F/8 and Beware

Rights Grab

2010-07-15T16:16:00.000-07:00

I got an interesting e-mail recently at work. I share it with you. It is something to keep in mind. There should always be some sort of consideration for amending a contract, and it can't be done unilaterally. Many publishers are giving expansive readings to their own contracts, to the detriment of authors. Writer (and artist) beware:

The information in this email is being sent on behalf of the National Writers Union. The AAUP is supportive of the work of the National Writers Union (NWU) and has partnered with the NWU on issues of common interest to our members. The AAUP is not providing any legal assessment or advice related to e-book contract amendments and is not responsible for the legal advice provided by NWU in this message.

Message from the National Writers Union About E-Book Contract Amendments

With e-books starting to surge, many publishers are asking textbook and trade book authors to amend their existing contracts to include e-book and other electronic rights. If you receive such an amendment from any publisher, please don’t sign it before you read the National Writers Union’s primer on e-book amendments.

It’s important to remember that you are under no obligation to sign an amendment to an existing contract. You should only sign an amendment if you get the terms you want. If you don't agree to a proposed amendment, the original contract remains in force. So, take your time and negotiate the best deal you can.

As negotiating an amendment or a contract can be an intimidating proposition, be sure to check out the NWU’s Negotiating Contracts over the Phone primer beforehand. This document is filled with useful information that will help you negotiate from a position of strength.

The National Writers Union provides free book contract advice and grievance assistance to our members, many of whom are academics. To learn more about the NWU, check out our website at https://nwu.org/.

If you have any questions or concerns about a book contract and/or an e-book amendment, please contact us at advice@nwu.org.

E-books present tremendous opportunities for academic authors, but only if you are fairly compensated for your work.

Paul J. MacArthur
Assistant National Contract Advisor
Vice President of External Organizing
National Writers Union
pmacarthur@nwu.org

Wannabe Writer v. Avatar

2010-05-19T08:40:00.001-07:00

I had a couple of calls from people seeking legal advice before Avatar was released. I told them all I no longer litigate (true), but the last thing I wanted to be involved in was something as silly as this law suit which has been filed. The book has never been published and sounds like what my friends in publishing call a "Mary Sue." I'm sure that if the manuscript ever hit a slush pile, it would be used in a late-night, read-out-loud session at a science fiction convention, which is what happens to really bad manuscripts.

There are legitimate cases where work has been stolen and the plaintiff prevails. The Northern Exposure case won by Glen Kulik always comes to mind. And Harlan Ellison had a famous run-in with James Cameron over Terminator (Cameron made an admission against interest which led to it, I hear. It was years before Harlan was my client.) Harlan also went up against Paramount over a short-lived TV series called Brillo, which I hear led to a billboard near Paramount for a while (again, before he was my client.)

I once had someone from Eastern Europe call me to say that a disaster movie had been stolen from him. His English was not good enough for me to believe that had happened. Actually, several times I've gotten inquiries about what would be a theft of idea case where I didn't think the caller had the language skills to have written a screenplay or novel that anyone would have (a) read or (b) stolen. (If this sounds a little elitist or arrogant, I'm married to a very successful writer and wordsmith--an "old god" of his field--and I have spent time with many, many famous writers. I also spent time working in publishing. I know the difference between good and god-awful.)

Most of the time, the plaintiff is working on a theft of idea theory--somehow their idea or work got into the hands of someone who then used it as the basis of a movie. The plaintiff would not have given it away without expectation of payment. These claims of quasi-contract only have a chance of working in California. It's a claim under state law, and most states won't recognize it.

Copyright does not protect ideas, only expression. If a substantial amount of the "idea" has been expressed in writing--an outline, a treatment, or a draft of a screenplay--the first thing a studio which is hit with a theft of idea case will try to do is kick it from state court to Federal Court as a copyright claim. If the plaintiff hasn't registered the copyright to the work, it puts them behind the eight ball at the start and severely limits plaintiff's damages.

The next step in the plaintiff's case is going to be to show access and substantial similarity between plaintiff's work and the alleged infringing work. And defendants don't get off the hook by showing how much they changed from the original. There is no magic percentage of change that makes it original, no matter what you have heard.

Access such as having a meeting with the producer who produced the infringing work and submission of plaintiff's work is pretty darned good potential access (which is why most places won't even look at work that's submitted cold without getting a waiver from the writer.) The similarity becomes the big hurtle. There are experts who do detailed analysis and charts to present evidence of similarity or lack thereof.

In a science fiction or fantasy work, traveling to a new world with strange new creatures is endemic to the genre. There are hundreds of tropes in these genres. Space ships, winged aliens, elongated, aliens of different colors, military invasions, mining (even Star Wars had a mining planet) etc., etc., etc. The stranger in a strange land concept goes back to the Bible and probably beyond (the phrase comes from the Bible.) Using any or all of these concepts doesn't get you to copyright infringement. Things have to be a lot more specific and it is even better if chucks of dialogue are identical (and not just because that's what anyone would say under certain circumstances.)

I haven't seen Avatar, which is strange considering my background. But I'm not a Cameron fan and, while I think this lawsuit is bogus, there are plenty of other sources from which Cameron probably stole his ideas. But he's allowed to steal the ideas, just not the expression. Even people who are as turned off by his poor dialogue as I am say it is the visuals that make the film and he did a great job with them.

Among the material I've seen people cite as source material for Avatar's plot and other elements are Dances with Wolves, Pocahontas and Ursula K. LeGuin's Earthsea stories. When I finally get around to watching it, I may have some suggestions to add.

I expect that this lawsuit is going to get thrown out at the motion stage. With a bit of luck, the judge may even sanction the law firm if this is as frivolous as it looks at first glance. I'm having a hard time reading the complaint without laughing.

WB v. Superman's Lawyer

2010-05-17T09:28:00.000-07:00

I doubt that I would have been contacted by the Siegel & Shuster families when my article "Truth Justice & the American Way" appeared in L.A. Lawyer Magazine in 1996 if some of the allegations in the law suit against Marc Toberoff are true. There are things in the opening paragraphs of the complaint, which you can read here, that don't sound like what I learned when I was doing my research for the article or the law school paper that preceded it in 1992.

It will be very chilling if lawyers can be sued personally for taking on a legitimate case (which the Siegels did have for the renewal rights.) And I find it annoying that the complaint waxes eloquently about how well DC Comics/WB took care of the Siegels and Shusters when anyone in the comic book industry can tell tales to the contrary for a huge part of the 70 plus years of Superman's existence. Paul Levitz did a lot to improve the financial position of many of the older, pre-equity creators, but there were a lot of years before he ran the company.

And, contrary to the allegations in the complaints, Siegel and Shuster used every legal opportunity they had to attempt to regain control of the Superman empire. The various suits are a matter of public record. Both Siegel and Shuster died before the window for reclaiming works created under the 1909 Copyright Act which was written into the 1976 Copyright Act opened. That opportunity was described in a side-bar in my article. The Siegel heirs (widow and daughter and grandchildren) had that right. The complaint correctly notes that Joe Shuster left neither widow nor offspring, so I don't know what was done to include the Shuster heirs (sister and nephew, I think) in the matter.

I will certainly be watching this closely. Mr. Toberoff, I hear, is also representing the family of Jack Kirby against Marvel, and some of those properties have a direct bearing on my husband's Marvel creations.

Fairey's New Hope

2009-11-12T08:20:00.000-08:00

Here's an article about Shepard Fairey's changing lawyers in his case about his copyright infringement of a photograph to create the poster of Barack Obama called "Hope."

His new lawyer from Jones, Day (the largest law firm in Cleveland, and one of the largest in the world--I cannot figure out why they've even taken this case since they are a corporation-side law firm) says that one of the ways Fairey can win is "fair use." This is so not fair use.

Fairey took the whole of the work.

Applying a posterizing filter in Photoshop is so not transformative.

He's denied the photographer (and there is still an issue about whether the photograph is AP's property or the original, freelance photographers--C.C.N.V. v. Reid says it's the photographer, not AP that owns the image) the right to make that own derivative work.

Whether or not he's made money for this, his lawyers better take a close look at Rogers v. Koons, which also says this isn't fair use and any money is going to go to the photographer (or AP, if it does turn out AP owns the image.) In the Rogers' case, Jeff Koons took a greeting card with Rogers' photograph of two people holding a litter of puppies, ripped off the copyright notice, sent the photo to artisans in Italy who fabricated a statue of the images--I think nine of them were made--and Koons then sold them at over six-figures a pop, because he is "an artist.') (Koons has also been sued by--and lost to--Jim Davis for doing a statue of Odie from "Garfield." Some people never learn.)

Fairey's poster is an unauthorized derivative work of this photograph, just as the Koons statue was. I think that the judge should have made that ruling on a motion and saved a lot of people a whole lot of money and labor in legal fees. I had a case where the judge pulled in all of the parties--including insurance companies who'd be doing the payout--and told us all the case was about money and there was a price that would make it all go away. He was right. While the insurance defense firm was royally pissed that the parties could do this, it worked out well for everyone else.

Jones, Day is the same law firm that represented the Rock & Roll Hall of Fame against a photographer who made a poster from his shot of the building at sunset--which is, by the way, a fair use--claiming that it was a violation of the Rock Hall's trademark rights in the building. While the trial judge in Cleveland took that hook, line, and sinker, the Sixth Circuit saw right through what had happened (Jones, Day could say what ever it wanted to in Cleveland with no law to back it up against a misguided photographer who represented himself at the hearing) and ruled that because the Rock Hall had no standing to sue on the basis that the photograph infringed on their copyright (the copyright to a building actually rests with the architect and anyone can photograph a building from a public place and not infringe that copyright--as the law clearly says) the lawyers stretched to find a trademark right in every image of the building, which does not exist. It was a nice ruling for the photographer.

You'd think that Jones, Day would have lawyers who know more about copyright than to take this case thinking they can win under the argument of "fair use."

Jeopardy Home Town Howdee

2009-10-26T09:08:00.000-07:00

Jeopardy! has put up this week's "Home Town Howdees" here. See me immortalized making funny faces. Remember to watch the show tonight!

Real Fair Use

2009-10-06T15:12:00.000-07:00

I collect litigated art for the talks I give about copyright and artists rights, and, in preparation for a talk I'm giving next week, a peachy one has just crossed my desk.

I do not normally agree with Cory Doctorow about copyright issues. He's firmly in the camp of "information wants to be free" which I find at odds with his other job of being a science fiction writer. Cory was on the board of directors of the Science Fiction Writers of America when I first was hired as their attorney, so we've had some dealings over the years. He's a very smart and personable gentleman, even if I don't agree with most of the positions of the Electronic Frontier Foundation or those he propounds on Boing Boing.

This time, though, Cory and Boing Boing are absolutely in the right. They've reproduced a photograph of an impossibly thin model in a Ralph Lauren ad, which you can see here and read about on the Huffington Post. Boing Boing's been hit with a cease and desist letter from Ralph Lauren's lawyers claiming copyright infringement.

This doesn't pass the smell test, or the giggle test, as the blog pointed out. While I get a lot of queries about fair use, most of them involve situations where some schmuck wants to use work without paying for it. This is not that kind of a case. The photograph was reproduced under one of the clearest cases of fair use I've ever seen--commentary on the photograph itself. I think it was originally reproduced in Photoshop Disasters, one of the funniest blogs anywhere, especially if you work with Photoshop (as every photographer today does.)

As pointed out elsewhere, the model in the Lauren ad has a head which is bigger than her pelvis. Last time I looked, that's more than a bit out of proportion. I find her legs to be absurdly thin--rather like Laura Flynn Boyle's walking skeleton the night that David E. Kelley was honored for his legal series at the Television Academy. I could not believe that people complained about Callista Flockhart when Ms. Boyle looked like she had not 1% body fat and legs that looked like toothpicks in her leather pants. (This was my impression from my view about three feet away at the reception that night.)

The model looks awful. Kudos to Cory for pointing this out. I'll handle the case against Ralph Lauren if Cory needs it, which is not an offer I make lightly. Lauren's high powered law firm should have advised him that this is a no-win situation. (Which is what I will tell them if they bother me with one of their C&Ds now that I've had my teaching moment about litigated art.)

And someone should set up a fund to feed this girl.

What's Really Wrong with the Google "Settlement"

2009-09-11T10:59:00.000-07:00

I've just been reading Register of Copyrights Marybeth Peters' statement to the Judiciary Committee on the Google Book Settlement. You can, and should, read it here, especially if you have or contemplate having works in print. This involves Google's plan to illegally digitize every book, in or out of print, it can lay its hands on through major library collections, particularly those at colleges and universities. (As I recall, my college library didn't have much of a fiction or comic book collection, but these things change and at least some colleges have huge collections of graphic novels or the papers of science fiction writers.)

I opted out of the settlement for myself and the spousal unit a couple of weeks ago. I have long believed that requiring me to opt out, rather than requiring Google, Amazon, or other similar profit-making entities to individually contact and negotiate with a copyright owner AS THE LAW REQUIRES is an abomination. I am very happy to do it in this case because I can chose to sue them at any time I find they have ignored my wishes. Based on the number of other people I know who have opted out, this should make the company aware that lawsuits loom on the horizon. Finding out that Marybeth Peters believes the settlement usurps Congress' Constitutional right to make law related to copyright makes me do the dance of joy.

If you haven't opted out of the Google settlement, it may now be too late. But it probably isn't too late to let your Congressperson know that you object to the courts stepping in and depriving you of your control over your copyrights. How many of you with published works got a notice of this? If you aren't a member of a creators' trade association, I'll bet it has slipped you right by. I recommend you look into joining ASMP, APA, GAG, SFWA, the Authors Guild or another, similar, group so you won't be left out in the dark.

Even Successful Artists Make Big Mistakes

2009-08-07T12:22:00.000-07:00

The mind boggles. Annie Liebovitz is in danger of losing the rights to her photographs because of a $24 million loan she took out last year. She's also in danger of losing several homes or buildings she owns, but that's of less concern to me than the issue of her copyrights. Here's the story. And another one here.

I was a professional photographer, and I'll tell you I felt under-capitalized the whole time I worked full-time, but I can't begin to figure out how someone gets to be $24 million in debt as a working photographer. Yes, start up costs are considerable higher than they were when I started out, but Annie started out a few years before I did, when the most expensive Nikon body was less than $600 new and a couple of good cameras and lenses would put you in business. She had the good fortune to hook up with Rolling Stone, and the rest is history.

I started following Annie's career around 1974 when Peterson's published a book about her and Mary Ellen Mark. My own work is based in portraiture for magazines, books, newspapers, corporate communications, and advertising, so I looked to her as a role model. I met her once, many years ago, and I have the greatest respect for her as a working photographer. Greg Heisler once said "if you want to be a famous photographer, photograph famous people." It is absolutely true, as both he and Annie prove and it certainly helped my own career to do celebrity portraits during my stint as a freelancer for the Washington Post. Art directors remembered those portraits for years after they appeared and they stopped people in their tracks when they'd walk into my office where I had a number of them hanging.

I would doubt that she had the same troubles I did getting advances on fees and expenses from her corporate or advertising clients, but maybe that is exactly where the troubles came from. If you are doing these huge production shoots, but you are expected to front the costs for assistants, models, stylists, props, travel, food, etc., those costs can start climbing really quickly and waiting 60-180 days for payment can put a real crimp in your finances. But $24 million? Wow.

Even if the buildings she owned in New York or the outlying areas were money pits, you'd think she'd cut her losses before it got so outrageous. Maybe the buildings or houses are worth far less because of the housing crash. That's possible, but the reported value of the homes doesn't come close to explaining $24 million.

Maybe it's medical related. If you look at the familial issues of the last 9 years in her life, maybe some of that factors in. Having a child after the age of 50 is no cheap thing in a world where Viagra is covered by insurance but women's fertility issues aren't. Plus her twins were carried by a surrogate. Was she supporting her extended family and over-extended herself?

She did have an admitted drug problem back in her younger days, but I was under the impression that was long gone. If it wasn't, $24 million sounds like a whole lot more than a drug dealer would let build up before taking action, so I doubt that's the reason she needed to borrow that much money.

Maybe she ran up legal bills with the fight against Naked Gun 33 1/3 for copyright infringement of her famous pregnant Demi Moore photograph. I think that the court came to the wrong conclusion--the Fair Use analysis was faulty--but she'd still have to pay lawyers (or at least expenses) after losing the case. But again, $24 million?

No matter how famous she is, I can't believe that even her celebrity status would be enough to encourage a reputable lending institution to place that great a value on her archive as collateral for a loan. If it does, I have a wonderful archive of writer's portraits I'd like to leverage to buy a bigger house. I need about $900,000 and the lender will have to honor the model releases. Some of the most famous writers are no longer with us and the images are ones they really liked (and have appeared on book jackets.)

If I were Annie, I'd be heading for a bankruptcy attorney immediately. At least that way she'd probably still have one roof over her head and the tools of her trade. While I'm not a bankruptcy attorney, I know that there's something called a "homesteader's exemption"--or at least there used to be-- which protects those things. The copyrights are more problematic. They certainly are assets and they do figure in whatever loan Annie took out. This is a sophisticated lender who knows the value of the archive, so it's definitely going to be brought into the petition. I'd like to think that there's room for negotiation here. The lender believes the assets are worth twice the value of the loan, so it's quite possible a good lawyer will be able to negotiate a happy solution.

I'd also recommend that Annie contact someone like ASMP's former Executive Director, Dick Weisgrau, to work on fixing her business practices. This is a situation that got way out of hand, but is not atypical of the left-brain, right-brain skills dichotomy of an artistic person versus a business person. The most successful photographers I've known had a really good handle on the business they ran, but some of the most creative didn't.

I wish Annie nothing but the best and I hope she extricates herself from this to move forward and continues to make great pictures. But I hope she does it with better business advisers.

DMCA in the S.D. of New York

2009-07-07T13:09:00.000-07:00

My friend Lisa Jane has been disappointed that I haven't written on this blog for a while. To her I apologize, but there hasn't been a lot of time lately. I did see something today that made me do the happy dance. It's reported on here and here. It's an R.I.A.A. case, Arista Records v. Usenet.com.

The ruling is on the use of the Digital Millennium Copyright Act (DMCA) safe-haven provisions and it is time for copyright owners to breathe a sigh of relief. First of all, it is in their favor. Second, it's in the Federal District Court for the Southern District New York, where a lot of copyright litigation takes place.

I'm looking forward to reading the actual ruling, but the bottom line is that Usenet.com got slammed for claiming what it was doing was protected by the safe haven when it did things like destroy evidence and encourage the use of the service to infringe on the copyrights of others.

When I represented Harlan Ellison against AOL, AOL claimed it was entitled to the safe haven because copyrighted material uploaded by others was only "in transit" on their servers (how the material sitting for weeks on AOL's servers constituted "in transit" was beyond me, but the trial court judge bought it.) Ultimately, Harlan prevailed in part because the Ninth Circuit believed that AOL did not hold up its end on what it needed to qualify for the safe haven (by keeping accurate information about its agent for service of notice of copyright infringement available on the Copyright Office website.) In part, that's what's bringing Usenet.com down here, but there is also the matter of the court recognizing that the material was residing on Usenet servers so other people could download it.

I am so glad to see a better understanding of the damage that the DMCA can cause copyright owners as time has passed. Harlan's first filing was in 2000, occurring pretty much at the same time as the Napster litigation. There was almost no support for what we were doing and individuals who should have seen what we were doing was in their best interests as well just didn't.

Not everything has been resolved by this ruling, and I'd lay money that it is appealed, so I'll be watching what happens. Probably with a big smile on my face. I think I'll look up Judge Harold Baer and see what his other rulings look like.

I Spoke Too Soon

2008-11-19T12:27:00.001-08:00

I got this nervous note from the Society of Illustrators via the Advertising Photographers of America, so take it as you will. I wasn't aware that the subcommittee, headed by Congressman Berman, was being abolished. Congressman Berman, long a friend to creators, wanted a different chairmanship this time out (as Marybeth Peters told me in January.)

Lots of bills get slipped by this way, and the Orphan Works Bill is bad news for individual creators (sorry, Howard):

Orphan Works Update: Congress has reconvened today.

11.19.08

They're scheduled to be in session until Friday, although that could change. And although sponsors of the Orphan Works bill say publicly that it won't come up, sources have told us they'll try to use the lame duck session to pass it by means of another back room deal.

Currently the situation in Washington is fluid, but if deals are being made, they'll be made before the bill is placed on the Suspensions calendar. Then they'll try to pass it immediately. How we respond will depend on developments. But while we keep watch, consider this news from the National Journal, Nov. 12, 2008:

Conyers To Abolish IP Subcommittee On Judiciary Panel
by Andrew Noyes

"House Judiciary Committee Chairman John Conyers will abolish the Subcommittee on Courts, the Internet, and Intellectual Property in the new Congress and instead keep intellectual property issues at the full committee level, a Judiciary aide told CongressDaily today."

This is the subcommittee that spawned the Orphan Works Act and placed it on the "Rocket Docket." Yet remember last spring, when those lobbying for this bill warned us that unless we accepted it - no matter how bad it was - that the next chairman of the Subcommittee would be a copyright foe and would pass a worse one? Well, now the Subcommittee itself won't exist. So much for urging artists to bet against themselves!

This bill is very controversial. It would strip ordinary citizens of their intellectual property rights without due process. This is no way to pass legislation that would radically change US property laws. The bill can be fixed, but there is no time to fix it in a lame duck session. Stay tuned.

- Brad Holland and Cynthia Turner, for the Board of the Illustrators' Partnership
______________________________________________________________

Over 80 organizations oppose this bill, representing over half a million creators.

U.S. Creators and the image-making public can email Congress through the Capwiz site: http://capwiz.com/illustratorspartnership/home/ 2 minutes is all it takes to tell the U.S. Congress to uphold copyright protection for the world's artists.

INTERNATIONAL ARTISTS please fax these 4 U.S. State Agencies and appeal to your home representatives for intervention.

http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00267

CALL CONGRESS: 1-800-828-0498. Tell the U.S. Capitol Switchboard Operator "I would like to leave a message for Congressperson __________ that I oppose the Orphan Works Act." The switchboard operator will patch you through to the lawmaker's office and often take a message which also gets passed on to the lawmaker. Once you're put through tell your Representative the message again.

If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: illustratorspartnership@cnymail.com Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.

Please post or forward this message to any interested party.

Stop the US Orphan Works, act now.

Orphans Still

2008-10-01T13:50:00.000-07:00

The best news about legislation I've heard in a long time came across the transom this morning: the Orphan Works Bill is dead. At least for now.

The Orphan Works Bill is a misguided attempt which would make copyright registration practically worthless, because an unauthorized user could make certain claims about unsuccessful attempts to reach a copyright owner, go ahead and use the work, and the owner would be limited in the amount of damages he or she could collect.

Why spend $45 to register your copyright if you don't have the power of $150,000 for damages for intentional infringement? Beats me.

I think Congress should pass a bill that says I can build my house on any plot of land I just see sitting unused--after all shouldn't someone who's willing to make good use of something have rights over someone who just lets it lay around? That's a simple analogy, but the likelihood of me being able to convince a Congress person to let me do what I want with someone else's real property is just about zero. But somehow, I'm supposed to be happy when an infringer takes away my right to control my images.

Right.

Legal Advice to Writers

2008-09-24T11:22:00.000-07:00

For more years than I can remember, I've been answering questions on a site called Hollywood Lit Sales, which was founded by a client of mine. Sometimes I wish Howie would just put a FAQ under the Ask a Hollywood Pro section.

The question I got today about writing a sequel to a film was actually on point, and I probably haven't answered it before, but many times I think I may need to break my fingers to avoid a snotty answer, many of which can be summarized below:

1. That's not a legal question.
2. Do some research before you ask a question.
3. There are no shortcuts to success.
4. If you can't spell, use proper grammar, or write complete sentences, you have no business trying to be a screenwriter.
5. An idea cannot be protected by copyright.
6. There is no such thing as a "common law" copyright in the U.S. after 1977.
7. I've answered that before when you wrote in under a different name.
8. Why do you insult me by wasting my time?

I know, I volunteered for this.

I don't want to be mean or even discourage people from following their dreams, but the first rule of being a writer is to WRITE. And write some more. And even more. And know that rejection is a big part of the game.

I can't count the number of people who have written to me saying they've got all these great ideas but they want someone else to write the script. Most real writers have more ideas than they can possibly deal with in their own lifetimes. They aren't interested in yours unless you can provide them with a great big bag of money and guaranteed credit. The people who write to me think they should be the ones who get the most money and credit.

An answer I give a lot is "why did you start this work without a written agreement" to the people who are in the middle of an ugly break-up with a partner who may have been a co-writer or just the idea person. Then there's the similar question about what happens after the ugly break-up where one of the writers has gotten someone interested in actually buying the spec script and doesn't want to tell the purchaser about the other writer. Nothing will hurt that guy worse than trying to sell a lawsuit to a producer. It's as if they think a former co-writer won't notice. People in the mid-west follow box office. Writers follow sales.

A screen writer needs a word processor, Final Draft, a printer, a ream of paper, and the delusion that he or she is talented.* A writing team also needs a written agreement about who gets first billing, how the credit will read, how the money will be split, and what happens in case of divorce.

*Credit to Russell Myers for the two variations of a Broom-Hilda strip featuring Gaylord Buzzard he did with a gap of about 25 years between them. The first one says "typewriter." My husband, writer Len Wein, keeps them both hanging near his desk.

Just Try to Keep This Plate Spinning

2008-06-25T10:40:00.000-07:00

Over the past few days, I've been hearing that the artist responsible for the image on one of the California license plates has been trying to renegotiate the terms under which the state gets to use the image. There's an article in the Los Angeles Times, which you can link to here.

There are plenty of mistakes that were made in this arrangement. First of all, it is described as a "handshake deal," which is always a mistake but more so with something that is on-going. Then Wyland, an artist whose murals I've seen in several places (but didn't connect with the license plate until this article) claims he can change the terms of whatever agreement he had because he's the artist and owner of the intellectual property. Uh, that's a pretty stupid statement in terms of business arrangements which were done on a hand-shake. He's claiming the "license" was only for a term that is now over. If that is true, he could indeed ask for different terms to extend the use and the state has the right to find another artist.

If the new image looks too much like Wyland's, he might have a case for suing for copyright infringement but not if it's an independently created new image. Wyland doesn't have a monopoly on the idea of using a whale's tail to decorate a license plate for charitable purposes--despite the fact that the article quotes him as basing some of his claim on his "idea." Nope, only the expression is protected.

Wyland now gets 10% of the money for a plate he designed for Florida. Maybe he learned something about the value of his work after he did the California plate, got a real deal with Florida, and is trying to build on it. Apparently, Wyland wants to get 20% of the proceeds from the sale of the California plates to go to his own foundation--those of us in California pay a hefty premium every year to get these special plates and a nice portion of that goes to a particular charity or another. In the case of the whale tail, it goes to the California Coastal Conservancy. The photograph of the Wyland license plate appears at the left and it comes from the California Coastal Commission website.

It will be interesting to see what happens with this dispute. I've got a button which reads "This job would be great if not for the clients" and I sure wouldn't want either of these clients knocking on my door.

Here's my big advice for the day: even if it is for a cause you believe in, get the terms in writing. It protects both sides.

Personally, I've got the picture of Yosemite on my plates.

What First Amendment?

2008-06-24T15:06:00.000-07:00

An article appeared in today's Los Angeles Times about the problems caused by the presence of paparazzi in Malibu. Here's the link. The problem is not limited to Malibu--wherever young celebrities hang out, so do photographers looking for that money-making shot. Apparently, the photographers travel alone and in packs in Santa Monica, Beverly Hills, and on Robertson (Avenue, Street, or Boulevard, I'm not sure) where there are lots of trendy boutiques.

Clearly, I don't go to many trendy places, because the only time I'm likely to see a swarm of photographers is when I'm walking a red carpet or when I'm in San Diego for Comicon, where the swarm follows the stars for their appearances. Last year, when David Beckham arrived in Los Angeles, I was driving home and saw a swarm of photographers along Pierce College's Victory Boulevard fence. Victoria Beckham was with the kids at a soccer match, so the little flies were buzzing. I'm not entirely sure it was legal for the school to keep the photographers at bay like that--it is a public school and it is, technically, public land. At least that's what the horse owners got told when we wanted to keep people from walking through the barns at Pierce and sticking their fingers in our horses' faces. Maybe Posh Spice smiled nicer than we did.

Like the situation at Pierce, I'm not sure that the mayor of Malibu, who is now trying to craft a law to keep the paparazzi at bay in her "Mayberry-like" community. For good or ill, the paparazzi are a part of the press, whether they are freelancers or in the employ of an agency. It seems to me that there are already laws in place upon which a particularly intrusive photographer can be dissuaded from pursuing his or her career, such as those against trespass, assault, battery, reckless driving, or false imprisonment.

While the main stream media often portrays the paparazzi as parasites, it seems that there is more of a symbiotic relationship between many of the paparazzi and their prey. People like Paris Hilton and Britney Spears would be long past their 15 minutes of fame but for their encouragement of the prying lenses. This isn't always the case. There are plenty of examples of the press or photographers actively goading celebrities into unflattering situations.

I want to make it perfectly clear that I believe everyone is entitled to some privacy. I don't believe that everything a celebrity does is news or my business. Going to a premier is public and most actors are gracious under those circumstances. Going out to dinner with friends or the family or going grocery shopping? That's private. Leave them alone. No one can be on 24-7 (except maybe I do expect a President who is, but I'm sorely disappointed these days) and even people who make their living by being famous are entitled to down-time.

California already has a law on the book by which a photographer can be prosecuted for invasion of privacy by using an extreme telephoto lens to get a picture within the confines of someone's home or yard. That may not be so bad, but finding a way to prevent reportage (and photographs are reportage, just like words are) because you don't like the "speakers" should face pretty high hurdles before enforcement. The problem is that many individual photographers aren't in any position to pay for the kind of legal fight opposing crippling legislation might cost. That's probably not a problem for TMZ and X17.

I've been hearing rumblings about what the mayor of Malibu is trying to do for several weeks. I'll be keeping my eyes and ears open for a more definite ordinance.

June 20 Program on Copyright and Trademark Issues

2008-06-14T16:07:00.000-07:00

I'll be giving an overview of copyright and trademark issues concerning visual artists next Friday, June 20, for the Simi Valley Art Association. A couple of their members attended the program I did at Continental Art Supplies earlier this year and invited me to speak.

The 7:00 PM session will be held at the Community Room of the Simi Valley Public Library at 2969 Tapo Canyon Rd Simi Valley , CA 93063. Admission is free to students with accompanying adults. Non-SVAA members donate $7 at the door. (Proceeds go to the art scholarship fund for high school students.) The room has capacity for 120 people. My presentation should start about 7:15, after they finish with preliminary matters. There's plenty of parking and it's easy to find as it's next to the city hall.

So come on out and I can try to answer your copyright and trademark questions.

Intellectual Property Estates

2008-04-24T08:59:00.001-07:00

I frequently get asked if I know any lawyers who can write a will for writers. That's because writers, like all visual artists, have an interest in seeing their intellectual property properly disposed of after death. It is not an area of the law in which I practice. Wills and trusts is an ancient and archaic area of the law and was my worst grade in law school (probably because the class was on a Friday afternoon for an ungodly number of hours and I could barely stay awake.) Lucky for me, it wasn't on the California Bar Exam except perhaps with some reference to community property, which I do grasp (no pun intended.)

My friend Neil Gaiman is on a crusade to make sure all writers have wills, because several other writers of both of our acquaintances failed to to do so (you can read the entire post here.) In both of those cases, the writers were not in good health for enough time to have taken care of the matter and didn't. Neil asked a lawyer friend of his, Les Klinger, to draw up a sample will, which he encourages people to pass on, so I will. You can find the PDF here. These are the suggestions Mr. Klinger makes:

1) Recopy the document ENTIRELY by hand, date it, and sign it at the end. No witnesses required.

2) Type the document, date it, sign it IN FRONT OF at least two witnesses, who are not family or named in the Will, and have each witness sign IN FRONT OF YOU and the other witnesses. Better yet, go to a lawyer with this form and discuss your choices!

California does recognize holographic wills--my husband and I both have them, although getting Len's through probate may wind up being pretty strange. Not all states do, however. The best advice is to take the draft to your own attorney and modify it to best fit your own situation. Most local bar associations can make referrals to specialists and the local version of the Volunteer Lawyers for the Arts is a good place to check as well.

Photographers are no less in need of wills to handle their photographic estates than writers are theirs. Photographs can have enormous historic value and it is a good idea to have someone in charge who knows what to do with them if your significant other or children don't. None of us knows what tomorrow brings, so don't be foolish. Get it done.

A New Twist on Infringement

2008-04-23T08:40:00.000-07:00

Over at The Beat, Heidi MacDonald's blog for Publisher's Weekly on "comic culture," she reported that the entire contents of someone's website was "scraped" and published in a book selling for $100--without the permission of the website's owner. The story is here, with links to the offended website.

This is classic copyright infringement and the ripped off website owner should take immediate steps. The first of these is to get the material registered and after that 15 minutes, he needs to get a cease & desist letter out and, if appropriate, a DMCA takedown notice to any ISP which might be reproducing any of the material in the form of advertise the product. If the book is being sold on Amazon or e-Bay, I'd get letters off to them as well.

As most people should know, even without copyright registration, the website owner does own the copyright (and prudence says the copyright owner should have a prominent notice to that effect on the website itself.) It's just that registration is the key to the courthouse door and the key that opens the door to statutory damages and attorneys fees. It is cheap insurance.

The Copyright Office website has forms and instructions. The Library of Congress is hard at work trying to make on-line registration easier. You can get a deposit copy of a website by downloading it to a disk and then you should send it to the Copyright Office with the appropriate form and registration fee. Send it by Federal Express, or, if you live in the Washington, D.C. area, take it in by hand. U.S. Mail is slower. Registration is effective on the date of receipt by the Copyright Office, but it will probably take six months to get the certificate back. You can help yourself out by enclosing a self-addressed, stamped postcard with your registration materials with words to the effect of "The stamp of the Copyright Office hereon indicates receipt of the following: (1) [Description of the material being registered, i.e. PhotoLawyer's website and all contents on April 23, 2008 provided on one DVD]; (2) Registration form for [material being registered]; and (3) A check for the Registration Fee of [current amount.] The stamped date will let you know the effective date of registration. Then, if you want to file a lawsuit, you can state in your pleadings that registration has been applied for and the complaint will be amended as soon as the certificate is received.

Actual damages can be pretty low, which is what you are left with if you have not registered within 90 days of first publication or before any infringement has taken place. If you have a website, think about doing updates of your registration at least quarterly if you change your content frequently--you never know when someone might rip you off. In this case, actual damages would be based on the number of copies of the book sold. The website owner could also ask for, and probably get, the confiscation or destruction of the offending books (I'd probably ask for all the books and sell them myself) as well. So the damages might not be enough to make a lawsuit worth while.

If registration had been made on the material before this rip-off occurred, the website owner could have asked for $150,000 in statutory damages for each infringement (in this case there appears to be both a printed book and a disk of some kind) and attorneys fees, in addition to the confiscation or destruction of the material, which is a much better starting place for a law suit.

Copyright & Trademark Lecture

2008-03-06T10:35:00.000-08:00

The California Lawyers for the Arts called yesterday and asked me to give a talk on "Copyright and Trademark Basics for Visual Artists," something I could probably do in my sleep since I've done so many of them.

This free brown-bag lunch event is at Continental Art Supplies, 7041 Reseda Boulevard, Reseda, California on March 17, 2008. On-site registration is at 11:15 a.m. and the talk is scheduled from 11:30 a.m. to 1 p.m. Call California Lawyers for the Arts at 310-998-5590 or e-mail them at UserCLA@aol.com. Space is limited to 25 people.

See you there, I hope.

Between the Cross-hairs

2007-09-25T15:33:00.000-07:00

Common Dreams sent out a press release from photographer Jeffrey Sauger today. The text can be read here. Mr. Sauger of Royal Oak, Michigan and Jim West of Detroit were both arrested in Toledo, Ohio two years ago while covering "a rally by a small group of Nazis outside the Government Center building." According to the release, the police out-numbered the Nazis and the counter demonstrators by 5 to 1.

"Sauger was arrested on a charge of 'criminal trespass' as he tood in a media enclosure carrying professional cameras and lenses photographing the scene. Police charged that he lacked a 'temporary media permit' that had been issued to some journalists earlier in the day. Arriving later, carrying his own press credentials, Sauger said officers had told him he didn't need the pass.

"West was arrested as he stood, alone, taking photographs near a line of horses that was being ridden past and through counter protesters. He was charged with 'failure to disperse.'

"Charges of disorderly conduct against a third news photographer, Jeffrey Willis of the Toledo Journal, have been dismissed. Willis was also arrested while photographing the police response to a crowd of anti-Nazi protesters."

I note these are still photographers, not videographers for a TV station. More than 20 years ago, I was harassed by the DC police while covering an event for the Washington Post. The TV cameramen standing virtually next to me were not bothered. I have always theorized that they could have been on TV instantly but the paper wouldn't hit the stands until hours later. In this case, I suspect Mr. Willis was backed up by his newspaper's lawyers, whereas Misters Sauger and West are from out of town and were freelancers. They didn't have corporate lawyers backing them up.

Photographers have enough to do when on these kinds of assignments and the last thing a pro would be doing is interfering with the actual events. So they must have been photographing things that the police didn't want covered. The press release says the photographers were photographing how the police were treating the peaceful anti-Nazi protesters.

So the police were supporting the Nazi demonstrators?

I haven't uncovered any other coverage of this by the main-stream media. That's not a total surprise. Who cares about the rights of a couple of freelance photographers anyway? I do wonder if the National Press Photographers Association or Photo District News has covered this in any way. I don't recall seeing any squib in ASMP's literature, either.

Freelance photographers are really alone out on the front lines. They can make really easy targets for frustrated police officers.

Just Because You Own a Copyright...

2007-09-21T15:49:00.000-07:00

I've given lectures to lawyers about this one: just because you own a copyright, doesn't mean you can do anything you want with a picture, particularly if someone's face is recognized. This comes up today because some minor in Texas discovered a photograph of herself being used in a large advertising campaign in Australia. The photograph was taken by the girls church youth counselor and posted to Flickr.

It seems that people who are foolish enough to put their photographs up on Flickr for "sharing," are finding their photographs used commercially, which is what happened to this photograph. Some moron at Virgin Mobile Pty Ltd., in Australia released a statement that "The images have been featured within the positive spirit of the Creative Commons Agreement, a legal framework voluntarily chosen by the photographers. It allows for their photographs to be used for a variety of purposes, including commercial activities." Right. But the subjects of those photographs have rights which they have not necessarily conveyed to a photographer.

Ms. Chang's photograph is now being used to advertising Virgin Mobile. In the U.S., there is absolutely no blanket right to use someone's image this way without their express permission and the damages can be substantial. In one of the articles I read, Ms. Chang's lawyer has handled cases like this before (I'm glad to hear) and expects a substantial return. I did do some brief checking about Australian law, and it would seem that Ms. Chang's position there is similar to the way it is here in the U.S.

I am not so sure the photographer, who didn't grant explicit rights to the photograph, will make out quite as well, but then, I haven't read the Flickr agreement to see how many holes I might be able to shoot through it. The photographer is not being sued by Ms. Chang. Apparently Virgin Mobile USA is.

I do note that the case has been filed in a state court in Dallas, which is the right venue for Ms. Chang, but probably not the right one for the photographer. Even if his theory of the case has to do with a breach of contract issue (Flickr photographers "Creative Commons" agreement has something to do with getting credit for usage, which didn't happen), it would seem to me that would have to be subsumed by any copyright claim that would attach to this issue. I truly would like to see the pleadings in this case.

So, get a model release--although even then it may not be enough. A few years ago, a professional model won at judgment of $15.6 million when he discovered his face on a Tasters' Choice label. Despite the fact that he had been paid for a 2-hour shoot back in 1986, his contract must have had provisions for actual use. The company used the photographs in the U.S. and Canada for many of the intervening years until Russell Christoff ran across a jar in his supermarket. He was able to collect a percentage of company profits for a 6-year period. I don't know what happened on appeal, but the company could not have been happy. Even a settlement would set them back more than the offer they made early on.

I am interested in seeing whether this helps professional photographers who are having a hard time competing with rank amateurs these days because of the Internet. My mother always said, why pay for milk when you're getting the cow for free.

A Bill to Restrict Use of Celebrity Images

2007-09-06T11:01:00.000-07:00

I received the following advisement from ASMP in my e-mail. A prior e-mail had advised contacting the Senate, but didn't even mention the Assembly. Photographers in L.A. should have shown up at the office of sponsoring Senator Kuehl, but it's too late for that. She, like the governor, has her roots in acting (she worked under the name of Sheila James, and played Zelda on the old Dobie Gillis show) and I doubt that the governator's going to refuse to sign this bill. While my read on it is not quite the same as ASMP's, I suspect it will take a lawsuit to find out exactly how far the legislation actually goes to damage the value of older images.
**********************************
The California right-of-publicity bill (Senate Bill 771) has now passed in the Assembly. There are only two things we can do to improve the situation:

1. Call your Senator and ask that the bill be amended by deleting Subsection P, which is the provision that makes the legislation retroactive —- THIS MUST BE DONE BY FRIDAY.
2. Call the Governor and ask him to veto the bill.

It is crucial that you act right away! After Friday, it may be too late.

Please call your state Senators office. Here is where you can find his or her contact info:

http://192.234.213.69/smapsearch/framepage.asp

Governor Schwarzenegger’s main office telephone number is 916-445-2841.

Just tell the person who answers the phone that you are a constituent and admantly opposed to Senate Bill 771. Tell your Senator’s staff member that you want the bill amended by deleting the retroactive aspect, Subsection P. Tell the Governor’s staff member that you want him to veto the legislation.

It will only take a couple of minutes of your time, but those few minutes may save you years of problems.

Please feel free to pass this message along to other photographers you know who may not have received this message.

This is probably your last chance to prevent this bill from going through in its current form.

Thank you for your help and cooperation.

Fair(y) Use

2007-05-25T11:31:00.000-07:00

Looking at the date of my last post, I have been incredibly remiss about this blog. I've been much better about the one you'll find on the link list to the right, but that one's not for legal issues (usually.) There's actually been some interesting developments in the law over the past couple of month and I will try to get to them here.

First off, though, I want to commend "A Fair(y) Use Tale" as a primer on copyright law before the Walt Disney Company does something to get it off line. I'm pretty sure that the creator of the video has a good argument for the fair use of the Disney material (it takes only as much as necessary to make its point, it doesn't interfere with the market for the original, it's transformative, it's educational, commentary AND parody.) That doesn't mean that he or she will avoid the wrath of the Mouse House because, as we learned from the Air Pirates case long ago, you don't f@#% with the Mouse. This video will teach you the basics of copyright law in about 10 minutes.

Viacom Takes on YouTube and the DMCA

2007-03-27T08:51:00.000-07:00

The Digital Millennium Copyright Act (DMCA), one of the worst ideas every pushed through Congress, was passed in 1998 and has been the shield behind which ISPs have clustered when copyright holders seek restitution for blatant infringement of registered material. The DMCA has succeeded in protecting not only ISPs, but the individuals who actually post the material, often because ISPs refuse to cooperate with providing information which will lead to the actual infringers and ISPs often go out of their ways to avoid knowledge on the individual infringers true identitites. ISPs usually will take down the material which is identified under the formulaic "notice and take-down" provisions, but will do nothing to pro-actively prevent repeated infringements of the same material. The ISPs, hiding behind the formality of notice and take-down, require the demands be sent again and again rather than recognizing what is happening and setting up systems which can police repeated infringements.

Google and YouTube were sued by Viacom for massive copyright infringement recently, and finally some attention is being paid to the burden the DMCA notice and take down provisions place on a copyright holder when the same material is continually being reposted to the same web site. At what point is an ISP or other web entity going to be held accountable under the legal concept of constructive knowledge?

As Harlan Ellison's first attorney in his case against Internet infringement, I have first-hand knowledge of the difficulty of policing the Internet for infringement. You need to track down the infringement, track down the infringer, track down the ISP, find the agent for notice of infringement (and hope that the information on the Copyright Office web site is accurate--which AOL's was not), send the notice, make sure it is followed, and keep an eye out for a repeat posting of the material which was taken down, so the whole process can start over again. In Harlan's case, the same initial scans of his works are the ones which have been re-posted all over the world--the metadata gives it away every time.

The Ninth Circuit did address constructive knowledge in Harlan's case because a number of writers attempted to notify AOL, through its various technical support numbers, of what was posted on the alt.binaries.e-books newsgroups. Even though the individuals were not the writers of the actual books posted (and, consequently, had no standing to send a notice and take-down demand as outlined by the DMCA) my reading of the decision is that those phone calls gave AOL constructive notice of the infringement of copyrighted works on a newsgroup it chose to provide to its subscribers. That constructive knowledge is a benefit to a copyright holder trying to pursue damages under the DMCA.

In my perfect world (and, I suspect, that of Viacom) Google (which owns the service where you are reading this blog) and YouTube should find themselves liable where they have received notice at least once of material owned by the Plaintiffs. Google and YouTube may be even more culpable, since they have attempted to arrange licensing for the materials at issue and were not able to come to an agreement. Copyright law does not give a print-publisher the right to take material when an author says "no" and this same right should exist in the cyber world as well. If it doesn't, what is the incentive to actually register material under the U.S. copyright formalities. Frankly, what is the incentive to create if there is inadequate compensation for creating.

I have often said I'd be perfectly fine living under a patron system where I could make the photographs I want to and someone would pay me a nice stipend to cover the lifestyle I'd like to live. Unless my husband finally is compensated for creating Wolverine, I doubt that will happen in this lifetime. I earn my money for the photographs I take by licensing their reproduction and I have a small body of registered work which has earned me a nice income over the past 20 years, even if I don't pick up a camera much anymore. My work is infringed on the Internet and sometimes I have no idea how it has happened. Usually I do. The most common way is when the material has been copied from the Grolier's CD-ROM Visual Encyclopedia of Science Fiction, which was published in the early 1990s. I licensed over 100 portraits to that work and I occasionally run into them if I do a search on my name or the name of one of the subjects. My license to Grolier's was not a license for anyone else to copy, distribute, display, or otherwise use my photographs. Every such use without permission and payment is an infringement.

There are several things in the way of me effectively combating the war on my copyright: Under the DMCA, the deepest pockets are effectively protected. It is almost impossible to find out the real name and location of a specific infringer without an expensive fight against the ISP because the subpoena which was supposed to be available under it is ineffective (and, when I started Harlan's case, pretty much unavailable; the Clerk of the Court of the Central District of California had no idea what I was talking about and when rules were finally put into place the following year, the cost for one was the same as actually filing a law suit--not the intent of the law.) Once a work has been put up on the Internet, it is almost impossible (or beyond my ability to pay) to track every place it has been copied. Even if I can locate the infringers, many are in foreign countries and pursuit would cost more than I would be likely to recover. There are still foreign countries which don't recognize copyright rights. Life is too short to spend it all at war when the law is supposed to protect me.

In the U.S. there seems to be this perception that copyrights are all owned by big, greedy corporations so who could possibly care if they get ripped off. That was certainly the reaction about Napster when the music companies started going after the individuals who used Napster and its progeny to steal music. That's the reaction when the motion picture industry goes after the people who are "trading" digital copies of films.

The truth is that there are many, many individuals who are harmed by unfettered copyright infringement: writers, photographers, and illustrators who have no collective bargaining agreements and who rely on royalties or licensing fees to supplement their income after their initial compensation for a work and screen writers, actors, and directors who are subject to collective bargaining agreements which give them a (tiny) share of the revenue stream of television and motion picture productions.

I did a spit-take when I read the complaint against Google and YouTube because the studio invoked the "little people" who are harmed by the infringements. They won't give the writers, actors, or directors a percentage based on all revenues, only 20% of revenues, but, boy, those are the folks really harmed and why the suit is being filed. HAH! It reminded me of being in the Supreme Court for arguments in C.C.N.V. v. Reid and hearing the C.C.N.V. lawyers talk about how the homeless would be harmed if James Reid was the owner of the copyright of "No Room at the Inn" and not C.C.N.V. Sandra Day O'Connor, bless her, pointed out the big businesses (the computer industry and big publishing) which had come in on C.C.N.V.'s side because a narrow reading of the work for hire provisions as they applied to freelancers would cost their industries big time.

Despite my sarcasm about the complaint, I stand firmly with the plaintiffs in this case. Google's motto may be "Don't be evil," but there is a clear disconnect between what they are doing and the reality that it is evil to allow individuals to steal on a massive scale and to do nothing more than follow the letter of the law. If the court in this case recognizes the importance of constructive knowledge, there's a change that Google will have to acknowledge the spirit of the law as well.

All this being said, I like Google and YouTube as products and I wouldn't mind working for Google (which is said to be one of the best companies to work for in America) if it starts paying for the content upon which it is built (that includes the absurd scanning project where they expect copyright owners to have to opt-out rather than being asked for permission.) Google is awash in money, and some of it should go to the copyright owners. If a copyright owner doesn't want its material used, Google should graciously find other content. There's plenty out there for the right price.

A Bite of the Apple

2007-02-06T11:33:00.000-08:00

The big news is that Apple and Apple Corps have settled their on-going litigations (going back 20 years) over trademark rights. This is why I pratice copyright law.

First of all, I've never confused the computer company with the music company and god knows their logos look nothing alike. I don't think that the two logos have any likelihood of confusion at all. I was looking at the granny smith this morning and I have to ask: didn't the Beatles' Apple used to show the cut inside of the Apple on its vinal labels and wasn't there something actually risque about the look? Nevertheless, that's a far cry from the rainbow-striped bitten logo of the computer company.

Back when the issue was that the computer company agreed it wouldn't go into the music business, I confess I saw trouble ahead. I mean, how could Apple not believe it would someday be involved with music. So, I was a bit surprised by the recent court rulings (and certainly by its reasoning) that Apple Corps lost.

I think both companies are better off with a settlement now rather than after dragging this through the appeal process. Apple makes money, Apple Corps makes money, and possibly the world of iPod users (or which I am not one) gets to hear the Beatles through itty-bitty head phones. Me, I'm trying to locate a new turntable and stylus so I can listen to my original Beatles (yes, purchased 1964-1970), some in the original mono.

Why Register?

2007-01-28T21:13:00.000-08:00

I was having dinner with a friend who's been representing a photographer who sued Court TV for using a photograph of his after he refused to license the photograph to him. The case settled after my friend beat out the summary judgement motion of the other side. The case took a lot out of him, and since it was a settlement, he couldn't talk about it. I hope he saw compensation for the work he did, because he took it on a contingency and I didn't think the facts were going to let him get statutory damages or attorneys fees.

From the papers I read as it was going on, one of the arguments the other side made was that it was fair use to use the photograph because it was a newsworthy event. In fact, the photo was a wedding picture and the wife was convicted of murdering (or having had murdered) her husband. (It's been a while since I read over the papers.) I worry every time I hear the argument that some news organization thinks it should be able to use photographs without compensating the photographer because of "news." I know there are judges out there who believe that or who simply don't grasp the importance of licensing photographs to a photographer's business health. They just don't get it.

Back when the 1909 Copyright Act was working its way through Congress, the big newspaper men of the day tried to get a news exception for the use of photographs, meaning any photograph they deemed "newsworthy" could be published without permissiosn of or compensation to a non-employee photographer. In those long ago days, a small group of photographers managed to convince Congress to reject this move. I was amazed when I discovered this when reading through the legislative history of the 1909 Act, because photographers were far less involved with shaping the Copyright Act of 1976. Fortunately, ASMP and other organizations have been far more active in Washington on behalf of photographers during the past 20 years than they were during the middle of the 20th century.

Back to the question of "why register?" Because excellent lawyers like my friend can't afford to take on contingency cases without the likelihood of recovering their fees and the best insurance that will happen is when a photographer has a registration which was made before an infringement takes place. That registration will most likely avoid litigation of any kind, or at least stop it at the summary judgement stage--early in the proceedings.

Today at the workshop, Seth Resnick addressed the registration matter as part of the work-flow process. Every time he processes his digital files, he's automatically making the low resolution jpegs which will be sent off to the Copyright Office on a cd. I expect that when he covers this a little more tomorrow, he'll let the class know how often he sends material to Washington. I spent some time advising a couple of photographers to do it on a 60 day cycle, to make sure the registrations take place during that 90 day window after first publication. I advise they be done within 60 days of creation. It's cheap and easy to register unpublished images, but so few images are really unpublished anymore, with photographers uploading to web galleries. Make no mistake--that's a publication..

DAM!

2007-01-27T14:12:00.000-08:00

DAM means digital asset management. I'm speding four days in a workshop taught by Seth Resnick and Jamie Spritzer of D-65 working our way through digital shooting and work flow. It should really prepare me for teaching the first digital Photo 10 class I'll be doing this spring. I've already realized that the six instructors made a couple of bad decisions about standardizing the beginning class and I'm going to have to talk to our department chair before classes start on February 5.

I've got a lot of work to do to set up my own work-flow, but that was the reason for taking the workshop. I'm also getting used to working with the new MacBookPro. I need to find out how to increase the size of my display text. It's just too small for me to read comfortably.

Passings

2007-01-19T13:51:00.000-08:00

Art Buchwald died yesterday. He was one of those individuals whose paths crossed mine because of my camera. I have a memory of one of his columns which must have appeared in the 1960s about the U.S. Revolutionary War. I don't remember the particulars, but I do remember it stuck with me for a long time and when I saw it reprinted I knew I had read it before. I very much enjoyed his wry take on life inside the Beltway.

Mr. Buchwald lived very near Ethel Kennedy, which is why I got a chance to photograph him wearing a top hat and tails as he emceed Mrs. Kennedy's charity pet show at Hickory Hill one year. The Washington Post sent me out to photograph the event (which was annual for some time) and I also photographed Kathleen Kennedy's oldest daughter decked out as Little Bo Peep and British dog trainer Barbara Woodhouse (I think that was her name) who was among the celebrities in attendance. Lots of Kennedy children and cousins were there (including ones who are no longer with us.) I think I was about 6 months pregnant at the time, and hiking around Hickory Hill with a heavy camera bag was a bit tiring.

Mr. Buchwald was every bit as funny in person as he was on paper. I'm glad he outlived his doctors' prognosis and I would have enjoyed being a fly on the wall of the "salon" his hospice room became. The world is a poorer place because of his passing.

Catch-up is a Bitch

2007-01-19T10:13:00.000-08:00

I spent the last two days attending Peter Krogh's excellent workshop on Digital Asset Management (DAM, as he likes to put it.) Wow. Do I feel like I've been under a rock for the last 15 years. I left the program yesterday and dragged myself home, feeling like I went through a wringer. Today, I've got all kinds of great ideas about how I'm going to implement this in my digital workflow and, eventually, will be able to manage my most valuable photographic files. One of the best points Peter made was start from this point forward and work on the old stuff later on. That is an emancipating suggestion.

Wednesday night, Peter did a 4-hour lecture over-view of his system (you can get The DAM Book on Amazon) and Thursday was 8 hours of hands-on work with Adobe Bridge, DNG Converter, a little PhotoShop and LightRoom, and an intense introduction to iView Media Pro 3. The last program is amazingly powerful and I wish I had enough time left in my life to get my 30+ years of images processed and indexed, but the amount of time that it would take to digitize 30 years of film means it simply will not ever happen.

I made the leap to buy an Apple MacBook Pro just before going to the program. I am very glad I did (even though I won't get the new computer until at least tomorrow) because some of programs work better on Mac than on PC. As I looked around the room, I was one of about 5 photographers working on a PC laptop. We were the ones who couldn't do some of the steps because they weren't supported in our software. This morning, I was busy buying CS2 and iView Pro for the new laptop. Since I teach at a community college, I was able to take advantage of deep discounts offered to educators for the software and slighter ones for the computer.

I'm going to the four day D-65 Workshop next week where I will be using the new computer and software along with the digital camera. I can't imagine how tired I'll be after that!

iView Media Pro can also be used to track MP3s, movies, documents, tiffs, jpgs and other files as well as DNGs. I'm willing to bet I will find really good ways to use it for my legal files and documents as well as for my photographs. It would be a good way to keep all files related to one client or one case together (although I can also do that in a program I own called TimeMatters which is not quite so robust.)

Later, I'll be off to Fry Electronics looking for this weekend's sales on storage devices.

Ooops!

2007-01-12T09:08:00.000-08:00

My husband believes that it is easier to get forgiveness than permission, and I've learned to deal with him that way. But I keep telling him that this is not the way things work in copyright or trademark law.

Witness the flack that's flying because Apple announced the "iPhone" before finalizing any negotiations it may have been in with, I think, Cisco before Steve Jobs made the announcement earlier this week.

I am far from an expert in trademark law. My friend Karen is and we frequently disagree about which is the more difficult IP law to understand. She says trademark is a piece of cake, I say copyright couldn't be simpler but trademark is convoluted. My proof is that anyone can file a copyright registration and get it right but even professionals are guaranteed to get at least one "Office Action" for any trademark filing.

In any case, I had noticed that Apple was being very coy about calling their possible announcement an "iPhone" before the announcement, even though it would appear that the company does have a strong mark in the "i-Whatever" area. I was certainly not aware that any other company had such a mark, but the Internet does make searching the USPTO's files very easy. I heard my acquaintance Paul Supnick on the radio yesterday saying he thinks that what will happen is that Apple will buy or license the "iPhone" mark at a higher price than they originally expected to pay. Probably true and probably worth it for all parties to the deal.

So many news reports mix up copyright, patent, and trademark rights. Simply put, copyright is about authorship, patent is about invention, and trademark is about the source of goods or services. Sometimes things are protected by two of these concepts, and it is possible that some things might have protection under all three. Patent protects for the shortest period and trademark can theoretically protect for the longest since it's good as long as something is used in commerce and the periodic fees are made to the USPTO. Copyrights and patents are mentioned in the U.S. Constitution, trademarks are not.

You can't copyright a title, but you can get a trademark on a series of titles (Star Wars is a series) while the books or films are individually protected by copyright. Short phrases can't be registered for copyright, but a single photograph or drawing can be. I think an individual haiku can be registered for copyright, even if it has fewer than the 15 words that Ralph Oman, former Register of Copyrights, said was the rule of thumb minimum for registering writings.

If you need information or forms for registering a copyright, go to www.copyright.gov. Even a copy of the law is there.

Isn't that easy?

Copyright Genius

2007-01-09T12:53:00.000-08:00

I've just learned that Bill Patry, whom I first met back in the days when I worked with Chuck Ossola on ASMP's lobbying efforts in DC, has a blog. I've added a link (http://williampatry.blogspot.com)and you should definitely read him. Bill is an absolutely brilliant copyright lawyer whose treatise is always close by in my personal law library.

I must confess to being a little concerned that he's now a senior counsel for Google. Despite its "don't be evil motto" and its crowning as the best place to work (yes, I too could get into the perks), I worry that Google is making its money by ripping off individual creators who don't get the benefit of those lovely benefits Keith Olbermann reported on last night.

A Bright New Year--Maybe

2007-01-05T11:13:00.000-08:00

I, for one, am enjoying the fantasy of some transparency in government now that Congress has changed hands.

What will be interesting to see is how things move along with the "orphaned works" provision bill. Congressman Howard Berman will chair the responsible committee in the House. In the past, no changes happened in copyright law without all the interested parties agreeing. More recently, this has not been the case and careful balances have been upended.

I first met Congressman Berman around 20 years ago, when I lived and worked in D.C. I met with him and and some of his aids when I was on the ASMP Board and helped to set up the Copyright Justice Coalition. I've had the opportunity to meet with him a number of times over the years and I've always found him responsive to the needs of the creative community. He was a guest speaker for me when I was the chair of the entertainment section of the Beverly Hills Bar Association and I called on his office for advice when I handled Harlan Ellison's lawsuit against AOL. I hope that he will see the folly in the proposed legislation (assuming it is to be reintroduced this session of Congress when there are so many other pressing matters.)

As I understand it, the falacy on which this legislation rests is that it is impossible to find the authors or copyright holders of many works. Even if this is true in a few cases, the Internet has really made it far easier to locate artists and writers. I cannot tell you the number of times I've been able to find contact

But greed makes corporations and other individuals want to be able to use the work of creators without the bother and expense of licensing, hence the smoke screen that there are huge numbers of ophaned works--as opposed to works legitimately in the public domain--in existence. Corporations sure don't want any of their properties to fall into the public domain--Disney spent a fortune making sure that Micky Mouse is still all theirs by pushing a law that prevented the mouse from hitting the PD four years ago. Such corporations have spent years (probably more than the almost 30 years I've been watching) telling Congress the balance of copyright is between the rights of creators and the rights of publishers (using that term in a very broad sense), but the plain language of the text of the U.S. Constitution says Congress has the power "To promote the progress of science and the useful arts, by securing for limited times to authors and inventors, the exclusive right to their respective writings and inventions." Neither publishers nor corporations are mentioned. Authors and inventors are supposed to benefit the greater human condition by being compensated for what they do.

I think Congress should give some thought to reining in the concept of "corporation" as "person." So often under the law, coporations get the rights, but not the duties or other obligations of personhood. I'd love to see that equation change.

Copyright booster I may be, but I really see no reason for the last increase in copyright term because it benefited corporations with no apparent benefit to the actual creators of works or their heirs. The 1976 Act had real benefits for the creators and heirs.

Defending the Constitution?

2007-01-04T13:17:00.000-08:00

From today's Findlaw article on the resignation of not-my-president's lawyer: "Harriet is one of the most beloved people here at the White House," [Tony] Snow said, adding that she was a scrupulous lawyer who aggressively defended the U.S. Constitution.

Would someone please explain to me how Harriet Meirs, who stood by as not-my-president lied to get us into a war, lied to subvert constitutional rights, and lied to wrestle two elections, could be described as someone who "aggressively defended the U.S. Constitution?" Boggles the mind, I tell you.

Holiday Musings

2006-12-30T16:54:00.000-08:00

I've been so busy trying to get through the holidays and getting my beloved horse settled at his new home that I haven't even checked e-mail in over a week. It's amazing what can pile up in that time.

Rather than being less than a mile from my house, the horse is now being boarded up in Chatsworth at a facility in a neighborhood I'd never be able to afford in this or any other lifetime. He's now a few blocks from the home of science fiction writer Larry Niven and his wife Marilyn. I've been going to their home for parties for years and I had no idea that horses were being kept so nearby. There are beautiful arenas, trails into the hills and over to Simi Valley, and a whole lot of nice people. I've enjoyed the peace and quiet of being there on mornings when there are no lessons and the beautiful views of the San Fernando Valley. In the evening, the sunsets have been spectacular, but it does get cold once the sun goes down.

The speedy execution in Iraq is quite a contrast to our system which drags out for decades. I'm not shedding tears for Sadaam, but I would have been happier if the World Court had handled the trial. How different today is from what happened after WWII in Germany. No one questions the legitimacy of the Nurenburg Trials, do they?

I used to live on the same street that Gerald Ford lived on early in his career in Washington, but not at the same time. Nixon once lived in Park Fairfax as well. It was a townhouse rental development that turned into condos at the end of the 1970s. Located maybe 10 minutes from downtown DC in Alexandria, Virginia, it was a nice place to spend a few years. Ford was president when my ex and I moved to DC at the end of 1975. I photographed election night festivities in DC when he lost (things were much happier at the Carter party, which I also covered that night.) Those negatives must be in storage someplace. Perhaps the Digital Asset Managment seminar I'm taking in January will teach me to keep track of these kinds of things.

I'm working on my new year resolutions, which should include eating healthier and calling my mother more often. Don't know if they will, though. Best wishes for a healthy, happy new year and perhaps for peace. I'd add a couple of other wishes, but the CIA or FBI might want to question me later.

Photography in the News

2006-12-21T09:01:00.000-08:00

There was a nice article in this morning's Washington Post about a retired Department of Interior employee who has photographed the national Christmas tree every year since 1963 (he's in his 80s now) and is the "unofficial historian" of the tree. He does slideshow lectures at retirement homes and such about the tree. He's gone from stills to video over the years to document the tree. It's good to have a personal project.

The New York times did a review of a show of the work of the "Mexican Weegee," Enriquez Metinides (I hope I remembered that correctly.) I was not familiar with him before this morning, but I am always glad to be able to bring some cultural diversity to the classroom. Last spring, it was the work of an African portrait photographer whose work had been discovered.

As I prepare my materials for next semester's Photo 10 class, I look for photographers to add to the collection of artists from which my students will get two about which to write. For the first assignment, I randomly hand out cards which have the name of a photographer and one image by him or her and the student needs to turn in a 2 page report about the photographer the next week. For the second assignment, the students get to look at the cards and pick out an image they like (or, if they are sophisticated enough, they'll pick out one by the name of a photographer they recognize) and turn in a second report. Most students find it a good learning exercise and it is a not too painful way of becoming more visually literate.

I also make my students turn in a gallery or other show review for the last project of the semester. I've had them attend one-person presentations sponsored by APA or concentrate on one photographer or image in a show. Some of them have actually come away realizing how political photography can be and others never get a clue. One of the disappointments about teaching is that students sometimes just can't follow directions, no matter how clear you work to make them or how often you repeat them. I had one student who went up to the Getty for the Weegee show, decided she didn't like it, and wrote about some paintings instead. Nice piece about the paintings, but I wasn't teaching drawing.

There is sometimes surprise about having to write in a photography class, but I explain to the students that they will have to write no matter what they do, and, if they want to be photographers, they will have to learn to write captions, letters, proposals, etc. They need to get over whatever fears they have about putting things into words.

We lose our darkroom next month, prior to the start of the spring semester. I think it is a real shame, especially since students still want to take photography to learn how to process and print. We are going digital because the department is in Media Arts and the department head (a print journalist, not a photographer) believes that film is dead in the newsworld. He may be right, but there are things that can be taught so much better with analog equipment at a much more reasonable cost than in digital--at least right now. Unfortunately, when construction is complete on the campus, there will not be a replacement darkroom. As one of the art instructors here said to me "just because we have photography, we didn't stop teaching drawing or painting." I've read that a number of schools which made early decisions to go totally digital are desperately attempting to get funding to bring back film--and failing. I did a tour of Santa Monica College's excellent facilities and they have no intention of eliminating film. It also has excellent digital facilities. Good decision on the part of the department chair. I've already told a couple of potential students that they should look to Santa Monica if they want to experience the darkroom

And the Geek Shall Inherit the Earth

2006-12-20T09:55:00.000-08:00

I went off to law school in 1989 to study copyright law. My mentor, a fine lawyer in D.C. who specialized in that discipline, called it geek law: most people don't understand it and it's an area in which most people have no interest. The first part is still true but the second is far from true. I'd be rich if I got a penny for every time I've heard or read mangled copyright or trademark law reporting, but the point is that intellectual property law makes the news on a regular basis these days. In part, that is because intellectual property is the only reason the U.S. has a balance of trade in its favor.

I read Sunday's paper and found a large piece about X17, Inc. suing publicity whore Perez Hilton for copyright infringement. Hilton is quoted about defending his rights and the rights of all bloggers to make "satirical or humorous use of newsworthy photographs." So far, what I've been able to gleen from the reports is that Hilton is making, at best, unauthorized derivative photographs and, at worst, committing a classic case of copyright infringement by reproducing, without permission, photographs copyrighted by X17, Inc.

The legislative history of the 1909 Copyright Act makes it quite clear that publishers like Joseph Pulitzer wanted to appropriate photographs deemed newsworthy without payment to photographers. That effort was actually rejected by Congress thanks to the efforts of independent photographers. If you can find a copy of the 1909 Act's legislative history, it is all there in black and white. I read it in law school when I was writing a paper on work made for hire. People like Perez and corporations which don't want to actually pay for the use of copyrighted material are making that argument all over again and the Internet has definitely contributed to this misdirected sense of entitlement.

Fortunately, the "fair use" provisions of the 1976 act are fact specific, and Mr. Perez's attorney will have a tough fight on his hands if X17, Inc.'s lawyer does his homework.

I'm hoping that the actual filings will be available to read on line. I'm very curious about the calculation of damages, which will shed some light on what business practices X17, Inc. follows.

The reports have stated that the damages claimed are $7.6 million for the unauthorized use of 51 photographs. That's approximately $150,000, or the upper reach of statutory damages, per image. In order to qualify for statutory damages, X17, Inc., must have registered the copyright to each of those images within 90 days of creation OR prior to the first infringement by Hilton. If Hilton's infringement occurred within 90 days of the creation of the photographs and they hadn't been registered at that point, X17, Inc. could still preserve statutory damages by registering the work before the end of that 90 day period. Unfortunately, the law doesn't adequately address the question of what happens when a work is illegally appropriated for publication and this first (unauthorized) publication occurs longer than 90 days after creation.

Lessons to take to heart: If you put it on the Internet, consider it published. Before you put it on the Internet, do a group registration of everything you shot in a session by putting it on a cd or dvd and sending it to the Copyright Office with the appropriate check and get it registered. Registration gets you the right to ask for statutory damages and attorneys' fees (which can be greater than the actual damages, believe me.) Set up a system in your studio for a 60 day registration cycle to take advantage of group registration. All the information and forms you need can be found at http://www.copyright.gov. Someday, we'll actually be able to do registration and deposit on line, but that's not here yet.

Very few creators actually take the time to properly register their work and fewer yet have made the effort to engage in the systematic registration (and, if necessary, renewal) of their copyright interests. This is the key to the courthouse door.

Failing to register the work prior to the infringement is not a bar to litigation, just to statutory damages and attorneys' fees for plaintiffs (about which more some other time.) That means that X17, Inc. can register the 51 images after Hilton's infringement, but X17, Inc. can't ask the court for attorneys' fees and must prove the measure of actual damages for recovery from Hilton. They may be able to do this based on cancelled licenses or license fees already collected on similar images. Reaching actual damages equal to the statutory $150,000 per image will be tough because it is unlikely that every one of the 51 infringed images has equal value in the marketplace or even value close to $150,000 per infringement. I don't doubt that X17, Inc. makes considerable money from the photographs in which they specialize, but I think they will face a good deal of bias from a court or jury who simply doesn't like what they do, even if the individual judge or jury member gawks over a copy of the National Enquirer featuring X17, Inc. pictures.

Unfortunately, very few lawyers actually understand the business of photography and even fewer judges do. That's why there have been a number of reported rulings which have been extremely detrimental to photographers. Some are so bad that I wonder what the point of registration is if the courts won't recognize the inherent contractual relationship created by copyright registration: the creator pays $XX and U.S. law protects the creator from thieves. Big companies can shoulder the cost of copyright litigation, and often win by force of brute strength (Disney's great at this), but individual creators or small companies have a much harder row to hoe even if every fact and the law is on their side.

The American Society of Media Photographers (ASMP, and you'll see those letters a lot here) has made a concerted effort to support litigation to advance photographer's rights over the past 25 years. It has a network of attorneys who are knowledgeable about copyright law and the business of photography and many of them are willing to give advice to other attorneys who are handling copyright matters. It is better to quash this at the summary judgment stage than having to carry it on appeal.

I'm wondering if Mr. Hilton violated the DMCA by hacking his way past protections that X17, Inc. had in place to prevent infringement. That could be an interesting element of the pleading.