RPF or Real Person Fanfiction. Celebrities like Chris Colfer of “Glee” and Taylor Swift have said that they find fanfiction and fan art uncomfortable, especially when it is explicit in nature. Swift has even gone so far as to get fan creations taken off of Etsy, though that may be more of a business decision.

Read More: Taylor Swift vs. Etsy Vendors: Singer Trademarks Song Phrases

It isn’t always easy, however, as every writer, designer, and artist has the right to make the choice for themselves where they want the line drawn and whether or not to take legal action. It is then up to the forum and fandom at large to enforce that line as they see fit, an important thing to remember when dealing with fanfiction and fan art.

Nonetheless, as Hugh Howey told Desert News National: “Just as there have been independent filmmakers [who] enrich the film industry, there are and will be independent authors who experiment and write groundbreaking works.”

The Dos

If you truly love a fictional couple, a storyline, or a show, you might still want to write fanfiction or create fan art, and there is truly nothing wrong with that. However, you should take note of a few rules to keep yourself out of the limelight and out of trouble.

1. Follow the rules of the online forum: Most forums that post fanfiction and/or fanart have been around for a long time for a reason: they know how to skirt the line. Look at the rules and FAQs of a website before you upload your latest “Shameless” story.
2. When in doubt, go for public domain: The Daily Beast points out that there is a lot of Jane Austen fanfiction. Why? Her works are all part of the public domain, meaning you can use the characters however you see fit. According to Teaching Copyright, public domain occurs “70 years after the death of author, or, for corporate works, anonymous works, or works for hire, 95 years from the date of publication or 120 years from the date of creation, whichever expires first.” If you are using something a little more modern, use a disclaimer, meaning make sure that you state clearly that you don’t “own” whatever you are writing about.
3. Take it down if you need to: Online musical theater troupe Team StarKid famously took down A Very Potter Musical when they feared that Warner Brothers would sue them. They re-posted the material after some severe edits and a disclaimer on the video–and then went on to make two more and were invited to the screening of the final movie. Most creators or agents will start with a mailing or a polite request, and you should probably grant it.

4. Don’t make money from it: This might seem like a no-brainer, but do not make money from your work if it’s based on someone else’s creations. Don’t sell your art or stories, do not get sponsors, and don’t use advertisements. You are saving yourself a load of potential headaches from the people who own the content.

Conclusion

In the end, the best thing to remember about fanfiction, fan art, and anything derived in any other universe is this: it is typically an infringement of the copyright holder. With that said, it is usually done with the best of intentions by fans and it often continues and strengthens the importance of the story being told.

When creating within a fandom, use your head to make decisions about what is appropriate and what isn’t appropriate and you likely won’t find yourself in trouble. It’s also important to note that if you are creative enough to take pre-existing characters and create new stories, you are probably creative enough to make your own original characters.

Resources

Primary

U.S. Copyright Office: Duration of Copyright

Additional

Bloomberg BNA: It’s Never Black or White: Is Fanfiction Fair Use?

Desert News National: With Fanfiction, is Publishing Following in Hollywood’s Unoriginal Footsteps?

Teaching Copyright:  Public Domain Frequently Asked Questions

Washington Post: From ‘Fifty Shades’ to ‘After’: Why publishers Want Fanfiction to Go Mainstream

University of San Francisco Law Blog: Fanfiction and Copyright Law

Vulture: Fanfiction Guide

CNN: Lawsuit Targets ‘Rip-Off’ of ‘Catcher in the Rye’

Daily Beast: Why Fanfiction is the Future of Publishing

Geeky News: Unauthorized Starkid Production Brings Wrath

The New York Times: Rowling Wins Lawsuit Against Potter Lexicon

Fox News: How Harry Potter Superfans Won a Battle for Fair-trade Chocolate

People: Fifty Shades of Grey and Nine More Examples of When Fanfiction Became Blockbusters

USA Today: Must-Read Fanfiction From ‘Doctor Who,’ ‘Star Trek,’ ‘Farscape’

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post Re-Writing the Classics: What Are Your Fanfiction Rights? appeared first on Law Street.

The United States Court of Appeals for the Second Circuit recently heard oral arguments about the long-fought Google Books case between Google and the Authors Guild.

This case has been trudging through the courts for nearly a decade. In 2005, the Authors Guild and the Association of American Publishers (AAP) separately sued Google on claims that it violated their respective copyrights on the Google Books database. Google claimed, however, that its database was a fair use.

The lawsuits were then consolidated, but AAP eventually settled out of court with Google. The Authors Guild continued its lawsuit against Google but later agreed to settle for $125 million. The Authors Guild and Google tried to amend their settlement, but the settlement was rejected.

Around this time, the Authors Guild filed a similar lawsuit against HathiTrust but lost on summary judgment.

Nevertheless, the Authors Guild/Google lawsuit carried on into federal court, but the Authors Guild met a similar fate as it did against HathiTrust and lost to Google via summary judgment last year.

According to Publishers Weekly, Google won its summary judgment motion partly because of its fair use argument. The court favored Google in three out of the four fair use factors. The four fair use factors are 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion taken; and 4) the effect of the use on the potential market. Google won on the first, second, and fourth factors because its scanning was a transformative use, 93 percent of the scanned works were nonfiction, and Google didn’t sell the books it scanned although it benefited financially from the web traffic caused by Google Books.

The Authors Guild then appealed to the Second Circuit.

Oral Argument

Andrew Albanese writes that the Authors Guild tried to differentiate the Google Books lawsuit from the HathiTrust lawsuit by arguing that Google Books was a commercial use, but the Second Circuit shot that argument down. Judge Pierre Leval said that transformative use was what mattered the most–the first factor. The Authors Guild also argued that Google should not be allowed to profit from its database of unlicensed works, and that Google Books differed from HathiTrust because Google Books offered snippets of the works, whereas HathiTrust did not display the works made available via searching.

Google argued for fair use and asserted that Google Books progressed the arts and sciences. Moreover, Google argued that Google Books created no market harm. Although users flock to Google because of Google Books, Google Books serves an educational purpose.

The Second Circuit did not mention when it would render a decision.

Analysis

Considering the court dismissed the Authors’ Guild argument that Google and HathiTrust could be distinguished via the first fair use factor, the Authors Guild has a tough challenge in attempting to reverse the district court’s decision in favor of Google. I have not listened to the oral argument, but by reading Albanese’s aforementioned article, it does not look good for the Authors Guild.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Second Circuit Hears Oral Arguments in Google Books Case appeared first on Law Street.

On Tuesday, a New York federal district court ruled that TVEyes’ use of Fox News’ video clips is a fair use according to the federal Copyright Act.

Who is TVEyes?

You may not have heard of TVEyes, Inc. before, but you’ve probably heard of some of its subscribers: the White House, 100 members of Congress, the United States Army, MSNBC, ABC, CBS, and the Associated Press.

So your two next questions may logically be: 1) who is TVEyes? and 2) why do portions of the federal government and the country’s major media outlets care about it? The answer is that TVEyes is a for-profit 24/7 media-monitoring service that monitors and records more than 1,400 television and radio broadcasts and transforms the broadcasts into searchable databases. The searchable databases allow TVEyes’ subscribers,like the White House, to see how different television and radio stations from across the country are reporting a particular event.

How Does TVEyes Work?

You may also be wondering how TVEyes is able to record thousands of broadcasts at once, and how subscribers are able to use its database.  According to a New York federal court opinion published on Tuesday, September 9, TVEyes uses closed captioning and speech-to-text technology to record television and radio broadcasts, and then the company creates a database of the recorded content.  Subscribers log onto a Watch List Page, which monitors keywords, tabulates the total number of times a keyword was mentioned by all 1,400 television and radio broadcasts, and organizes keyword search results by day for a 32-day period. From the Watch List Page, subscribers can click on the Results List Page, which shows the number of times a keyword was used on a particular day.  Each result on the Results List Page contains transcripts of the television and radio broadcasts that mention the keyword as well as thumbnail images of that television or radio broadcast that said the keyword. The subscriber can then click the thumbnail image, and a video clip of the broadcast will play alongside a transcript on the Transcript Page, which contains a wealth of information such as the name and location of the broadcast channel, Nielsen Ratings data about the clip, and the publicity value of the clip.

TVEyes also provides the following notable features and pages:

• A Media Stats page that graphically illustrates the number of times a keyword has been used over a period of time;
• A Marketshare page that contains a “heatmap” indicating the geographical locations that use the keyword the most;
• A Broadcast Network page which depicts in a pie chart the breakdown of which broadcast stations use the keyword;
• A Date and Time Search that lets subscribers play a video clip that aired on a specific date and time on a specific television station; and,
• A Media Snapshot featurethat allows subscribers to watch live streams of everything that TVEyes records.

Moreover, subscribers can save, archive, edit, and download an unlimited number of clips, and email clips to anyone, regardless if he or she is a TVEyes subscriber. Once a recipient clicks on the e-mailed clip, he or she is directed to TVEyes’ website and not the content owner’s website (i.e., Fox News’ website).

Copyright Infringement Lawsuit

Fox News sued TVEyes because it believed that TVEyes would divert its viewers to TVEyes’ website. Fox News claimed that TVEyes committed copyright infringement because TVEyes used Fox’ News copyrighted video clips to create content on TVEyes’ website, which its subscribers can play, save, edit, archive, download, and share. Specifically, Fox News alleged that TVEyes copied and infringed 19 one-hour programs on the Fox News Channel and the Fox Business Network, such as two episodes of On the Record with Greta Van Susteren, three episodes of Special Report with Bret Baier, three episodes of The Five, four episodes of The O’Reilly Factor, two episodes of The Fox Report with Shepard Smith, four episodes of Hannity, and one episode of Special Report Investigates: Death & Deceit in Benghazi.

Fair Use Defense

Whenever a plaintiff sues a defendant for copyright infringement, the defendant has certain defenses in the arsenal.  One of those defenses is fair use, which is a doctrine that allows the public to use a copyrighted work without an author’s permission in certain situations.  In this case, TVEyes argued that the features on its database constituted fair use.

The fair use statute, which is listed under 17 U.S.C. 107 in the federal Copyright Act, says that if a defendant uses a copyrighted work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research, there is a strong presumption that the defendant’s use of the work is fair use.  Nevertheless, a court must consider the four factors listed therein:

1. The purpose and character of the work.
2. The nature of the work;.
3. The amount and substantiality of the copyrighted work that the defendant used.
4. The effect the defendant’s use has on the potential market or value of the copyrighted work.

Each factor, however, must be viewed in isolation, and the court uses a balancing test.  No one factor brings about a resolution. Let’s see how the court analyzed the four factors.

Factor 1:  The Purpose and Character of the Work

The court noted that the main reason for looking at the purpose and character of a defendant’s work is to see if it adds something new to the original copyrighted work and is not merely a substitute for the original work. The court’s investigation of whether a work adds something new is referred to as “transformative” use. TVEyes argued that its features providing subscribers with Fox News’ video clips is transformative, but Fox News argued that TVEyes’ copying and disseminating of its copyrighted excerpts, circulations, and summaries is not fair use.

The court held that TVEyes’ features that provide its subscribers with Fox News’ video clips was transformative because the database converted Fox’s copyrighted works into a research tool. Moreover, TVEyes’ subscribers use TVEyes for research, criticism, and comment. Finally, although TVEyes is a for-profit company, and commercialism can sometimes weigh against a finding of fair use, the more transformative a work is, the less significance is placed on commercialism.  Since TVEyes’ work was transformative, factor one favored TV Eyes.

Factor 2:  The Nature of the Work

This factor considers the nature of the copyrighted work because some types of work are closer to the kinds of works that copyright law intends to protect. For example, the type of work at issue in this case (i.e., the news) is not copyrightable because the news contains facts. Facts are not copyrightable because society wants everyone to be able to freely disseminate facts in order to find the truth; however, the creativity in deciding how to portray, film, direct, sequence, communicate the news is copyrightable

Nevertheless, courts may favor fair use for a work that is factual or informational.  Wwhere the work is transformative, however, the second factor has limited value.  Thus, the court said that the second factor does not weigh for or against a finding of fair use in this case.

Factor 3:  The Amount and Substantiality of the Copyrighted Work the Defendant Used

TVEyes concedes that it copied all of Fox News’ content. This factor, however, does not just employ a quantative comparison between the original copyrighted work and the defendant’s work, it also asks whether the defendant copied no more than was necessary for any valid purpose stated in the first factor (i.e., transformative use). Since TVEyes’ business model depends on copying all of Fox News’ content, the court said that TVEyes did not take more than what was necessary to obtain its transformative use; however, like the second factor, the court held that the third factor weighed neither for or against a finding of fair use.

Factor 4:  The Effect of the Defendant’s Use on the Potential Market or Value of the Copyrighted Work

This factor considers the economic injury that the defendant’s work causes and the benefit the public generates from use of the defendant’s work, if any.

• Economic Injury: This part of factor four determines whether the defendant’s use would have an adverse impact on the potential market of the original copyrighted work. Fox News argued that TVEyes’ services decreased its ratings of the 19 individual, hour-long programs it aired between October 2012 and July 2013, and thus diminished the amount of per-subscriber carriage fees that advertisers and cable and satellite providers paid Fox News because TVEyes’ subscribers watched TVEyes’ copies rather than the Fox News Channel or the Fox Business Network.

The court stated, however, that the 19 shows were no longer available for TVEyes’ subscribers, and TVEyes erases its content every 32 days.  Moreover, during the 32-day period in which these programs were available, only 560 video clips played, and 85 percent of those played were less than a minute long. In addition, between 2003-2014, only 5.6 percent of all TVEyes users saw any Fox News content on TVEyes.  In only three instances between March 2003 and December 2014 did TVEyes subscribers access 30 minutes or more of Fox News Channel’s content, and no subscriber accessed any Fox Business Network content. Furthermore, 95 percent of all video clips played on TVEyes are three minutes or shorter. Thus, the court said there was no basis that TVEyes’ subscribers would likely watch ten minute clips sequentially in order to use TVEyes as a substitute for Fox news.

Fox also argued that TVEyes impairs the derivative work market for syndiciation partners like YouTube and Fox News’ exclusive licensing agent, ITN Source and Executive Interviews.  However, Fox could not point out the alleged customers that Executive Interviews lost.  Moreover, Fox’s revenue from syndication partners and licensing clips is a small fraction of Fox News’ overall revenue (i.e., north of $212,000 and $246,000 respectively) and would likely be outweighed by the public’s benefit of using TVEyes’ services.

• Public Benefit: TVEyes argued that it provides a tremendous public benefit because it creates a library of television broadcast content and makes it easy and efficiently text-searchable. It also argued that without TVEyes there would be no way to search 27,000 hours of daily television broadcast programming, most of which isn’t available online or anywhere else.

Moreover, TVEyes argued that subscribers use its service to comment and criticize broadcast news; government bodies use it to assess factually-reported accuracies; political campaigns use it to monitor political advertisement and campaign appearances during elections; financial firms use it to monitor and archive employees’ public statements for regulatory compliance; the White House uses it to evaluate news and to provide the press with feedback; the United States Army uses it to track media coverage about worldwide military operations to ensure national security and troop safety; journalists use it to research, report, compare, and criticize broadcast news coverage; and elected officials use it to conform informational accuracies reported on the news and to correct misinformation.

Thus, after analyzing the economic injury and public benefit factors, the court held that factor four favored a finding of fair use because the public benefit of TVEyes outweighed its minimal possibility of competition to Fox News.

Balance of Four Factors

Since TVEyes captures and indexes broadcasts that would otherwise not be there — and journalists, the White House, the United States Army, financial firms, elected officials, and political campaigns use TVEyes for purposes like criticizing news, correcting misinformation, assessing commercial advertising, evaluating national security risks, and tracking financial regulatory compliance — the court held that copying Fox News’ content for indexing and clipping services for TVEyes’ subscribers was fair use.

Limited Fair Use

The court held that it did not have to decide fair use for the full extent of TVEyes’ services because no sufficient evidence was presented about whether features that allow TVEyes’ users to save, archive, download, email, and share clips of Fox news’ broadcast content were integral to the transformative purpose of indexing and providing Fox News clips or whether they threatened Fox News’ derivative businesses.  Moreover, neither party was entitled to summary judgment on whether the date and time search function because the record failed to show whether the date and time search function was integral to the transformative purpose of TV Eyes’ service. The court said the factual record regarding the date and time search function should be developed further.

What’s Next?

The court scheduled the next court date for October 3, 2014, which will determine the remaining issues stated about in the “Limited Fair Use” case. We will have to wait and see how the court handles those issues.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Fox News Suffers Major Fair Use Defeat to TVEyes appeared first on Law Street.

Early last month, the Seventh Circuit of Appeals held that the Sir Arthur Conan Doyle Estate must pay attorney’s fees to plaintiff, Leslie Klinger. The payment of attorney’s fees is the latest setback for the Conan Doyle Estate in its attempt to block the publication of Klinger’s two Sherlock Holmes anthologies without first obtaining a licensing fee. In mid-July, Justice Elana Kagan denied the Conan Doyle Estate’s stay (i.e., blocking the Seventh Circuit Court of Appeals ruling).

For the readers who don’t know the background preceding the lawsuit, let me summarize it for you: Klinger, who is a Sherlock Holmes scholar, co-edited two Sherlock Holmes anthologies, A Study in Sherlock and In the Company of Sherlock Holmes, which contained new and original short stories about Sherlock Holmes by contemporary authors. The Conan Doyle Estate claimed that Klinger needed to obtain a license from the Conan Doyle Estate to publish A Study in Sherlock with Random House and a second license to publish In the Company of Sherlock Holmes with Pegasus Books. Klinger believed he did not need a license to publish the anthologies because he believed the Holmes and Watson characters were in the public domain. Although Random House acquiesced and purchased a license, Pegasus Books refused to finalize its author agreement with Klinger if he did not seek a license. Thus, stuck without a book contract with Pegasus, Klinger sued the Conan Doyle Estate in 2013 and sought a declaratory judgment (i.e., a legal determination by a court about a particular uncertainty between the parties) on pre-1923 and post-1923 story elements in the Sherlock Holmes canon, including but not limited to, characters, character traits, dialogue, etc., in order to determine whether or not Klinger needed a license from the Conan Doyle Estate.

In December 2013, a federal district court in Illinois ruled in favor of Klinger by stating that he needed to obtain a license from the Conan Doyle Estate for post-1923 story elements but did not need a license for pre-1923 story elements. In June, the Seventh Circuit of Appeals affirmed the Illinois district court’s decision and stated that Klinger did not need to obtain a license for his anthologies because the Holmes and Watson characters were in the public domain.

Justice Kagan’s denial of the Conan Doyle Estate’s stay likely signifies that the lawsuit has finally come to a close. Klinger’s win is advantageous to book publishers because publishers likely do not need to obtain a license from the Conan Doyle Estate to publish anthologies or other literary works. Moreover, Klinger’s victory affects the movie and television industries, which seem to almost always have a Sherlock Holmes television show or motion picture airing or in post-production.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Sherlock Holmes: A Winner for Book Publishers appeared first on Law Street.

Various companies with recent intellectual property disputes are taking us back for a nostalgic look at our 90s childhoods. Chances are that at least once in your life you witnessed a jungle gym proposal involving the iconic Ring Pop.

Topps Co., the distributor of the Ring Pop, filed suit on August 21 in New York against the Ohio-based Primary Colors Design Corp. claiming trademark infringement. Topps asserts that three months ago Primary Colors revealed a product too similar to the Ring Pop at the National Confectioners Association’s Candy and Snack Show. According to Topps, Primary Colors showcased the Valentine Ring Lollipop — a sugary candy gem mounted on a plastic base in the design of a ring.

Topps requests a court order that would ban Primary Colors from producing and selling the candy item, in addition to financial damages.

It looks like there may only be room for one candy jeweler on the playground. But in case you weren’t the romantic type but more of a young businessman, you may have found yourself trading Pokémon cards in the sand box.

Courtesy of Kate Haskell via Flickr

Last week, Pokémon Co. International sent a cease and desist notice to Shapeways Inc. demanding it halt sales of its 3-D printed planter, which resembles the Pokémon character Bulbasaur. Although Shapeways did not officially label the planter as a Pokémon character, calling it a “succulent monster” instead, more than one reference to the Pokémon franchise was included in the listing.

After receiving the notice, Shapeways removed the listing from its website, but Pokémon International  is “asking for all the money associated with this model.”

So as children, after summers of Ring Pop proposals and Pokémon transactions, when winter rolled around, Disney movies were the go-to form of entertainment.

Last month, Disney found itself in its own winter nightmare when it was unsuccessful in convincing a court in San Francisco to dismiss a copyright infringement lawsuit. Kelly Wilson, a California filmmaker, sued The Walt Disney Co. over a trailer for the popular new Disney movie Frozen. Wilson claimed that in the trailer, the snowman character Olaf too closely resembles a character in his film The Snowman.

Courtesy of HarshLight via Flickr

A federal judge denied Disney’s motion to dismiss this case, writing, “the sequence of events in both works, from start to finish, is too parallel to conclude that no reasonable juror could find the works substantially similar.”

Although Disney’s Frozen features the famous song “Let it Go” with the lyric, “No right, no wrong, no rules for me I’m free!” the lawsuit is likely to go to trial.

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Alexandra Badalamenti (@AlexBadalamenti) is a Jersey girl and soon-to-be graduate of Fordham University in Lincoln Center. She plans to enroll in law school next year to study Entertainment Law. On any given day, you’ll find her with big blonde hair, high heels, tall Nashville dreams, and holding a newspaper or venti latte.

Featured Image Courtesy of [Elizabeth Albert via Flickr] 

The post The 90s Called: They Want Their Courtroom Back appeared first on Law Street.

I’m just going to cut to the chase: I hate Forever 21. Don’t get me wrong, I spent plenty of my parents’ money there on a seasonal basis when I was a teen, but by the time I was 17 I had completely sworn off the fast fashion mega-chain. Ironically, I used to shop at stores like Forever 21 and H&M because their merchandise was strikingly similar to the clothes I would see in magazines. But the more I immersed myself in the industry, the more I learned that these stores were the antithesis to the look I was striving to emulate. Forever 21 blatantly copies designers’ prints from big names like Diane von Furstenberg to independent clothing boutiques. In publishing that’s called plagiarism, but in retail it’s called making fashion “accessible” to the masses.

Courtesy of Simka sol via Facebook

The whole concept behind Forever 21 disturbs me. I used to walk into a store in complete awe, wondering how I was ever going to manage to thoroughly browse through all of the trendy merchandise. Now I walk in and feel disgusted.

I first noticed something was off about the store when I visited a three-level unit at the Garden State Plaza, much larger than any other store I had seen before. The bottom floor was overstuffed with sale merchandise. Upon seeing this I immediately thought, “What do they end up doing with all of these clothes? Surely, not that many people end up buying sale when there’s so much on-trend and reasonably-priced merchandise upstairs.” I pictured those factories where they shred old clothes and realized that even if the store never sells most of its sale merchandise, it will hardly make a dent in the company’s revenue. Forever 21’s clothes could cost around 20 cents to make and they sell them for $20 apiece, that’s a 1,000 percent markup. Something about that just doesn’t seem right.

Copyright laws allow for retailers like Forever 21 to copy garment designs, but not any prints that designers place on their garments. Which, if you think about it makes a lot of sense. Most clothes are made with one of a few possible patterns and ultimately it is what a designer puts of those patterns that makes their work unique and innovative. Considering part of their job description involves designing prints, how is it fair for them to do all the work only for someone else to come along and sell the same thing at a fraction of the price? Not to mention that fast fashion retailers can make a whole lot more money off of a copyrighted item by selling it in mass quantities.

Left: A dress by Diane von Furstenberg Right: Forever 21’s version. Courtesy of Susan Scafidi via Counterfeit Chic

Granted, the role of a fashion designer is also to set the example so other fashion retailers can sell on-trend clothing to the masses. However, trends usually dictate a silhouette or color that is “of the moment.” Sometimes a particular generic print may be in style, for example leopard print, but in that case there are so many variations that retailers can make that it is completely unnecessary for them to literally copy a designer’s version of that print. So why does Forever21 win or settle nearly every lawsuit filed against it?

In addition to over 50 copyright lawsuits, the company is also notorious for numerous labor violations. So not only does it cheat designers out of profits, but it also fails to pay employees fairly. Employee lawsuits go as far back as 2001, when workers claimed they were being paid under minimum wage. There was even a three-year boycott of the retailer by its U.S. garment workers. This year, U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) fined three stores with over $100,000 in safety violations.

Despite all of the company’s lawsuits and violations, Forever 21 is one of the largest clothing retailers in the world, so independent designers and small design firms often do not stand a chance against it. Also, Forever 21 has a history of settling before cases are ever brought to trial. Susan Scafidi, fashion law professor at Fordham University, explains that “they’ve been caught so many times, they’ve been publicly exposed so many times, they’ve even been sued — although many fewer times, because all they do is settle — this is just part of their business strategy. They go ahead and they take what they want, and when they get caught, they pay up. It’s probably cheaper than licensing it in the first place.”

The way Forever 21 runs its business is unnecessary as there are plenty of other retailers who run honest businesses, while still offering on-trend merchandise. Despite their involvement in the Bangladeshi factory collapse last year, Gap is a respected retailer in the industry and often collaborates with high-end designers and the Council of Fashion Designers of America (CFDA) in order to provide designer fashions to the masses. In fact, the recent explosion of designer collaborations with retail chains like Target, J. C. Penney, and H&M is the perfect antidote to the moral fast fashion dilemma. When designers willingly and legally offer their pieces to retailers, then there is no need to copy their designs because consumers can have access to the real thing at their desired price-level.

High-end designers control trends in this industry, but large chain retailers control how these trends get delivered to about 90 percent of consumers. Stricter copyright laws should be implemented in order to protect the artistic integrity of these designers. The garment industry is just like any other creative industry, so if it’s illegal to copy famous works of art, it should be illegal to copy wearable works of art as well.

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Katherine Fabian (@kafernn) is a recent graduate of Fordham University’s College at Lincoln Center and is currently applying to law schools, freelance writing, and teaching yoga. She hopes to one day practice fashion law and defend the intellectual property rights of designers.

Featured imaged courtesy of [Adam Fagen via Flickr]

Katherine Fabian

Katherine Fabian is a recent graduate of Fordham University’s College at Lincoln Center. She is a freelance writer and yoga teacher who hopes to one day practice fashion law and defend the intellectual property rights of designers. Contact Katherine at staff@LawStreetMedia.com.

The post Is There A Legal Way to Offer Fast Fashion to the Masses? appeared first on Law Street.

In 2012, a new company called Aereo launched. It offered a revolutionary new way to watch TV. Essentially, Aereo provides subscribers with a small antenna about the size of a dime that receives TV signals. The dime is kept in a remote local area and then streams TV to any device in the house with Internet access such as a computer, tablet or smartphone. In addition, it’s possible to send the content to an actual TV if you have the correct cables or a streaming device such as Apple TV. Aereo also includes a DVR feature. All of this is extremely cheap–it costs about $1 a day, plus some DVR storage charges. Aereo began in New York City, and now includes Atlanta, Dallas, Denver, Detroit, Houston, Miami, and Salt Lake City. They have plans to expand to most other major cities in coming years. Aereo mostly streams basic channels and public access–not cable. For some more background on the company from the Intellectual Property side, check this out. 

Aereo is a great solution at a time when more and more people, mainly young people, can access most of their TV needs online. Services like Netflix and Hulu+ are cheaper than a traditional cable plan. Itunes allows you buy a subscription to one show for a season, which is convenient when you only want one show on a given cable network. I don’t have a TV or cable package–people are always shocked when I tell them this, but a combination of Netflix, inviting myself to watch shows at friends’ houses, and other internet sources work just fine for me. Earlier this year, a tech reporter for HuffPost reviewed Aereo and was pretty happy with the convenience for a cheap price.

Almost as soon as Aereo started, it received ire from the largest broadcasting companies. ABC, NBC, CBS, and FOX are officially involved in lawsuits, while other networks, such as Univision, have voiced their support for their fellow networks. The case has gone through a few series of appeals, and as on Friday, the Supreme Court announced their decision to take the case. On every appeal, the courts have so far sided with Aero.

The legal argument made by the broadcasting companies boils down to the fact that they are not receiving compensation for Aereo’s services, the way they do from a company such as Verizon or a local provider. Aereo also doesn’t have a license to show any of this content. Paul Clement, a lawyer for the network stated the case raised issues in copyright law that, “profoundly affect, and potentially endanger, over-the-air-broadcast television.”

Aereo’s response is that they do not create public performances, which law prevents, but because they just send individual signals, that is not the case. They just access the signals that the TV channels have broadcasted, and that consumers have always had the right to use antennas to access TV. The court has sided with Aereo twice on that argument so far, but the start-up still encouraged the Supreme Court to take the case.

The case does have some interesting potentially implications. For example, if Aereo wins, some broadcasting companies may move towards subscription streaming (FOX has already threatened this), which would be costly and difficult.

The ultimate question at issue here is, as it seems to be so often these days, the intersection between law and technology–technology has clearly outpaced the law. But is that a bad thing? The Supreme Court will shed some light on that topic in coming months.

[ABC News]

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Miguel Pires da Rosa via Wikipedia]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post TV Streaming Makes it to Supreme Court appeared first on Law Street.

The road to the Google Books Library Project was paved with good intentions. Equalize the reach of books to anyone with Internet access. Oh, and make the books free. Knowledge for the people.

But somewhere beneath this pavement there was a hitch — copyright law.  A lot of the books that were digitized for public access were under copyright. However, I must note that the scanned books were only available in snippets and wholly scanned so that they could be researched through the Project’s online card catalogue. Is this a violation of copyright law or is it fair use?  At first glance, I thought this was quite clearly copyright infringement, but upon deeper exploration I had to agree that the Google Books Project could be interpreted as transformative. But here’s how I really feel: it’s a stretch and I don’t respect it.

Let’s explore how the suit against Google has been unfolding.

On December 23, the Authors Guild, a coalition that aims to promote the copyright protection of written works, announced their intention to appeal the dismissal of their lawsuit against Google.  The suit centered on the notion that Google was infringing on the copyrights of numerous authors by scanning more than 20 million books for the Google Books Project without the authors’ permission. Though the Project’s stated purpose is to “make it easier for people to find relevant books while [also] respecting authors’ and publishers’ copyrights,” the contested point here is this: when does fair use cross the boundary into infringement?

Because I thought that blatantly copying another’s entire work without their permission would be an obvious case of infringement.

The suit was initially filed more than eight years ago and was abruptly dismissed by a New York Circuit judge on the basis that the Project doesn’t actually harm the creators of these written works. Granting a summary judgment motion in Google’s favor, the judge referenced the defenses of fair use and transformation. He made a point to factor in the educational purposes fulfilled by the Project in his determination that the Project was transformative. Ok. Sure.

I guess you could say that taking anothers’ works and printing them verbatim for your own use hidden by the pretext of ‘education for all’ would transform your creation into something new. Sure. Like I said, there are definitely some good intentions here, and I’m all for wider dissemination of book content. But I’m just not buying why these authors shouldn’t be compensated or why their permission isn’t needed.

Does anyone remember the Harry Potter case? Five years ago, someone attempted to create a Harry Potter encyclopedia for pretty much the same purpose as Google Books – to make information easier to find. However, in that case, the judge ruled that while the online guide was slightly transformative because it put all of the terms into one source, it still didn’t satisfy the defense of fair use because of the amount of verbatim text taken from the Harry Potter books. Is Google not doing the exact same thing?  Are they not copying the books verbatim and offering them to the public without author compensation or permission? Who is Google to determine the appropriate amount of content to freely display to the public?

Which brings me to my next question — does Google win merely because they are Google?  These books were created to entertain, to educate, and to bring forth whatever purpose the author may have fathomed. So in my opinion, the only new purpose that Google is adding is dissemination. I guess now we can take entire books and create our own educational or research-related excuse for stealing them and have the courts deem it a “transformation.” Google shouldn’t be allowed to decide the amount of content that can be utilized in creating this reference bank — the authors should. And the authors should’ve been given a voice throughout the Project’s entire creation.

I truly appreciate what Google Books stands for as far as enlarging the audience for these books and making intellectual power more easily obtainable. I just don’t understand why Google, with their absurd amount of wealth, couldn’t settle with the authors who created the information they wish to share — even after eight years! This case is nothing more than a power play by Google to remind us who’s in charge.

The Google Books Project should exist, but not without compensation to those who built it. Compiling information is not the same as creating it.

Gena.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Get in touch with Gena via email here.

Featured image courtesy of [Aray Chen via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

The post Copyright Law: Why Google Doesn’t Have Time for That appeared first on Law Street.

In today’s world of constantly shared media, including photos, videos, and artwork, it’s easy to get confused about copyright laws. People who create content have the copyright to it, but there are some exceptions. For a long time, we’ve had the concept of “Fair Use” in American jurisprudence. Read on to learn about Fair Use, the arguments for it, and the arguments against it.

What exactly is Fair Use?

Under 17 U.S.C. 107, a person who infringes the exclusive copyright rights held by another can avoid copyright infringement liability if he proves that the infringement constituted Fair Use. Fair Use is an exception to copyright rights that is written into U.S. Copyright law. It is an affirmative defense to a copyright infringement claim, which means that if the plaintiff makes a  prima facie showing of the elements of infringement and can therefore claim that the defendant did infringe on his copyright, then the defendant, in order to avoid liability, must meet the burden of proving at least a prima facie showing that Fair Use applies in his case. If the defendant succeeds, then the plaintiff will then have the burden of showing that there are insufficient Fair Use factors in the case. Whoever fails to meet their burden loses. If Fair Use is claimed it is analyzed by the courts under several fact-specific factors, including the following:

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
• The effect of the use upon the potential market for or value of the copyrighted work.

The relevance of each factor varies with the facts of each individual case; however, the fourth factor is generally the most important. Courts are allowed to consider additional factors to the ones enumerated in the Copyright Act.

The first Fair Use factor is the “purpose and character of the use.”  Courts consider whether the use comports with the intent of copyright law to engender creativity that enriches the realm of knowledge available to the public, or whether the use merely attempts to serve as a substitute for the original, serving the second creator’s financial interests. To qualify for the Fair Use defense, the user must show that the use advances the knowledge or progress of the arts by adding something new. A key consideration is whether the use is transformative or simply derivative. The Supreme Court has held that the extent of the transformativeness of a use of copyrighted material is inversely proportional to the import of factors weighing against Fair Use.

The second Fair Use factor is “the nature of the copyrighted work.”  For example, courts consider whether the work is fictional or non-fictional. Also, individual facts and ideas are generally not protected under Copyright law.  This factor is generally the least relevant in a Fair Use determination.

The third Fair Use factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” This factor is about the amount and proportion of the work that is used without authorization. Generally, the amount used is inversely proportional to the likelihood of a finding of Fair Use; however, the use of small but important portions of a work may constitute infringement despite the minimal nature.

The last factor is “the effect of the use upon the potential market for or value of the copyrighted work.”  This factor is based on whether and to what extent the unauthorized use negatively impacts the copyright owner’s ability to exploit the value of his or her own work.  Courts consider whether the specific use is harmful to the owner’s financial interests and whether similar mainstream uses would be harmful. If the unauthorized work creates a market replacement for the original then that indicates harm to the copyright owner’s interests. Certain kinds of market harm can constitute Fair Use e.g. parody or criticism. Copyright protection does not shield a work from negative reviews.

What is the argument for keeping Fair Use?

Proponents of retaining the Fair Use defense argue that it is intended to allow educational and nonprofit organizations to utilize copyright material for noncommercial purposes that do not harm the interests of copyright owners without fear of litigation. These purposes are socially valuable actions that allow vulnerable members of society access to the public’s realm of knowledge. The words “educational” and “nonprofit” are even written into the Copyright Act. Moreover, the exception is not easily abused because educational value of an unauthorized use is neither dispositive nor the most critical factor.  The other factors are still considered as well.

A study by numerous technology companies found that Fair Use exceptions to Copyright law were responsible for more than $4.5 trillion in yearly revenue for the U.S. economy–roughly one-sixth of the United States’ total gross domestic product. The study also found that Fair Use was responsible for more than 18 percent of U.S. economic growth and more than 11 million American jobs. Fair Use is vital to modern life in the information age.

Courtesy of Association of Research Libraries.

 What is the argument against Fair Use?

Opponents of retaining the Fair Use defense argue that Fair Use is a problem because it leads to a large amount of litigation. Fair Use is commonly misunderstood by the public and emboldens many individuals into conduct that risks infringing the copyrights of owners. The law is deliberately ambiguous in order to give the courts the flexibility to make fact-specific determinations, therefore, different courts can interpret copyright law differently and it is difficult for an owner to know the extent to which his or her work will be protected from infringement.

By granting an affirmative defense to copyright infringers the law makes it more difficult for copyright owners to rely on the courts for justice. Owners may be forced to not only prove that their work is copyrighted and that it was used by the defendant, but also they may be forced to prove the absence of Fair Use as well. Fair Use also makes it more expensive and time consuming to litigate copyright infringement claims because it essentially creates two trials out of one. First, the plaintiff must make a prima facie showing of infringement, which the defendant is free to undercut and the defendant only needs to attempt to show Fair Use after the plaintiff’s burden is met. Furthermore, if Fair Use is shown, then the plaintiff has to show that it does not apply in the case. This is an unreasonable burden on the plaintiff.

 Conclusion

How to protect fairness when it comes to using someone else’s copyrighted content is a complicated question. Fair Use is an answer to that question, although clearly an imperfect one. As our technology and ability to share content continues to develop, however, they may need to be revisited.

Resources

Primary

BitLaw: Fair Use Statute

US Copyright Office: Copyright Fair Use

Additional

ARL: The Good News About Library Fair Use

Electronic Frontier Foundation: Court Upholds Legality of Google Books: Tremendous Victory for Fair Use and the Public Interest

Tech Dirt: Fair Use: Worth More to the Economy Than Copyright?

Wired: Study: Fair Use Contributes Trillions to U.S. Economy

Electronic Frontier Foundation: Supreme Court Gets it Wrong in Golan v. Holder, Public Domain Mourns

Blog Herald: The Limitations of Fair Use

Copyright Crash Course: Will We Need Fair Use in the 21st Century?

Stanford: Fair Use

Columbia: Fair Use Checklist

Columbia: Fair Use in Education and Research

Fair Use Tube: Fairusetube

Electronic Frontier Foundation: New Study Affirms Fewer Copyright Restrictions Benefit the Economy, Amid Renewed Calls for SOPA 2.0

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

The post Fair Use: Is it Really Fair? appeared first on Law Street.

It seems as if Google is always caught in the midst of a lawsuit. This time, has Google gone too far? Judge Denny Chin doesn’t think so.

Over the past eight years, Google has been in constant conflict with the Authors Guild, the not-for-profit American organization of and for authors, arguing the legality of Google Books.

Google Books, formally known as Google Print, is a revolutionary technology, initially introduced at the Frankfurt Book Fair in October 2004, that compiles millions of full-text books and magazines for public use.

Since the inception of Google Books, not much has changed. The documents continue to be scanned and converted into text through a process called optical character recognition where they are finally stored in a digital public database for users all around the world to use.

This has been an excessively drawn out copyright fight between juggernaut Google and the Authors Guild. And now, it is finally over, as Judge Denny Chin ruled in favor of fair use as it is something that benefits the masses. So as long as it benefits the masses, should it be partially free? (Healthcare anyone?) 

John Locke is probably turning in his grave right this instant.

John Locke, an english philosopher and physician, unequivocally believed in the idea of private property. If you create it, you claim that territory, conceive an idea, it is all yours—a sacred western value that the United States treats very seriously.

The ruling on Google Books completely turns this idea on its head. Furthermore, this is a landmark case because it could create a precedent for future court cases when it comes to copyright law.

Judge Chin’s overarching argument is that Google allows readers to discover books, therefore it will bring new income to the readers.

Judge Denny Chin made the ruling based on the fact that Google’s digitization of the source material is “highly transformative” and won’t interfere with the original market.

Now, this case is much bigger than it actually seems. On the surface, Judge Denny Chin’s decision seems great, enabling the world access to more than 20 million books. Unfortunately, this ruling utterly decimates the idea of copyright.

Copyright is a legal concept that gives the creator exclusive rights and protection over original works of authorship, ranging from literary artistic, and musical intellectual works. The author alone has the right to replicate, distribute, perform or display copies of his or her work.

This court case may be appealed as the judge basically ruled that as long as it benefits the masses, copyright really isn’t much of an issue. It renders everything copyright stands for utterly useless.

Will this court case be appealed? Probably. As of now, this “essential research tool” is available for everyone to use.

[Business Insider] [Gigagom]

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Featured image courtesy of [Lin Kristensen via Wikipedia]

Zachary Schneider

Zach Schneider is a student at American University and formerly an intern at Law Street Media. Contact Zach at staff@LawStreetMedia.com.

The post Google vs. Authors Guild: The Fight is Finally Over appeared first on Law Street.