Peter Friedman
Lawyer
Ruling Imagination: Law and Creativity
Friday Night Music (paranoid edition): Steinski – The Motorcade Sped On
Friday Night Music: DJ Earworm – Like, OMG Baby (Capital FM Summertime Ball Mashup)
Judge refuses to sanction Shepard Fairey.
The common wisdom seems to be that the judge in Shepard Fairey’s lawsuit with AP and Manny Garcia over the use Fairey made of Garcia’s photo in creating the Obama Hope poster would be sanctioned for having lied during the course of the lawsuit about knowing he used the photo that was identified in February 2009 as his source. The sanctions could range from monetary “fines” all the way up to ruling against Fairey without ever having determined the legitimacy of his legal claims. But earlier this week the judge, Alvin K. Hellerstein, issued an order in which he denied AP’s pending motion for sanctions. The order states that AP has engaged in an “endless quest” for information from Fairey in an effort to pin him down. At the same time, the judge acknowledged that Fairey’s carefully phrased answers to questions and his earlier dishonesty would be left to be judged for themselves during trial: ”The Associated Press, in its effort to pin down Fairey, has engaged in an endless quest for discovery. If there has been willfulness, it will be proved at trial through Fairey’s evasiveness.”
California Gurls quotes California Girls. Can you imagine the nerve?
It’s sad when artists mistake the nature of their creations, when they somehow think they exist apart from culture as lone innovators. It’s especially pathetic when they believe their work is something like the real property they buy with whatever they’re lucky enough to earn from those works, something they can fence off from the rest of the world and keep trespassers off of. Techdirt points out an exceedingly outrageous instance of this:
[T]he Beach Boys are threatening to sue Katy Perry and/or her label if they’re not given songwriting credits for her song California Gurls. The Beach Boys, of course, did have a famous song back in 1965, called California Girls, with the classic line “I wish they all could be California Girls…” In the Katy Perry song, which is very different than the Beach Boys song, at the very, very, very end, Snoop Dogg says “I really wish you all could be California girls,” so the quote isn’t even a direct one.
I share techdirt’s hope that Katy Perry and her label stick to their guns. It’s tough to imagine a more obvious non-infringing use. Quite plainly, Perry was paying homage to the Beach Boys. Could you imagine requiring permission every time an artist riffs on an earlier work of art? We’d have no culture. Mike Love says, “I think [Perry's song] brings the Beach Boys’ 1965 classic to mind, that’s for sure.” You think? Would that mean the producers of the Dukes of Hazzard have their own claim?
On tossing aside centuries of tradition.
Racially segregated proms have been held in Montgomery County [,Georgia] — where about two-thirds of the population is white — almost every year since its schools were integrated in 1971. Such proms are, by many accounts, longstanding traditions in towns across the rural South, though in recent years a number of communities have successfully pushed for change. . . . The senior proms held by Montgomery County High School students — referred to by many students as “the black-folks prom” and “the white-folks prom” — are organized outside school through student committees with the help of parents. All students are welcome at the black prom, though generally few if any white students show up. The white prom, students say, remains governed by a largely unspoken set of rules about who may come. Black members of the student council say they have asked school administrators about holding a single school-sponsored prom, but that, along with efforts to collaborate with white prom planners, has failed. According to Timothy Wiggs, the outgoing student council president and one of 21 black students graduating this year, “We just never get anywhere with it.” Principal Luke Smith says the school has no plans to sponsor a prom, noting that when it did so in 1995, attendance was poor.
Students of both races say that interracial friendships are common at Montgomery County High School. Black and white students also date one another, though often out of sight of judgmental parents. “Most of the students do want to have a prom together,” says Terra Fountain, a white 18-year-old who graduated from Montgomery County High School last year and is now living with her black boyfriend. “But it’s the white parents who say no. … They’re like, if you’re going with the black people, I’m not going to pay for it.”
“It’s awkward,” acknowledges JonPaul Edge, a senior who is white. “I have as many black friends as I do white friends. We do everything else together. We hang out. We play sports together. We go to class together. I don’t think anybody at our school is racist.” Trying to explain the continued existence of segregated proms, Edge falls back on the same reasoning offered by a number of white students and their parents. “It’s how it’s always been,” he says. “It’s just a tradition.”
The decision in Perry v. City and County of San Francisco — trial court decision striking down Proposition 8, which banned gay marriage.
Proposition 8 Gay Marriage Trial Court Decision, Perry v. City and County of San Francisco
The ADL forgets things that we should never forget.
I share wholeheartedly Paul Krugman’s “shock” at the Anti-Defamation League’s opposition to the construction of a mosque near Ground Zero. The temple I grew up as a member of and at which my older son and I each were bar mitzvahed has a long history, exemplified by Rabbi Arthur Lelyveld, in the fight for civil rights and interfaith relations. Even more to the point, however, the temple’s present building was completed in 1957, but only after a bitter lawsuit against the City of Beachwood that required the temple to go all the way to the U.S. Supreme Court. The litigation was over zoning matters, but you’re quite naive if you think the opposition was motivated by zoning concerns.
Artists learn to cobble together successful careers.
QuestionCopyright.org describes an emerging new paradigm for artists in The Cobbler: A New Career Model for Artists and Entertainers:
“Filmmakers, musicians, and writers now have the opportunity to work in a more stable, less risky way — with an economic model like a corner shoe cobbler, with a skill and a loyal clientele. While it may not have the glamour of red carpets and stadium shows, it can be a life in which one’s vocation is sustainable, at a level that pays a living wage and allows one to be one’s own boss. One trades a small chance of making a lot of money quickly for a greatly improved chance of making some money steadily. For many artists, that’s a good trade-off.”
In short, artists are using the new means of production and distribution to control the creation, marketing, and sale of their work. It’s the inevitable outcome of what I described last January at Critical Mass regarding the future of books — the loss by the publishing, recording, and entertainment industries of control over the means of production and distribution of their products. As I wrote then, “[t]he entire publishing industry as we’ve known it is a walking corpse. You can almost imagine it as a zombie — composed of parts of Sarah Palin, Oprah, Dan Brown, and Tiger Woods — lumbering down Manhattan’s avenues.”
This new paradigm is no hypothetical. My sister, Amy Friedman, has written over 1000 stories over the past 20 years for Universal Press Syndicate (UPS) under the title Tell Me a Story. Since UPS was doing nothing to further develop the content, Amy managed to persuade them to sign back over to her the copyright for a handful of the stories. She, herself, put together musicians, actors, and recording engineers to produce three CD compilations of the stories. The first is 14th on Amazon’s list of audio books today. The third won a 2010 Audie Award, the equivalent of an Oscar in the world of audio books and spoken word entertainment. The second is pretty great too.
Amy is not alone. Matthew Rose is a dear friend, an artist who lives in Paris, and the inspiration that, through the resources of the online world has produced A Book About Death, a phenomenal exhibition that is ever evolving and ever-appearing in new incarnations in the physical world,
I could go on among just my acquaintances. The long and the short of it is this: don’t wait for the publisher, the recording company, the agent, the gallery, the production company.
You can’t own facts — Tremé belongs to all of us.
Tremé is a neighborhood in New Orleans. Treme is an HBO series about New Orleans residents rebuilding their lives after Hurricane Katrina. The Chicory opines correctly that the t-shirt pictured to the left does not infringe any rights anyone holds in the television series. There cannot be a copyright in a fact, so there can be no copyright in the name “Treme.” And while trademark is a distinctive sign or symbol (a “mark”), the t-shirt bears no font or insignia distinctive to the television show. So get your Treme t-shirts and show your support for my friends in New Orleans.
Hat tip to Ray Ward.
Judge dismisses one of Donald Rosenberg’s claims against the Plain Dealer.
As the Plain Dealer reports, on Friday, the judge in Donald Rosenberg’s lawsuit against the Plain Dealer and the Musical Arts Association (the body that manages the Cleveland Orchestra) dismissed one of two of Rosenberg’s claims against the Plain Dealer — the claim that the Plain Dealer had unlawfully retaliated against Rosenberg in forbidding him to use the words “Cleveland Orchestra” in his reporting after he had filed his lawsuit. The judge granted what is called a “directed verdict” on the claim even before the Plain Dealer has presented its evidence to the jury, deciding that either the facts are undisputed and do not establish Rosenberg’s legal right to recover or that even assuming the facts are as Rosenberg contends they are he is not entitled to recover.
In order to recover on a retaliation claim, an employee must show that in response to a discrimination claim the employer made changes in the terms of employment that “might have dissuaded a reasonable worker from making or supporting” the claim. It doesn’t seem particularly controversial that the judge decided that forbidding Rosenberg from referring to one of the parties he was suing would have dissuaded him from filing the lawsuit or that the Plain Dealer intended to punish him for filing the lawsuit. The Plain Dealer argued, in fact, that the restriction was intended to protect against any claim that Rosenberg had a conflict of interest. Rosenberg, on the other hand, argued that the restriction “effectively limited his reporting about other fine arts matters in Northeast Ohio because so many of them could also involve Cleveland Orchestra players.”
My access to the case thus far has largely been limited to what has been reported in the press, but it’s difficult for me to imagine the inability to identify someone as a member of the Orchestra constituted any real restriction on Rosenberg’s reporting. It’s much easier for me to imagine that argument is a lawyer’s effort to support a very weak claim.