If This Isn't Fair Use, Nothing Is

When I went to law school, my intention was to help writers, photographers, painters, and other individual artists protect themselves against the looming corporations which attempt to steal copyrights from those who create work.

Much to my surprise, I've just found a case where I would happily take on a corporation as a client.

Sony has been sued by Faulkner Literary Rights, which controls the literary material created by William Faulkner. What happened? Sony released Midnight in Paris, a delightful little film by Woody Allen. Possibly the first one I've enjoyed since Manhattan.  And what is the connection between Midnight in Paris and Faulkner? Owen Wilson quotes two short lines from Requiem for a Nun: "The past is never dead. It's not even past." Nine words and they are attributed to Faulkner in the dialog. "You know who said that? Faulkner. And I met him, too."

Section 107 of the Copyright Act of 1976 (as amended) sets out the standards for fair use:

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

If there was ever a clear case of fair use in copyright law, this is it. The amount taken was used in another artistic work, with attribution. The original work was a literary work and the new work was a 2 hour motion picture. The amount taken was miniscule. I see no possible effect on the potential market for or value of the original work, though I must confess I might want to read Requiem for a Nun because of it. I think the sentiment is spot on (especially as I see racism rearing its ugly head everywhere these days.)

I am happy to see that Sony is already characterizing this as frivolous. If I were counsel for Sony, I'd be demanding sanctions against the law firm. To be fair, Mississippi is not a hot-bed of copyright litigation, so it may be the law firm is simply out of it's depth. That's why lawyers are supposed to investigate their claims and research the law before filing suit.

I was once at a conference where Ralph Oman, then the Register of Copyrights, said that the office had a rule of thumb that it took 15 words before things were considered copyrightable. While a copyright covers the whole of a work and all of its parts, this is really an attempt to shut down fair use.  It is (and should be) virtually impossible to hang an infringement claim on the use of nine words from a short-story, speech, or novel. You might be able to get away with it if we were talking about haiku, I suppose, and a music publisher would be all over it if we were talking about song lyrics. But we aren't.

I'll be following the case, but I really hope that it dies a quick death.

Internet Piracy Never Quits

The trouble with copyright pirates is they just don't go away. They come at you from all kinds of places, thinking that they can get away with what they are doing a disappear. The Internet makes it easy to destroy the value of copyrighted work, something you've created and should be able to benefit from, and makes enforcement of your copyrights very difficult.

A friend alerted me to a new site promoting copyright infringement which calls itself a "library" and claims, because it is in Canada, that what they are doing is perfect legal and they can continue to do it. They claim, rightly, that they are not bound by the Digital Millennium Copyright Act, but they would not be protected by it anyway if they were in the U.S. because they are not a service provider or ISP. They are a destination website, earning money by, it appears, advertising, and making current and not so current work available for download. While encouraging others to upload digital copies of books.

I have an iPad I love. I am married to a writer. Many of my best friends are working writers. They've earned the right to royalties for the works they create. I pay for the books I download. Happily. Using this site is the same thing as shoplifting a book from a store. It is theft.

If you are creator of intellectual property, you should be concerned about the mentality of these thieves. While I am not a Canadian lawyer, I do believe that Canada does adhere to the Berne Convention and there is probably recourse against the individual(s) who are doing this. If you are an author, you might want to check out their growing collection at this website and take action. Isn't it lovely that they take donations via Paypal?

They also have a Facebook page, but if you call them out for the thieves that they are, they will use that to harass your account. Here is the Facebook page.

Dealing with Internet piracy is like playing whack-a-mole. I did it for almost three years as the lawyer for the Science Fiction Writers of America and for Harlan Ellison. I have friends who have found putting work up for free can increase sales, but they are choosing to share their work, and that is not the same thing as having it taken without permission.

If you know an author, let them know this is happening and they should try to get their publishers to do something. Unlike 12 years ago, there are plenty of legitimate ways to get this material, so publishers are probably a lot more concerned about losing digital income than they were when I contacted them back then.

Litigation v. Arbitration

Photo District News ran an article this morning about a Los Angeles based photographer named David Strick who is caught between a rock and a hard place in his attempts to sue The Los Angeles Times for copyright infringement.

The facts, according to the article, are that for a number of years Mr. Strick had a contract with the Times to provide photographs from various entertainment productions which would be used around the time the productions were released. The contract ended, Mr. Strick's lawyer told the Times they could not use the images that had been sent to them by FTP after the contract terminated. The photographs were used. Mr. Strick sued for copyright infringement, but the Federal District Court for the Central District of California in Los Angeles dismissed the case because of an arbitration clause in the contract. Then Mr. Strick's arbitration claim was dismissed because he had failed to file for arbitration within a 90 day window after the precipitating event, as specified by the arbitration rules.

For as long as I was an active member of the American Society of Magazine Photographers, and probably even now, the ASMP sample contract forms specified arbitration as the means of dispute resolution between photographers and clients for most complaints. I believe the same held true for the Graphic Artists Guild forms as well, and for many of the generic forms available to photographers and artists.

As soon as I saw the results of this language in practice as a lawyer, I changed my forms and advised my clients to do the same thing. Arbitration, especially if you can specify using an organization like the California Lawyers for the Arts, can be a useful means of dispute resolution sometimes. But it has become a huge barrier for most artists, especially those who live in California, where an arbitration/mediation component is part of almost every legal proceeding anyway and private arbitration becomes far more expensive than that used during the course of regular litigation, as Mr. Strick learned. Mr. Strick was required to use JAMS, which, apparently, was specified by the Times contract. His costs to get to his arbitration dismissed on a technicality were $20,000 in shared arbitration costs. Ugh.

Mr. Strick describes himself as the less powerful party to the contract, and that's no doubt true. He did have the power to say "no" to the terms and walk away. I do suspect that his access to the subject matter was a reason he got the gig in the first place, so maybe "no" would have turned in his favor. Most photographers (and frankly, other creators) I've known in my life are so insecure that they are afraid to use that word. The people I know who have used it are generally the most successful.

Mr. Strick's predicament shows the biggest flaw in agreeing to arbitration: you will be held to it, even when, as in copyright infringement, you have denied yourself some really important remedies (statutory damages &  attorneys fees to the prevailing party if copyright formalities have been followed.) Copyright infringement has a 3-year statute of limitations from the time that Mr. Strick learned of the infringement. The 90-day window of the arbitration agreement is unusually short, and if Mr. Strick had been out of the country, for example, and did not learn of the infringement until a year later, he no doubt would have been similarly barred from relief.

A court will look at a contract and assume that all parties are on an even playing field. In fact, they usually are not and the big corporation has an extremely unfair advantage over an individual. There have been cases where arbitration clauses are thrown out by the courts as coercive and this one appears to thwart the interests of justice. But Mr. Strick isn't a consumer, he's a business, and he should have paid more attention to the paperwork. He may be very right that this would not have happened if the people who initially brought him in for this work were still with the Times, but they are not, and contracts should be written with that anticipation.

Litigation is no fun and should be avoided if at all possible. But you need to protect yourself for the worst-case scenario. Review the terms of your own paperwork carefully and give careful thought to removing language about arbitration for dispute resolution. Or perhaps you should consider making arbitration the choice for contractual disputes or for below a certain monetary limit of damages but leave litigation as the forum for copyright infringement (sometimes courts have a hard time parsing that one, you should be warned.) Even filing an arbitration dispute can be much more expensive than filing a lawsuit. Remember that if you file in California, you will probably see some kind of alternative dispute resolution inserted into the process (if you are lucky, the matter will settle there) and you won't have to pay for a court appointed arbitrator or mediator out of pocket like you will if you start with JAMS.

If you are in love with arbitration or mediation anyway, try to specify California Lawyers for the Arts as your dispute resolution organization. It will certainly be cheaper and faster than JAMS and the arbitrators may actually know something about the business of photography or the other arts.

Copywriting v. Registering a Copyright

Copywriting is what people in advertising do. Registering a copyright is what creators do to establish certain valuable remedies (including damages) for the infringement of their work.

I'd like to clarify this, because it is a constant source of misspeak when I give lectures or appear on panels. A copyright subsists from the moment a work is put in some permanent form in which it can be seen, read, perceived or otherwise experienced by others. With a photograph, either digital or analog, that moment arguably is at the point when the shutter is released. There is still a difference between a published work and an unpublished work, but, make no mistake, putting it up on a website is publishing these days.

There are specific forms for the registration of copyrights, depending on the form of literary, visual, or performance art to be registered. The Copyright Office has an excellent website to guide a novice registrant and provide the appropriate forms needed. Check it out here.

Photographers generally use form VA for registering physical copies or use an electronic registration process, which I understand is fairly slow and frustratingly old technology. My only experience with it found it so and I just finished reading comments gathered by the American Society of Media Photographers (ASMP) for submission to the Copyright Office on its proposals for raising registration fees which support this impression.

ASMP has long been the leading organization working on behalf of photographers' rights. I spent two years on the ASMP national board of directors and chaired the Rights Committee after Richard Weisgrau, the long-time chair, left the board. ASMP has forged an excellent working relationship with the Copyright Office and members of Congress, and has earned a place at the table when copyright law is considered. Naturally, it has stepped up to present the concerns of photographers who face steep increases in registration fees if the new schedule goes into effect.

Photographers register more discrete works at one time than any other creators, and digital photography has increased this output. Protecting remedies to infringement by registering work in a timely fashion can be expensive, even with group registration. (As an aside, this is an issue that goes back to wet-plates, according to some old cases I have read.)

Because photographers need to distinguish between unpublished and published works when registering copyrights, I have recommended to clients that they set up a workflow that permits them to register all unpublished work created within a 60 day period and separately register all worked published within a 60 day period. They can be the same periods of time, but they must be registered separately.

The 60 day period is because a copyright registration that is made within 90 days of creation or first publication gives remedies for any infringement that occurs within that window prior to the actual day the  registration is made. 60 days gives the photographer a pretty good window to catch an early infringement.

Note: in the U.S. a copyright registration is necessary to gain access to the courthouse door. It is not necessary (but certainly helps) to establish copyright ownership. If a creator has not registered a work within the appropriate window, the creator cannot ask for statutory damages (currently as much as $150,000 per intentional infringement) or for attorneys' fees (which is usually the key to an attorney's services in an infringement.) More importantly, a timely registration is what stands between a quick settlement and expensive litigation which might not be worth the trouble if  "actual" (what a photographer might have charged for a licensing fee if asked in advance) rather than "statutory" damages are what will be the basis of determining loss.

A creator who fails to register copyrights in a timely manner will still have to register in order to gain access to the Federal Courts, which, currently, are the only courts of jurisdiction for infringement actions. Most of the time, if case is about the usage of a licensed image and the use made is greater than that of the contract, that case will end up in Federal Court rather than in a state court because a defendant will ask for removal with the hope the plaintiff hasn't made the appropriate registration. It is best to be ready for Federal Court at the onset. I have filed complaints where the client was in the process of getting their copyrights registered, which is disclosed in the papers filed. Some courts will permit matters to move forward, allowing the complaint to be amended when the certificate of registration is available, but this might not always be the case. There is a special form which must accompany a copyright complaint, which, I recall, asks for registration numbers.

At the last talk I did, the moderator asked for ways to protect works of authorship. Two offered were to register with the Writers Guild of America (WGA) or to send a copy of the work to yourself through the mail.

Neither of these methods register a copyright and neither will get you statutory damages or attorneys' fees. The WGA registration, which is actually touted as a way to protect ideas (copyright does not protect ideas, only expressions of ideas), is used to help establish first-in-time scripts or elements of screenplays. A timely copyright registration for a screenplay (make it before sending it out to readers) will do that as well, plus preserve those lovely remedies of statutory damages and attorneys' fees.

The other method, of mailing a copy of the work to yourself and putting it unopened in a drawer, is sometimes called "poor man's copyright." IT IS A WASTE OF TIME. I'm not even sure it was effective for anything under the 1909 Act, but it is totally ineffective under the 1976 Copyright Act. The 1976 Act eliminated all state-level copyright protection, established a term of copyright protection based on the life of the author (while a different time frame was established for "works made for hire"), and established the Federal Courts as the only venue to hear claims of copyright infringement.

One final note, in the not-so-distant past, creators relied on the copyright registration of a magazine or book to protect their individual contributions therein. Unless you are the only author of the book or magazine (unlikely), you must register the copyrights for your contributions separately to preserve your rights. If you are the only author of a book, you should, by contract, make sure that the copyright registration will be made on your behalf, in your name, by the publisher. If you make a contribution to a book which has works by a number of people in it, make sure your reserve your copyright rights in your contract with the publisher and make your own registration of the contributed works. If you provide work to a magazine, make sure you register your contributions as published works. If you were able to register your contributions as unpublished works originally, registering them again when they are published is a good business practice (though not entirely necessary.)

Questions?

Thoughts on Representation

I recently accepted an invitation to appear on a panel dealing with copyright and trademark issues for a local writers' organization. Four of the five panelists were lawyers, two of whom also said they were agents for writers. I think there is an inherent conflict of interest in that designation.

As a lawyer, I know my duty is to my client. I have to perform due diligence to make sure I do not have a conflict in representing an old client when I take on a new client. Disclosures must be made and releases sometimes need to be signed.

 An agent can, and frequently does, represent a number of clients who are looking for work (or contracts, in the case of a prose writer) in the same places. These clients are, in essence, competing against each other. 

An agent, by definition, is supposed to be working on behalf of his or her principal and, in law school, I thought I was taught there were fiduciary duties involved in that relationship. Now, I am not so sure agents see it that way. While I think that the agent does have a fiduciary duty to the writer or photographer or artist he or she represents, I have heard too many stories of creators whose agents failed to send on royalty payments or who inserted clauses into contracts which benefited the agent but which were no benefit to the creator. A lawyer should bring independent eyes to a contract review, and know that duty lies not to him or her self, but to the client.

Back in the day when I was a full-time photographer (and never had an agent except for stock work which was a 50/50 split), photographers' agents might represent non-competing photographers, such as a fashion photographer and an architectural photographer.  But many agents worked exclusively with a single photographer, earning a commission on the order of 35%. (To be fair, a lot of the time a photographer's agent was often the photographer's spouse and I always thought that having an agent taking 35% was like being married to someone without the benefits.)

Book agents, by comparison, worked with many writers and took a commission of 10% (now the usual fee is 15%.)  Legitimate television and film agents, because they are in the business of "procuring employment" are still limited by law in California to 10%, but large agencies can circumvent this by "packaging" a project, where they are allow to commission at a higher rate against the project, but cannot then take a commission against individual talents.

Here in Hollywood, there are people called "managers" who are unregulated as to what they do and how much money they can charge for commissions. They are not supposed to be "procuring employment" but many of them do just that. They also charge 15% and up for what they do.

I've heard tales of people who call themselves "agents" and then change the designation to "manager" or, worse, say they are "producers" and really screw over writers who are hoping to make an impact in Hollywood. I call them barnacles, a term of art I learned at some MCLE program or another. You do not get to change your title mid-stream. You do not get to attach yourself to a project and kill it for your principal if you don't get what you want for yourself.

Lawyers are highly regulated and licensed. Agents who "procure employment" for talent are also regulated and licensed. Managers have fought tooth and nail to avoid any kind of licensing or regulation. Literary agents, meaning those who represent prose writers, and artists' agents do not appear to be licensed beyond having a business license wherever they set up shop, although I know that there is are some trade associations for them. I've known some good and honorable agents. I've also been told tales of horrible agents. And my friends Victoria Strauss and Ann Crispin have spent decades watching and reporting on the scammers out there, who steal money and dreams from aspiring writers. (Check out Writer Beware to see the good work they do.)

There is something about a lawyer claiming simultaneously to be an agent that makes me very uncomfortable. I've been in the position of negotiating (and getting) points in a contract that the agent for our mutual client refused to take up because it might affect some other deal they had in the works. This is not a good thing, and if the lawyer and agent were the same person, it could lead to a malpractice claim down the line. Malpractice is my worst nightmare.

So, if you are in the market for a lawyer or an agent or even a manager, don't look for one in the phone book. Do some investigating before you sign any agreement with any representation. Use the Internet. Ask for references. Talk to some of their other clients. Remember, it's likely to be a relationship like a marriage without the benefits.