Manny Garcia gives up his claim that he, not the Associated Press, owns the copyright in the photo he shot and that Shepard Fairey used as the source of the image in the Obama Hope poster.

Manny Garcia has dropped all the claims in the lawsuit over whether Shepard Fairey’s Obama Hope poster infringed the copyright in the photo Garcia had taken and that Fairey had used as the source of the image. The Stipulation of Discontinuance with Prejudice filed in the case is embedded below.

What this means is that Garcia has given up his claim that he rather than the Associated Press owns the copyright in the photo. The Associated Press claims that it owns the copyright in the photo on the grounds that Garcia shot it as a “work for hire.” The fact that the claims by Garcia and against him have been discontinued by agreement of the parties “with prejudice” means that Garcia has given up any right to re-assert those claims in the future. The agreement constitutes a final, binding determination that the copyright in the photo belongs to the Associated Press.

It does nothing, however, to illuminate the outcome of the claim by the Associated Press that Fairey’s poster infringes the copyright in the photo. But it does illuminate those familiar with the history of copyright know — the enlargement and enforcement of copyright has always been more about protecting the interests of publishers than it has been of promoting artistic creation:

There is one group of people not shocked by the record industry’s policy of suing randomly chosen file sharers: historians of copyright. They already know what everyone else is slowly finding out: that copyright was never primarily about paying artists for their work, and that far from being designed to support creators, copyright was designed by and for distributors — that is, publishers . . .

Words and Ideas as Common Property: Lewis Hyde, Stanley Fish and lawyers as “plagiarists”

In yesterday’s New York Times, Robert Darnton reviewed Lewis Hyde’s newly published Common as Air: Revolution, Art, and Ownership, describing it as “an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.” As Darnton explains, “Hyde invokes the [founding fathers] in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the arts, literature, and the entire world of knowledge — in order to exploit monopolies.” Acknowledging that Hyde’s historical approach might seem a “dubious” way of “defending the cultural commons” and that in other hands it could amount to nothing more than picking and choosing among “a stockpile of quotable chunks of wisdom,” Darnton finds the book compelling:

[Hyde] does not merely cull the works of the founding fathers for quotations. He pitches his argument at a level where historians and political philosophers have contributed most to our understanding of intellectual history. Instead of treating the ideas of the founders as self-contained units of meaning, he explores their interconnections and shows how they shared a common conceptual frame. Not that he pretends to have uncovered anything unknown to the authorities he cites, notably the historian J. G. A. Pocock, whose studies of civic republicanism reveal how early modern philosophers drew on a current of thought about the nature of citizenship that goes back to ancient Greece and Rome. Hyde builds his argument by telling stories, and he tells them well. His book brims with vignettes, which may be familiar but complement one other in ways that produce original insights.

It is one of the genuine highlights of my professional career that Hyde draws on an article I’ve written. Hyde’s scope is wide, and he explores in depth the practices of many different “communities” — including, among others, the world of scientific research and the programmers that collectively created the World Wide Web — to show that treating knowledge and invention as a commons is both widespread and productive. One such community is the legal profession, which might seem odd in that the widely held understanding that your intellectual product is as much your property as is your house is such a legalistic conception:

Many . . . communities of practice have common holdings made durable and lively through normative rather than legal stints.

One of these may be found, oddly enough, in the legal community itself, where, as in some scientific circles, collective tasks get done and “collective beings” come to life through the agreed-upon non-ownership of creative labors. The fact is that in legal circles when judges issue opinions they often “plagiarize” from the briefs presented by contending parties. To take but one example, in 1937 Supreme Court Justice Benjamin Cardozo lifted, without attribution, verbatim sections of the Roosevelt administration’s brief in his decision upholding the Social Security system. Of course, “plagiarism” is the wrong term here, for legal writing does not come from the kind of author to whom credit is due. Legal writing is mostly collaborative, for one thing, produced by writing communities. In addition, legal opinions are public documents, belonging to no one because they belong to all of us. Nobody has ever successfully claimed copyright infringement for the unauthorized use of someone else’s legal argument. In fact, legal writers want to have their work appropriated. Peter Friedman, a lawyer whose analysis I’m drawing on here, has written: “I knew I had written the best brief I possibly could on a motion when the court’s opinion announcing its decision was directly cut-and-pasted from my brief.”

If lawyers were the kind of authors who claimed a property in their work, they would potentially deprive both the work and themselves of their public roles. As with eighteenth-century pamphleteers, or with the creators of the World Wide Web, self-erasure attends a lawyer’s entry into the public sphere, not self-assertion. The law is collective; it belongs to all citizens, and consequently we ask that its practitioners present themselves as public persons with copyduties rather than copyrights. In this context, to sample someone else’s brief is a favor, not a theft; it helps a lawyer be a lawyer. Common ownership makes that species of public life possible. (Common as Air at 248-249.)

Interestingly enough, this passage has some bearing on an exchange I had recently with the incredibly accomplished lawyer and blogger Scott Greenfield. Greenfield wrote a blog post criticizing a piece Stanley Fish wrote in the New York Times that argued that plagiarism as an offense is not a moral wrong, but, rather, the product of particular rules against the use in particular contexts of others’ words and ideas without attribution. [Fish wrote a second piece on the topic, responding to critics of the first piece, here.] The necessary corollary of Fish’s point is that in other contexts the use of others’ words and ideas without attribution is perfectly acceptable. Greenfield’s disagreement with Fish focused on Fish’s assertion that “lawyers and judges in fact do [appropriate words and ideas without attribution] all the time without the benefit or hindrance of any metaphysical rap.” Greenfield wrote, “No, Stanley, I will not turn the other cheek, no matter how much I love the platitude about reinventing the wheel.”

I tried to explain in the comments to Greenfield’s post where I thought he had missed Fish’s point (which is very much related to Hyde’s). I will try to do so more clearly here inasmuch as he and I seemed to speak past one another in that particular exchange.

In law school, plagiarism is the use of the words or ideas of others without attribution. It is a grave offense that can lead to harsh discipline and even might threaten the student’s ability to someday be certified to practice law. Strict compliance with the need to attribute words and ideas drawn from others is deemed necessary because the point of the academic process is to teach the students to put together and convey ideas clearly and to assess their capacity to do so. Thus, using words or ideas of others without attribution is tantamount to fraud — the reader of those words and the ideas they convey is misled into believing they are the product of the student’s intellectual processes alone, and the reader conducts an activity central to the academic process — grading those words — in reliance on that belief. If I were to read Scott Greenfield’s words under the mistaken belief they were the words of a student whose paper I was grading, I would give him a much better grade than he would earn if I knew he were just quoting Greenfield.

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief’s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn’t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers’ briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

And of course it’s no sin. That’s the point. Which Greenfield acknowledges without realizing it’s the point when he writes that a judge who appropriates the words from a lawyer’s brief is accepting a “gift,” not engaging in plagiarism:

As for judges taking language out of my brief, that’s not plagiarizing, but the purpose of a legal brief, to provide the court with the language to use in his decision. That’s exactly what I’ve written it for, as my “gift” to the judge to use in deciding the case. Again, entirely different from plagiarizing.

But that precisely is Fish’s point. Appropriation without attribution isn’t the moral equivalent of the theft of private property. It’s wrong in some contexts and not in others. So in some contexts it is defined as plagiarism and in others to call it “plagiarism” is to misspeak.

Greenfield’s other retort to Fish also reflects his misunderstanding of the point. Greenfield states that lawyers do provide attribution to the words and ideas for others. That’s what the whole obsession with citation is about:

[W]e do not lift language without attribution. Indeed, that’s what all those silly case names and the “358 U.S. 973″ stuff is all about. It’s the lawyers’ way of attributing, Stanley. It’s called a citation, and it’s our regime. What you do not see at the end of a court decision is the copyright and command that it not be used without permission. Use of court decisions is not merely anticipated, but required in most circumstances. That’s the peculiar way law works.

But the attribution provided by citation in legal briefs and opinions does not serve the same purpose as does attribution to a student’s sources. Lawyer’s don’t provide citations to the authorities they quote and rely on because their failure to do so would result in prosecution for a moral offense. Instead, lawyers provide citations because the citations signal the identity of sources for words, actions, and ideas that have persuasive weight because of who those sources are.

In other words, if I lifted language verbatim from a court decision without quotation marks or citation in a brief I wrote to a court I would suffer no harm. You might object that this possibility is a mere hypothetical, but you would be wrong. If an argument — and even precise words — come from a court that has no controlling weight in the court to whom I am submitting the brief and I have no reason to believe the identity of the court would lend any genuine persuasive weight to the argument, I would be remiss if I did provide the citation. The citation itself would raise a question in the mind of the judge to whom I was submitting the brief — why should I care about this court’s words, ideas, or actions? — that would distract from the persuasive effect of the argument itself.

And, indeed, as a general matter as a lawyer there is little reason to cite to law review articles unless there is reason to believe the author of the article is someone who carries genuine persuasive weight. A judge’s reaction otherwise is likely to be along the lines of this: “A law review article can pretty much assert anything that can win the approval of a student editor. Why should I assume it has any authority merely because it’s published in a law review?”

Would the article’s author have any claim against a lawyer who lifted words or ideas from his article and used them in a brief without attribution? I cannot believe so, nor am I aware of any standard or rule the lawyer would be violating.

And in contract and instrument drafting, of course, lawyers don’t even provide citation for the sources of their words.

I think it is important in understanding what Fish was writing about to understand these different functions of citation. On the one hand, there’s citation to validate the relationship between the words and ideas and the author’s identity. On the other, there’s citation to signal that particular words and ideas come from a source that must be reckoned with by the reader. They are two entirely different functions, and in legal practice the latter is the one that matters. The former does not. And so you have never seen a lawyer suffer any adverse consequences for plagiarizing.

But if any of my legal writing students are reading this, be on guard! Students must provide attribution to the words and ideas they appropriate from others.

Making creations property does not promote creation: fashion this time

It’s difficult in this era in which “property” is considered the source of liberty for people to get their heads around the idea that treating the products of creativity as part of a “cultural commons” is in fact more conducive to creativity and innovation than is strict copyright protection. Here’s some strong evidence of exactly that:

There is no copyright protection afforded to fashion designs. As a result copying is a matter of course in fashion design. You don’t exactly see a dearth of creativity and innovation in fashion design, do you?  In the video below, Johanna Blakely expands on this point. Of course, fashion designers are seeking federal legislation extending copyright protection to their designs. I hate it when ideology (here, that without the worship of “property” our way of life is doomed) trumps reality.

Property is not always the foundation of liberty: fashion and copyright.

It’s difficult in this era in which “property” is considered the source of liberty for people to get their heads around the idea that treating the products of creativity as part of a “cultural commons” is in fact more conducive to creativity and innovation than is strict copyright protection. Here’s some strong evidence of exactly that:

There is no copyright protection afforded to fashion designs. As a result copying is a matter of course in fashion design. You don’t exactly see a dearth of creativity and innovation in fashion design, do you?  Here, Johanna Blakely expands on this point:

And yet, of course, fashion designers are seeking federal legislation extending copyright protection to their designs. I hate it when ideology (here, that without the worship of “property” our way of life is doomed) trumps reality.

Creative Commons licensing is a simple and straightforward application of traditional legal concepts, but the perception it is something more and even radical is partly the fault of Creative Commons.

Much has been written about the absurdity of ASCAP’s fundraising letter that claims that Creative Commons, among others,  is “mobilizing to promote ‘Copyleft’ in order to undermine our ‘Copyright’ and that “[i]f their views are allowed to gain strength, music creators will find it harder and harder to make a living as traditional media shifts to online and wireless services. We all know what will happen next: the music will dry up, and the ultimate loser will be the music consumer.”

As Drew Wilson explains, this description of Creative Commons is ridiculous. And it is. But let me explain why I think in part Creative Commons has made the perception of what it does murkier than need be.

Last year I spent a day at the invitation of a professor at Wooster College lecturing on and discussing copyright with a number of his students. The students were terrific — bright, imaginative, and enthusiastic. At the end of the day we had a two hour, informal discussion section, and finally they were able to pin me down to explain what a few throughout the day had wanted me to explain: what is Creative Commons all about? I hadn’t responded to the question earlier because we had so much to cover in a very limited amount of time and it just didn’t seem like that big of a deal or that complicated to me. But I realized the simplicity of a Creative Commons license had escaped them.

All a Creative Commons does is provide suggested language to anyone who creates copyrighted content that will alert those who use the content whether and under what conditions the creator will allow those users to re-use the content without worry of copyright infringement. If I were to post on my blog that anyone may use any or all of my writing for any purpose provided that in doing so they credit me, make clear what words are mine, and provide hyper-links back to the posts they are using, I would not thereafter be able to sue anyone for copyright infringement who had complied with my conditions. By posting those instructions, I would have made an offer that use under those conditions was permissible. The use by someone of the material in compliance with those conditions would be an acceptance of the offer that would create a binding contract. That contract would bind me to my promise not to consider that use an infringement.

It’s no more complicated than that. Creative Commons provides here a menu of restrictions you might want to put on the use of your creation and the language that will enforce your promise not to consider use that complies with those restrictions.

But somehow the whole enterprise has been perceived to be something much more profound. First there’s the name — Creative Commons — which in the current political environment evokes misbegotten fears of “socialism” and even “communism” that naturally enough feed rhetoric that accuses comrades of the “CopyLeft” of stealing artists’ precious “Property.”

Good god, we’re just talking contract language that copyright holders can use to make explicit to consumers the extent those consumers can feel comfortable re-using the copyrighted works in ways they are certain are consistent with the copyright holders’ desires. This has nothing to do with a “commons” except in that any published, copyrighted work is part of what some people call our “intellectual commons.”

One should also note that even if someone includes with their work a Creative Commons license (or language they draft themselves) that states that re-use under certain conditions will not be considered an infringement, that does not mean that such a re-use would necessarily be an infringement in the absence of that language. Some stuff I post is not original enough to be subject to copyright. Some stuff I post can be re-used in ways that constitute fair use. Just because I’ve told you that you’re free to re-use my stuff as long as you give me credit and a hyper-link doesn’t mean, in other words, that if you don’t give me credit or a hyper-link you’ve infringed my copyright. That would depend on copyright law. But if you did follow my instructions, your worries would be over.

Unfortunately, too, even many of the efforts to provide straightforward explanations of what a Creative Commons “license” is founder on the shoals of legalese. “License” itself is a term most non-lawyers cannot easily grasp. And to jump immediately into screaming that an attack on Creative Commons is an attack on “artistic freedom”  – as Drew Wilson does in the post I link to and praise above — is to descend into rhetoric of war, of right versus left, of freedom versus tyranny, of property versus availability. We shouldn’t need to go there.

Creative Commons licensing is simple, straightforward application of traditional legal concepts. That’s all. Can we please move on now?

Cuckoo Kookabura Continues

The travesty continues — first, there was the court decision in Australia finding Men at Work liable for copyright infringement for appropriating a riff from the Australian chestnut Kookaburra Sits in the Old Gum Tree in their 1981 #1 hit Down Under. Now the judge has ordered the group to pay 5 percent of the royalties it earned from the song. I suppose it’s better than the 60% the publishing company that owns the copyright sought. Kookaburra, incidentally, was composed over 70 years ago, and its composer died 22 years ago. It doesn’t appear, in short, that the copyright here is serving to motivate creation; rather, it’s serving as a disincentive – Down Under stood on its own as an Australian anthem. As Wikipedia reports:

The song is a perennial favourite on Australian radio and television, and topped the charts in the U.S. and U.K. simultaneously in early 1983. It was later used as a theme song by the crew of Australia II in their successful bid to win the America’s Cup in 1983.[citation needed] Men at Work played this song in the closing ceremony of the 2000 Sydney Olympics, alongside other Australian artists. It was also often played after Australian athletes had received medals during competition, as they walked around the venue on a parade lap after the medal ceremony.

In May 2001, Australasian Performing Rights Association (APRA) celebrated its 75th anniversary by naming the Best Australian Songs of all time, as decided by a 100 strong industry panel, “Down Under” was ranked as the fourth song on the list.[5]

In October 2006, Triple M had the Essential 2006 Countdown of the most popular songs of all time, voted by the listeners. “Down Under” was the number 3 voted/ranked song.[citation needed]

The song was voted #96 on VH1’s 100 Greatest Songs of the 80s.[when?]

The song has been used as the entrance music for various professional Australian sportsmen, including darts player Simon Whitlock, cruiserweight boxer Danny Green (for his fight against Roy Jones, Jr. on 2 December 2009) and snooker player Neil Robertson.

The song was played extensively during the September 2009 One-Day International cricket series between England and Australia, which Australia took by six matches to one.

Moreover, as I’ve previously noted, the Sydney Morning Herald reported that “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

And to the extent the riff is recognizable it is doing what a quotation does in a piece of art — using a culturally resonant symbol to sound that resonance.

At least Men at Work is going to appeal the decision.

Judge Dismisses Viacom’s Lawsuit against Google for Infringing Videos Uploaded to YouTube.

Judge Louis L. Stanton of the United States District Court for the Southern District of New York has granted Google’s motion for summary judgment (opinion and order embedded below) and dismissed Viacom’s lawsuit that alleged that that Google was liable under the Digital Millennium Copyright Act (DMCA) for videos uploaded to YouTube that infringed Viacom’s copyrights because Google had “actual knowledge” and was “aware of facts and circumstances from which infringing activity [was] apparent” but failed to “act[] expeditiously to stop it, “received a financial benefit directly attirubutable to the infringing activity” and “had the right and ability to control such activity” and did not engage in these infringements solely by providing “storage at the direction of the user” or any other Internet function specificied in the DMCA.”

The decision is a straightforward application of the DMCA’s “safe harbor” provision, which insulates service providers from liability for activities by their users that infringe copyrights. The judge acknowledged that Viacom was right about its central contention: Google was “not only aware of, but welcomed, copyright-infringing material being placed on their website.” (Opinion and Order at 6) Nonetheless, he also noted that Google designates an agent who, when he receives a takedown notice, “swiftly” removes infringing videos. (Id.)

The judge concluded that for Google to be liable under the DMCA Viacom would have to show more than that Google knew that infringing activity “in general” was occurring on YouTube because the DMCA does not require that degree of responsibility on service providers for the actions of its users:

To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

By insulating service providers from liability for infringements by their users, the Judge Stanton concluded, the DMCA makes perfect sense because it would be far too burdensome for the service provider to make individual judgments on each of its user’s activities to determine whether those activities were infringing:

The infringing works . . . may be a small fraction of millions of works posted [on the service provider’s] platform, [and the service provider] cannot by inspection whether the use has been licensed by the owner, or whether its posting is a “fair use” of the material, or even whether its copyright owner or licensee objects to its posting. The DMCA is explicit: it shall not be construed to condition “safe harbor” protection on a “service provider monitoring its service or affirmatively seeking facts indicating infringing activity . . . .”  (citations omitted)

Moreover, the fact Google took down over 100,000 videos within one business day in response to a single, mass take-down notice sent by Viacom was proof to Judge Stanton that the existing regime works perfectly well:

Indeed, the present case shows that the DMCA notification regime works efficiently: when Viacom over a period ov months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.

Viacom v YouTube Summary Judgment

Does Westlaw infringe a lawyer’s copyright in his legal document? This lawsuit won’t tell us.

The Lawyer’s Weekly reports that lawyer Lorne Waldman has filed a class action in Canada alleging that Westlaw infringes the copyrights held in the documents lawyers file in court and that Westlaw publishes through its online, for pay research service:

The Toronto lawyer contends that the defendants’ Westlaw Litigator service is infringing his copyright, and that of hundreds, if not thousands, of other lawyers by reproducing (in PDF, Microsoft Word and other downloadable formats), and making available on-line for a fee,  more than 50,000 pleadings, court motions and facta the defendants recently copied from civil court files across Canada.

The case raises interesting copyright questions, but I don’t think the court will ever decide those questions.

A class action is a lawsuit brought on behalf of a group of people who have identical legal claims against a defendant arising out of identical facts. Rules of court procedure allow cases to be aggregated promotes efficiency by, in the words of Wikipedia, “aggregat[ing] a large number of individualized claims into one representational lawsuit.” There is a strong incentive too for plaintiffs’ lawyers to  bring class actions — the lawyers for the plaintiff who represents the class by running the lawsuit (typically, though not necessarily, the plaintiff who brings the lawsuit) earn fees based on a percentage of the award given to the entire class. Allowing this bonanza is a better idea than it sounds in many cases — without the promise of the large payday at the end of the case, no one would sue a large corporation like Westlaw individually because the cost would be so great for a minuscule recovery. Thus, the class action device protects against corporate activity that would cheat individual consumers out of small amounts.

Before a case that has been filed as a class action, like Mr. Waldman’s, can proceed, however, the court must determine whether it should proceed as a class action. If the court determines the case should not be a class action, it will deny “certification” of a class of plaintiffs and the case, should it proceed, will have to proceed as an individual lawsuit. That, I contend, is what will likely happen to Mr. Waldman’s, and I’m not sure it’s worth his while to litigate against a behemoth like the owners of Westlaw for the relatively small recovery he’d win even should he prevail.

Why do i think the court likely will not find Waldman’s case suitable for class action treatment? Because determining whether a given document is even entitled to copyright protection in the first place requires close scrutiny of the individual document. A huge number (arguably the vast majority) of legal documents are pastiches of other documents; many are purely formulaic. The less original a document is, the less likely it will be deemed worthy of copyright protection.

In short, determining whether Westlaw infringes the copyright on a specific legal document requires inquiry into the nature of that specific document. Examination of every document created by lawyers and published by Westlaw is precisely the kind of individualized, exhaustive procedure the class action is designed to make unnecessary. If that individualized inquiry is necessary, the case will not be certified as a class action.

Accordingly, the only way Mr. Waldman is likely to prevail on his claims is if he’s willing to go it alone and establish both that his documents are entitled to copyright protection and that Westlaw’s activities are an infringement of those copyrights.

Woody Guthrie on copyright: we wrote it, that’s all we wanted to do.

Woody Guthrie’s view of copyright:

This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

The internet and mixing and matching texts is not destroying authorship, and to believe so is to misunderstand authorship. Kakutani this time.

“The Principle of collage is the central principal of all art in the Twentieth Century.” – Donald Barthelme

In a rambling and incoherent diatribe in yesterday’s New York Times, Michiko Kakutani mixes and matches wildly disparate issues and controversies in what purports to be an effort to address “the contentious issues of copyright, intellectual property and plagiarism that have become prominent in a world in which the Internet makes copying and recycling as simple as pressing a couple of buttons.”

While Ms. Kakutani’s piece defies any effort to identify, much less analyze and criticize, any single thesis (or even a manageable number of theses), I cannot leave unchallenged her following contention:

As John Updike pointed out, . . .   ‘the end of authorship’ — hobbling writers’ ability to earn a living from their published works, while at the same time removing a sense of both recognition and accountability from their creations — would result from the hypothetical possibility that “books would cease to be individual works but would be scanned and digitized into one great, big continuous text that could be ‘unraveled into single pages’ or ‘reduced further, into snippets of a page,’ which readers  . . . could then appropriate and remix, like bits of music, into new works of their own.”

As Martha Woodmansee, Peter Jaszi, and others have pointed out, Ms. Kakutani and Mr. Updike’s conceptions of “authorship” are narrow-minded  historical artifacts resulting from the efforts in the 18th Century of book publishers, not authors, to protect their economic interests  and of the conceptions of copyright law that those publishers managed to enact into law and that persist to this day.

The Case Western Reserve English Department’s Authorship Collective, building largely on the work of Professor Woodmansee, summarizes this history as follows:

An “author” in the modern sense is the creator of unique literary, or artistic, “works” the originality of which warrants their protection under laws of intellectual property — Anglo American “copyright” and European “authors’ rights.” This notion is so firmly established that it persists and flourishes even in the face of contrary experience. Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary.

This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique — in a word, “original” — work which, accordingly, may be said to be the property of its creator and to merit the law’s protection as such. [See Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’”; rpt. in Woodmansee, The Author, Art, and the Market, 35-55.

With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions — the recovery of marginalized creators and underappreciated forms of creative production — has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center — indeed, the linchpin — of Anglo-American copyright as well as of European “authors’ rights” is a thoroughly Romantic conception of authorship.  Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the “transformative” moment in the creative process.

We suggested above that cultural production necessarily draws upon previous creative accomplishments. For the better part of human history this derivative aspect of a new work was thought to contribute to, if not virtually to constitute, its value. Writers, like other artisans, considered their task to lie in the reworking of traditional materials according to principles and techniques preserved and handed down to them in rhetoric and poetics — the collective wisdom of their craft. In the event that they chanced to go beyond the state of the art, their innovation was ascribed to God, or later to Providence. Similarly, in the sphere of science, invention and discovery were viewed as essentially incremental — the inevitable outcome of a (collective) effort on the part of many individuals applying inherited methods and principles to the solution of shared problems.

It was not until the eighteenth century, and then chiefly in Western Europe, that an alternative vision of creative activity focusing on the endowments and accomplishments of the individual “genius” began to take shape. In a sharp departure from the self-understanding of writers of previous generations, authors in the new Romantic mode viewed their task as one of transforming the materials of personal sense experience through the operation of their unique, individual genius. This change of emphasis mystified the writing process, obscuring the reliance of these writers on the work of others. The notion that a technological or scientific breakthrough owes its existence to the “genius” — the unique creative abilities — of an individual inventor seems to be even more recent. It appears to date only to the third quarter of the nineteenth century.  Borrowed from literary discourse, this notion similarly obscures the collective or collaborative element in scientific invention and discovery. Both misrepresentations of creative activity appear to have fostered and been fostered by modern intellectual property law. Like copyright, modern patent emphasizes individual achievement — chiefly by rewarding the identification of a single genuinely transformative moment in what in most places through most of human history has been viewed as a collaborative because incremental and continuous process.

Cuckoo Kookabura — Culture as the Language of Art

I wrote in November of the claim by the owners of the copyright in the Australian chestnut Kookaburra Sits in the Old Gum Tree that Men at Work had infringed Kookabura’s copyright in their 1981 #1 hit Men Down Under. The claim is ridiculous. As the Sydney Morning Herald reported at the time, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But now, as Celebrity Justice (among others) reports, “[a]fter a 3 year fight, a federal court in Australia has ruled against favorite sons Men At Work saying they plagiarized one portion of the Kookaburra tune and will now owe some of their royalties to the publishing group who bought the rights to that song in 1990.”

As CNN reports, the judge in his decision wrote that “I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the ‘hook’ of that song.”

Whether the judge’s decision will withstand appeal under Australian copyright law is beyond my expertise, but the suggestion that the quotation of a copyrighted song in a new work constitutes copyright infringement would make a travesty of the notion of fair use under U.S. law. My zealousness on this question is not merely the result of the argument that I made in my November post — that the “transformative” nature of Men Down Under is proven by the way it alters the melody it takes from Kookabura and the failure of anyone to recognize the borrowing for 29 years. It is also because that being able to “quote” works that have resonance and meaning in our culture is fundamental to artistic creation. Kookabura is fundamental to Men Down Under as a song because Men Down Under, from its title to its performers to its lyric to its video is about Australia, and the use of a musical phrase from Kookabura is as resonant a way to convey Australia as there is.

Instead of recognizing what Lewis Hyde calls the “Cultural Commons,” many people have the knee-jerk impulse people have to identify cultural creations as “property” and thereby equate them to real estate or cars or something. Beside the rather large fact that property rights are limited in all sorts of ways in order to advance social goals (you can’t have a pig farm in the middle of a suburb, you can’t paint your house fuschia in most places, and the government can take your property if it pays you a fair (and rather low) price for it, etc.), that knee-jerk reaction entirely ignores how cultural creations draw (and must draw) on existing cultural creations, and how those creations then achieve meaning in the social sphere and are used to convey meaning in the social sphere. Copyright exists to feed, not hinder, creation, and the sooner we under what creativity really involves the more creative a culture we’ll have.

You be the judge: are Men at Work plagiarists or composers?

Cukoo Kookaburra copyright claim

In 1980, Men at Work released Down Under, and in 1981 it was a #1 song in Australia, Britain, and the U.S. In 2007, 26 years later, a game show contestant identified Kookaburra Sits in the Old Gum Tree as the nursery rhyme the song’s riff was based on. The contestant needed prompting. It’s no surprise he had trouble thinking about where the tune had come from. As the Sydney Morning Herald reports, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But that didn’t stop the copyright holder from suing Men at Work, despite the fact it had bought the rights to Kookaburra in the 1980s “when it bought them for $6100 from the family of its late composer, Toorak School teacher Marion Sinclair.” In fact, one of its managing director’s jobs was to track down unauthorized uses — it’s a wonder he hasn’t yet gotten to the school chorus version below.

The mere fact the use went unnoticed for so long is itself, I think, evidence that its use in Down Under is fair use. If something is so transformed that it isn’t noticed even in a #1 hit, it must be transformative, right? I think Shepard Fairey’s Obama Hope poster is fair use for a similar reason — the photographer himself didn’t realize the poster was based on his own photograph. Copyright claims like the one against Men at Work pervert the very basis of so much we call creative. As the Morning Herald states, “The reuse of riffs is as old as rock’n'roll. And it’s a good thing, according to Martin Armiger, former member of the Sports and composer of music for The Secret Life of Us and Young Einstein. The 1955 hit Louie Louie by Richard Berry became the template for hundreds of songs including the Troggs’ Wild Thing and the Beatles’ Twist and Shout, he pointed out in his expert evidence for Men at Work and EMI.”

Or, as the KLF puts it, “Every Number One song ever written is only made up from bits from other songs.”

Ideas, originality, and copyright. Coldplay accused of infringement again.

One of these days we’ll learn what the KLF long ago tried to teach us about pop music: “Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality.”

Let’s get a basic point straight: copyright does not protect an idea. As the U.S. Copyright Office puts it: “Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section ‘What Works Are Protected.’”

So it may be true, as Consequence of Sound reports, that “just days after settling with Joe Satriani over plagiarism allegations, [Coldplay] is now being accused of copyright violations by UK musician Andy J. Gallagher for borrowing from Gallagher’s “Something Else” video with their video for ‘Strawberry Swing.’” But being accused of copyright violations and having those accusations deemed worthy of anything other than contempt are two entirely different things. As the Guardian explains, “there’s no doubt that [Gallagher's] and Coldplay’s music videos offer ‘an awful lot of similarities’. Or rather, one big similarity: they both show people interacting with animated chalk-boards.” And it may even be true that, as Gallagher complains, it seems “less than fair that [Coldplay's] video will win numerous awards and receive industry praise when [Gallagher's] director Owen Trevor had the idea the year before.”

But the answer is: so what? You cannot copyright the idea of a video involving people interacting with animated chalk-boards. As the producers of Coldplay’s video point out (pdf), the idea was hardly original with Gallagher. Nor do they claim originality; rather, they claim to have worked hard at making the Coldplay video:

We’re aware of those videos, and I don’t wish to denigrate them, but we thought there was more mileage in the technique than they had explored. We never claim to be original, just rigorous. So we wrote a story we thought would be entertaining and went about making it. It was a lot of hard work.

The specific video they produced may be original, but it hardly precludes anyone else from making videos involving people interacting with animated chalk boards.

Oregon Attorney General is rethinking his copyright claim; I’d advise him to back off.

In Oregon, there’s an interesting and seemingly misbegotten effort by the state’s attorney general to assert the right to enforce a copyright in the state’s official documents. As the Oregonian reports, “Oregon Attorney General John Kroger met with a group of journalists in July and pledged to review the state’s public records act to make sure that it’s working properly. Kroger told the group the work would take some time but that it is “very important for me to get this right.” The review was provoked by a law professor who has posted to a web site a scanned copy of the Attorney General’s Public Records and Meetings Manual on his web site. “But the attorney general sells the 326-page book for $25 a pop, mostly to law firms and other state agencies. Kroger’s spokesman, Tony Green, says that’s how the AG’s office makes back the cost of producing the book.”

I suspect the Attorney General’s review will result in the state taking no action. According to L. Ray Patterson and Craig Joyce, in “Monopolizing the Law: the Scope of Copyright Protection for Law Reports and Statutory Compilations,” 36 UCLA L. Rev. 719, 723 (1989), the U.S. Supreme Court in 1834 held that “opinions of the Court are not copyrightable, and that holding remains the law. Subsequent cases and the present copyright act reinforce and expand upon the point: the law, whether in court opinions or statutes, cannot be reduced to property through copyright, whether by individuals or by the government itself.” (footnotes omitted)

ADDENDUM: William Patry writes in his treatise on copyright, Patry on Copyright, Secton 4:59, that

[J]judges, legislators, and by extension all government employees are paid by the public for performing their duties. Having paid the salaries, the public is deemed to own the fruits of the employees’ labors, a kind of work for hire. To grant copyright to employees for works created in the course of performing their duties would result in double payment. Moreover, having received their salaries, government employees do not need the additional incentive that copyright provides; the same logic applies at the institutional level. (footnotes omitted)

The EFF surely wants Jammie Thomas not to settle at any price, while the RIAA, even though it won $1.92 from a jury, surely wants her to, likely for any price.

Mike Masnick of Techdirt reports that the RIAA is anxious to settle the case in which it won $1.92 million from Jammie Thomas-Rasset for illegally downloading 24 songs. As Masnick writes, the RIAA “seems to recognize that the insanity of the $1.92 million doesn’t do it any favors. Even the musicians whose music was part of the case are embarrassed by the amount. . . . the RIAA would love to settle the lawsuit for some lower amount so it can run around touting the ‘risks’of file sharing without having people laugh outloud when hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could be bought for $1 each.”

Masnick writes too that he’s been expecting Jammie Thomas to settle “but the longer this goes on, the more I wonder if she’s actually planning to fight on. If so, this could certainly represent a case to examine the statutory rates associated with copyright violations.”

Mike is more right than he may know. Any lawyer interested in challenging the constitutionality of the statutory penalties imposed by the Copyright Act would want to represent Jammie Thomas on this appeal. When a lawyer looks to challenge a law, if he’s got any sense he doesn’t challenge it via any case that happens to come up. He chooses a case that presents especially good facts for the challenge. The EFF would love to have Jammie Thomas appeal – no case involving a defendant found liable for illegal downloading would be a better vehicle for bringing the challenge to the statutory penalties.

When law doesn’t match up to reality, law loses – Connie Schultz makes an unworkable proposal.

I deeply admire Connie Schultz, but I think she was mistaken in her column yesterday that called for a change to federal copyright law that would give “news originators” the exclusive right to the news they report on their web sites for the first 24 hours after publication. The “remedies” to enforce this exclusive right would include (1) a requirement that online “aggregators” would have to “reimburse newspapers for ad revenues associated with their news reports” and (2) “injunctions” to “bar aggregators’ profiting from newspapers’ content for the first 24 hours after stories are posted.”

Ms. Schultz shows her desperation to save newspapers in calling for immediate action, implying that waiting even 6 months before enacting this law would be to wait too long.

There’s a lot wrong with this proposal I won’t go into right now with respect to the purposes of copyright law (h/t to Natalie Gauthier, on Twitter @nggautier). Here’s my problem with it merely in my capacity as a business advisor (as much a part of being a commercial lawyer as knowing the law). It’s utterly unworkable. An injunction against use is no remedy — to be effective, an injunction needs to be enforceable. How in the world is a newspaper going to enforce its exclusive right to a story against use by anyone anywhere in the world on the internet? Second, to whom do these rights and restrictions really apply? Who’s a news source? Am I when I publish something online based on my own research and thinking? When is what I publish my own research and thinking and when is it merely “aggregation.” And am I an aggregator, or just a unicellular organism floating in the vast oceans of the information and news available around the world? When would I cross the line?

It’s an utterly unworkable proposal.

I have a lot of sympathy for Ms. Schultz and her position. I’ve grown up worshiping journalists. (To be an adolescent leftist poseur back in the early ’70’s meant worshiping the New York Times and the Washington Post.) And, as my dad complains, there is a really profound problem in the loss of the check newspapers have traditionally provided with respect to local events.

But there’s no going back. Law is not going to stop the inevitable consequences of the change in technology we’re experiencing. I’m not suggesting we’re in for a wonderful new world. We’re losing a lot, and I share with Ms. Schultz the desire to save it all. But we’re not going to. We’re going to have new things. Here’s one, for example, courtesy of the artist Daniel Nolan (on Twitter @danielnolan). There’s been very little news out of Iran. What’s going on in the streets, if anything, is a matter of intense interest around the world, but newspapers have largely been rendered unable to report on events thanks to the moves of the Iranian regime. But yesterday I received a tweet from Dan that referred me to Andrew Sullivan’s blog that was reporting that instead of appearing in front of his supporters in person Mir-Hossein Mousavi “instead delivered a speech to his supporters via cell phone. The speech was then captured on camera by a demonstrator, uploaded to Facebook, picked up on Twitter, and delivered to you through this blog. And now it’s on YouTube.” As Dan put it on Twitter, “[i]f scoring at home, that’s Mousavi – cell phone – camera – facebook – twitter – blog – youtube. Now that’s an alternative info stream.”

I’m not suggesting that is the equivalent of haveing a foreign corresondent on scene (but there are no western jounralists in Tehran as far as I know), but it’s extraordinary. There have got to be better ways than Ms. Schultz’s ill-conceived proposal to make the transition to what the new technology makes available and what the new technology makes inevitable. The way is not going to be through a rather simple law. When law doesn’t match up with reality, law loses, but worse, so do we. Make intoxitants illegal, and our prisons become jammed with non-violent offenders. Don’t provide legal means to immigrants motivated to get here, and you end up with millions of undocumented residents. Outlaw abortion and you expose the poor to unregulated and unsafe medical procedures. Refuse to adapt the marketing of your product to new technologies, and engage in ineffective litigation that results in blatant injustice. . .

Google’s Library of Babel and its opponents.

Steven Shankland has written a good piece on the proposed settlement of the lawsuits over the Google Library Project; the proposed settlement is “now under review by Judge Denny Chin of the U.S. District Court for the Southern District of New York.”

Under the proposed settlement, the owners of copyrights in books would need to opt out of the project to prevent Google from including those books in its Library database, which is being compiled by scanning the libraries of several major insitutions around the world. As Shankland points out, “that means essentially that Google would be permitted to show content from in-copyright, out-of-print books and sell online copies of those books even without an explicit agreement with the books’ rightsholders.” Copyrighted, out-of-print books constitute approximately 70 percent of the books in the library collections Google is scanning, and that 70 percent includes the vast majority of “orphan works” in those libraries. Orphan works are works whose copyright holders cannot be identified, a common problem because there is no registry of copyrights and the authors of the books are not necessarily the copyright holders. Rather, the copyright holders might include unidentifiable heirs or even corporate entities that have gone through mergers, dissolutions, or other forms of corporate reorganization that make it difficult or impossible to identify the entity that currently owns the copyright.

Nevertheless, some authors continue to oppose the Google Library Project:

“Under the actual law, it is Google’s burden and not yours to ask you for permission and then fairly negotiate terms of contract acceptable to you personally, not jam some monstrosity down your throat,” said Lynn Chu, a literary agent with Writers’ Reps who also called the proposed settlement a “ripoff for authors” in a Wall Street Journal opinion piece.

As a business matter, I don’t understand the view Chu expresses, as I’ve previously written. Why would someone whose work is out-of-print not want that work accessible to the general public? And if that someone wants to keep his work in the obscurity resulting from being out-of-print and available only at some far off insitution’s library, he can always opt out. Chu says that the “actual law” requires Google to ask permission first, not for the copyright holder to deny permission, but the wonderful thing about contracts (and a settlement is a contract) is that they can be a means parties have of altering the rules that govern their relationships in the absence of agreement.

I’ve been a fan of the Google Library Project since it was announced in 2003. It promises to make available for search the collections of many of the greatest libraries in the world. Google will only be able to display brief snippets of works that are in print and under copyright, but even that access will make known to researchers the availability of sources they never otherwise would have been able to find. The Project is one of those endeavors that make the internet and the digitization of information truly revolutionary and magical. It would be a shame if copyright law founded on old technologies and the unfounded knee-jerk reactions of copyright holders (it’s mine, and that means you can’t do anything with it without my permission!) were to end up preventing the realization of revolutionary magic.

Finally, Shankland points out that there is concern over the settlement because it would give Google an advantage over competitors: “Microsoft, Amazon, or the Internet Archive . . . –without their own handy class-action settlement [--] would be have to try to seek such permission in advance from each rightsholder or risk copyright infringement litigation.” But if copyright holders and their representatives are willing to reach this settlement with Google there’s no reason to suppose they wouldn’t with Microsoft, Amazon, or the Internet Archive. Google’s competitive advantage is the result of its initiative and daring in starting the Project in the first place and developing technology (including new scanning technology) to make it truly possible. Advantages gained by daring and initiative should be rewarded by the law, not stymied.

People have always remixed their cultural artifacts; the internet has made them publishers.

Rene Kita has a terrific post on copyright law and “remix culture.” His point is that we’ve always engaged in remixing existing copyrighted works circulating in our culture, but the internet has transformed these perfectly typical activities into “published” works:

There’s the problem. People have grown up in a fair use zone where you could do anything with culture and they expect this to extend to their Internet living rooms, in which they typically converse with a few dozen friends. Funny Photoshop transformations of Brad Pitt’s face? Lawyers at your door. Insert ‘poops’ into that Britney Spears song? Lawyers again. Lose your house paying your defence lawyer.

You see, lawyers have this fictional creature known as The Consumer. That’s all of us, but stripped of any urge or ability to get creative. And then there is that other mythical monster called The Artist, who creates works from scratch – or gets hauled into courts for theft. Neither of these phantasms has anything to do with how human culture actually works.

Kita concludes that it is this misfit between the law and normal human activity that underlies the anger people feel at the tyrannical assertion of copyright:

This is why people are angry. Their normal modes of expression have been turned into a crime. They know they are only safe from prosecution because they are small fry – unless someone decides to make an example of you. Thus, any time you post some photoshoppery or a musical mash-up you risk having it summarily deleted and your account cancelled for criminal cultural activities.

Perhaps I do accept that there should be a way for creative artists to make a living with their craft, but if it comes at the cost of turning the rest of humanity into passive consumers, I say it is not worth it. We need a completely different way of showing our appreciation to artists.

How online video creators can make remixes, mashups, and other common online video genres.

American University Professors Pat Aufderheide and Peter Jaszi, have produced the video below in their capacity as principals in American University’s Center for Social Media and AU’s Program on Information Justice and Intellectual Property. The video was produced in collaboration with Stanford Law School’s Fair Use Project, and explains how online video creators can make remixes, mashups, and other common online video genres with the knowledge that they are staying within copyright law.  (Professor Jaszi happens to be a favorite scholar of mine.)

Lessig’s Conversation of Remix – fair use? Warner Music doesn’t think so.

Lawrence Lessig’s lecture on remix culture, posted to YouTube, was the subject of a DMCA takedown notice by Warner Music. As Lessig explains, “Apparently, YouTube’s content-ID algorithm had found music in the video that they claimed ownership to.” The uploader’s protest to the takedown notice was apparently successful, which reinstates the video while Google reviews the legitimacy of the fair use claim against Warner Music’s copyright infringement claim.  Lessig’s blog post, along with the entirety of his lecture, is here.  Below is the segement that was blocked and is, for now, restored:

Here’s more on DJ Danger Mouse’s Grey Album. And more on Girl Talk here, here, and here.