Bratz, Mattel, and Work for Hire: does copyright really protect the artist?

I often wonder if artists who cry loudly about the threat posed to creativity by insufficient “protection” of copyright are really useful idiots. That copyright is primarily about protecting the artist is questionable, not least because of the “work for hire” doctrine. In short, as the Stanford Copyright & Fair Use site puts it:

If a work is created by an employee in the course of his or her employment, the employer owns the copyright.

The recent victory by MGA Entertainment over Mattel in the fight over the ownership of the copyright in Bratz dolls highlights the difficulties creators might face in connection with the work for hire doctrine. In part, the case turned on the distinction between an “idea,” which cannot be copyrighted, and its particular expression, which can. Carter Bryant was an employee of Mattel at the time he first developed and sold to MGA the idea for the Bratz dolls. As Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit explained in the 2010 decision overturning an earlier jury verdict in favor of Mattel, that idea in and of itself could not be claimed by Mattel merely because Bryant was its employee at the time:

Assuming that Mattel owns Bryant’s preliminary drawings and sculpt, its copyrights in the works would cover only its particular expression of the bratty-doll idea, not the idea itself. See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971). Otherwise, the first person to express any idea would have a monopoly over it. Degas can’t prohibit other artists from painting ballerinas, and Charlaine Harris can’t stop Stephenie Meyer from publishing Twilight just because Sookie came first. Similarly, MGA was free to look at Bryant’s sketches and say, “Good idea! We want to create bratty dolls too.”

But, as Jonathan Bailey at Plagiarism Today explains, Mattel’s claim was based in part on Carter’s employment contract, which stated that

I agree to communicate to the Company as promptly and fully as practicable all inventions (as defined below) conceived or reduced to practice by me (alone or jointly by others) at any time during my employment by the Company. I hereby assign to the Company … all my right, title and interest in such inventions, and all my right, title and interest in any patents, copyrights, patent applications or copyright applications based thereon. (emphasis added)

The contract further specified that “the term `inventions’ includes, but is not limited to, all discoveries, improvements, processes, developments, designs, knowhow, data computer programs and formulae, whether patentable or unpatentable.”

Mattel argued that the contract’s definition of “inventions” therefore gave it rights to any “ideas” Carter developed during the time of his employment. The 9th Circuit “conclude[d] that the agreement could be interpreted to cover ideas, but the text doesn’t compel that reading.” (emphasis added) It therefore left to the jury in the new trial to decide what in fact Carter and Mattel had intended the contract to cover. Plainly, the jury did not buy Mattel’s argument.

As Bailey points out, the issues involved in the case have very meaningful implications for all creators:

Generally, any work you create for an employer as part of your job becomes copyright of the employer, not you. However, almost instantly there becomes issues as to what is and is not part of your employment, especially when you do creative work on the side that is similar to the work you do for a living.

If you are an artist and do artistic work for your employer, when is your creative work done in the course of employment and when is it not? That is a difficult question in and of itself, but an artist must also pay close attention to his or her contract. While Carter and MGA prevailed over Mattel, your contract, might give your employer ownership over your very ideas if it states so clearly enough.

Is Righthaven committing Champerty? It sure seems so.

I’ve long thought of writing about Righthaven as an embodiment of copyright gone mad. As explained at Righthaven Lawsuits, Righthaven is an entity set up to purchase the rights to newspaper stories and sue for copyright infringement anyone who dares to quote from those stories online. There has been so much coverage, however, that anything I might have to say would have been redundant. And I’m not first on this point, but it’s one I cannot leave alone. Nate Anderson writes that it appears the agreements pursuant to which Righthaven purchased the rights to sue for the infringements of articles does no such thing. The problem, according to Anderson, is that Righthaven’s agreement

appears to give Righthaven only the right to sue over the story or photograph at issue, but not to exploit it in any other way. Past court cases have ruled that companies cannot bring copyright suits unless they control one of the “exclusive rights” enumerated in the Copyright Acts, rights including copying, distribution, public performance, etc. The “right to sue” is not among them.

Indeed, Anderson seems to be right. The “Strategic Alliance Agreement” between Righthaven and Stephens Media LLC (embedded below) states in its section 7.2 that Righthaven has no rights in the works it is purchasing rights in except those rights associated with suing for suing for copyright infringement in those works:

Despite any such Copyright Assigmnent, Stephens Media shall retain (and ishereby granted by Righthaven) an exclusive license to Exploit the Stephens Media Assigned Copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery. (emphasis added).

In his treatise on copyright, William Patry states “Plaintiff must plead ownership of the right sought to be vindicated.” Patry on Copyright, Section 19:7. In short, you cannot sue for violation of a right that is not yours to enforce.  To allow Righthaven to do otherwise is to allow it to engage in the common law sin of “champerty,” which is the sale to someone with no interest in the alleged wrong being sued on of a right to sue for a percentage of the amount recovered in the suit. As the Second Circuit Court of Appeals has explained it, champerty is “a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part in consideration of receiving part of any judgment proceeds.” Alexander v. Unification Church of America, 634 F.2d 673, 677 n.5 (2d Cir. 1980). As Patry explains it, Righthaven seems to have fallen into the trap of engaging in Champerty:

As applied to copyright, champerty may be found only when there is an assignment of the copyright and preexisting causes of action and where the assignment of the copyright was a sham designed to disguise the real intent of conveying the chose in action. For example, if the assignment required the assignee to reconvey the copyright at the conclusion of the litigation, this would be very strong evidence of champerty. If, however, the assignor continued to exploit the work in a manner inconsistent with an assignment of rights, a claim of champerty might prove out.

Patry on Copyrght, Section 5:36 (emphasis added).

Strategic Alliance Agreement Between Righthaven and Stephens Media

Tasini v. Huffington Post — frivolous, not creative.

I’m not normally one to bemoan the bringing of lawsuits, and I’m not even bemoaning the fact Jonathan Tasini is able to bring his lawsuit (pdf) “against the Huffington Post [that] hinges . . . on the idea that the site, and Arianna Huffington herself, were ‘unjustly enriched’ in the $315 million sale to AOL because bloggers like him worked for free.”

But I do think b.s. is b.s., and no matter how “creative” Tasini believes his lawyers are, there is no claim here for “unjust enrichment.” As West’s Encyclopedia of American Law explains, unjust enrichment is a theory of legal recovery for a benefit conferred upon someone under circumstances that make it just to pay for that benefit:

Unjust enrichment has three elements. First, the plaintiff must have provided the defendant with something of value while expecting compensation in return. Second, the defendant must have acknowledged, accepted, and benefited from whatever the plaintiff provided. Third, the plaintiff must show that it would be inequitable or unconscionable for the defendant to enjoy the benefit of the plaintiff’s actions without paying for it.

The problem with Tasini’s theory is that neither he nor the other people who wrote for the Huffington Post expected compensation. In fact, they agreed to write for the publication on the understanding they would not be paid. In short, Tasinin had a contract — he would write his pieces, and the Huffington Post would publish them. That he had a contract is, precisely, the problem with his legal claim. Unjust enrichment is only available as a means of legal recovery where there is no contract governing the transaction in question. If there is a contract, the contract determines the terms of the relationship, and it is is by definition not unjust for people to be bound to the terms of a contract they freely entered into.

Tasini is plain wrong when he says otherwise:

The whole legal theory is clear. For unjust enrichment it’s almost irrelevant what agreement was done up front. Unjust enrichment is irrelevant to whether I blog for free or not.

It is true that there is always room for creativity. And it is true that in the face of novel claims one should keep an open mind and pay attention to the evidence and the arguments. But being open to creative legal claims is one thing and being just plain wrong is another. Tasini is just plain wrong:

It’s a novel claim, using some creative thinking by a couple smart young lawyers. You never know how a court is going to rule.

Again: Culture is Collaborative. Kembrew McLeod this time.

In the Atlantic, there is an interview with “intellectual property scholar (and Atlantic contributor) Kembrew McLeod,” who, with copyright lawyer Peter DiCola, argues in Creative License: The Law and Culture of Digital Sampling that “current digital copyright practices unfairly burden musicians who sample snippets of other artists’ songs in their own music. begins by taking us back to the golden age of hip-hop, demonstrating how lawsuits quashed a nascent art form during its artistic ascendancy.” In the course of the interview, McLeod touches on several points I have emphasized in this blog, including the ways sampling (like any sort of artistic appropriation) serves perfectly traditional and ordinary artistic purposes:

Sounds can bring back memories. Some samples remind the listener of a particular era, or connect a song with a particular moment in time. Artists want to transport themselves, and the listener, for nostalgic reasons—or to provide historical resonance. Sampling can function like an audio time machine.

McLeod also articulates a point I have made over and over again: that our conventional notions of “authorship” as the creation of wholly original art from the mind of an inspired genius is not at all consistent with the reality of artistic creation:

The old-school notion of the individual genius author is embedded in European and American copyright law—the lone individual genius toiling away until a burst of creativity creates a truly original work unlike anything else that previously exists. But we know that, in the world of music, you can’t really create a new song without referring to an old song in some way. So the law itself assumes a Romantic notion of authorship, though we know this isn’t how culture is produced. Culture is collaborative.

The entire interview is worthwhile. It covers a wide range of matters relevant to these issues and is especially informative on the history of the music industry’s ways of dealing with sampling.