President Obama Is Not Impressed With Your Right To Modify His Photos

from the copyfraud dept

You may have heard that, over the weekend, President Obama released a photo taken late last week with him and Olympic medal winning gymnast McKayla Maroney, doing the "not impressed" pose: If you're not up on your memes, you can catch up on the "McKayla Maroney is not impressed meme" here and here. The photo of the President doing the meme-tastic pose generated a ton of buzz, with the apparent story being that during her visit to the White House, the President pulled her aside and said "I pretty much do that face at least once a day."

Cute. And, of course, nice to have a President not so out of touch that he's unaware of internet memes.

Except... as lawyer Venkat Balasubramani quickly noted, the restrictions on use are somewhat questionable. Beneath the photo on the Flickr account, it states:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

This is, of course, not a new thing. In fact, we reported on this exact phrase on the White House Flickr feeds three years ago. As we noted at the time, there had been some controversy when the White House first started using Flickr in the early days of the Obama administration, as any Federal US government created work is automatically public domain. Yet, Flickr did not have a "public domain" license option. In response, Flickr actually created a special license to indicate that the work was a US government work. That license explicitly states that "anyone may, without restriction under U.S. copyright laws... create derivative works."

And yet, the White House is ignoring what that license says in claiming that the photograph "may not be manipulated in any way." That's clearly untrue under the law and a form of copyfraud, in that they are overclaiming rights.

But, in this case, it's especially ridiculous, since the entire reason the "McKayla is not impressed" meme became so popular was the memegeneration of putting her displeased face into various other images.

Filed Under: copyright, derivative works, mckayla maroney, memes, not impressed, president obama, public domain, white house

Waiting 100+ Years For Version 2.0

from the extended-copyrights-make-creativity-a-zero-sum-game dept

Jeffrey A. Tucker (of the Mises Institute) recently had the pleasure of viewing Tangled, Disney's 2010 remake of the Rapunzel story. He gives a brief rundown of the improvements, including:

"[T]he story mercifully leaves out some very strange aspects of the original Brothers Grimm, including the wildly implausible idea that a husband would give up child-rearing rights to his wife's child in exchange for free access to the neighbor's lettuce patch."

(It's amazing how a little hindsight makes free access to a lettuce patch seem less valuable than a human child.)

Of course, Disney (a.k.a. Kaptain Kopyright) has often raided the Brothers Grimm for inspiration, thanks to their stories being in the public domain, something Disney's own work will likely never be subject to. And while there's a lot to be said in regards to Disney's hypocritical plundering of the past, Tucker points out just exactly how much copyright stifles creativity:

"Sometimes 2.0 is just much better than 1.0, and here we see the big problem with intellectual-property protection. It freezes the first release as the only release for up to several generations. Improving and adapting are made against the law. This is not a problem if you use a story that is old enough. But why should society have to wait 100 years to get a better version of the original? Why should we have laws that artificially slow the pace of progress?"

That question is directed at you, copyright maximalists. Why should we have to wait more than a lifetime to improve or adapt an idea? It can't just be the money, because most ideas don't generate a lifetime of income. Is it the fear that someone might improve on your idea? Is that the main concern? That the world will move on, forgetting the originator and embracing the "remixer"? Or is it simply a short-sighted and mercenary view that has self-perpetuated into the endless copyright extensions of today?

It's often argued that extensive copyright protection "fosters creativity," but this "creativity" is often narrowly defined and bound to one person (and their heirs) for 100+ years. Tying down an idea for more than a century fosters nothing more than resentment on both sides of the issue. The creators tend to feel that there is something sacred about an original idea, despite the fact there is no such thing as "original". Those on the outside who wish to build on existing ideas are locked out and no matter how brilliant their take is, it will never see the light of day. 

It's as if certain artists feel that their ideas should exist on an unwavering straight line that runs parallel to their lifetime. While copyright protection theoretically "incentivizes" creativity, in practice it has become nothing more than a legislatively-backed, wholly undeserved pension plan that does nothing more than lock everyone else out of the creative process. 

(Quick hat tip to JPM, who shot this post in my direction via evil social behemoth, Facebook.)

Filed Under: culture, derivative works, remix

Derivative Artwork Inspiring Derivative Artwork -- But Will The Lawyers Ruin It?

from the but-what-about-the-copyrights? dept

We've written numerous times about the famed mashup artist Girl Talk (Gregg Gillis), who has created some extremely popular and well-reviewed albums by mashing up hundreds of songs together into songs that sound both entirely new, and which give appreciative nods towards the originals. Girl Talk has won various awards and has even been mentioned in Congress by Rep. Mike Doyle, as an example of why copyright should allow more such mashups and remixes, rather than having it crack down on the practice. And, of course, there's also been an excellent movie about Girl Talk, called RiP: A Remix Manifesto, which I encourage people to watch if they haven't seen it yet.

Of course, there are all sorts of copyright questions around this. Some folks are stunned that Gillis hasn't been sued over his widespread sampling. There are a variety of theories as to why that might be -- from the idea that Gillis' use might actually cause courts to recognize that such sampling should be fair use, to the theory that the music industry doesn't go after Gillis because he's "white, middle-class and educated," as opposed to those who often do find themselves on the receiving end of sampling lawsuits.

Either way, we may get to jump deeper into the copyright conundrum, as the NY Times magazine recently covered an effort to make an entire movie based on people dancing to Girl Talk's latest album, All Day. You can see the trailer below: Even if you're not a fan of Girl Talk's music, the idea -- "an epic, 71-minute-long dance-music video" -- is pretty cool. It's tough to watch the video and not smile, just in general, at the joy it expresses (my favorite part is right in the middle where a woman in the background, who is clearly just a bystander, starts dancing along as well). The filmmaker, Jacob Krupnick, has also put up a Kickstarter page for the project, and it's more than met its goal (it had already, but I'm sure the NYT Magazine article has only helped it get a lot more money too).

What struck me as interesting wasn't just that Krupnick wanted to make a movie based on All Day, but that a lot of his inspiration came from both RiP: Remix a Manifesto and having briefly worked with the lead dancer, Anne Marsen, in a video shoot for a commercial a year and a half ago. As the article recounts, Marsen is a classically trained ballet dancer, who dropped out of the University of the Arts and has since:

gone rogue, dance-wise, taking three or four classes a day from studios all over New York City -- jazz, modern, tap, salsa, flamenco, belly-dancing, break-­dancing, West African, pole dancing, capoeira -- borrowing gestures and movements and boiling them all down into her own unique B-girl bouillabaisse.

Basically, she mixes a variety of different styles in a somewhat freelance manner. Krupnick had been looking for another project to work with Marsen on, and when he heard the latest Girl Talk album, he realized the basic similarities in style:

As Krupnick listened to the album, it struck him that Girl Talk makes music the way Anne Marsen makes dance. "I started to hyperventilate a little bit, the way you do when you get excited about something that you really want to come true," he told me.

And this is how art gets created. Of course, it's interesting that no one questions Marsen for mixing all different kinds of dances that she's learned from others into her own style -- but when Girl Talk does it, people complain about how it's "stealing" and "infringing." Either way, take these two individuals (along with a supporting cast) and you get this entirely new and entertaining movie as well.

Derivative art creating derivative art.

That this goes against the claims of copyright maximalists will, undoubtedly, be ignored by those copyright maximalists. Of course, there's a separate question here: which is what about the copyright on the film. Gillis releases all of the Girl Talk stuff under a Creative Commons license. But, it's a license that does not allow for commercial use (which some find hypocritical on his part). I doubt he would object to the film (if he did, the social backlash would likely be quite strong), but given that Krupnick is raising money via Kickstarter, someone could make an argument that this is "commercial use." Separately, if Krupnick actually tries to do something more with the movie, he'll almost certainly not be able to get E&O (errors and omissions insurance). Last year, I covered the ridiculous difficulty that RiP's filmmaker, Brett Gaylor had to go through trying to get insurance for his film -- showing us his massive spreadsheet of samples he tried to clear, before giving up.

But the bigger question is whether or not any of the copyright holders on the music Girl Talk uses would decide to step in as well. While they might not have sued Gillis, there's nothing saying that they have to let this movie go forward. Beyond the copyright issues in the samples in the album itself, now Krupnick also has to worry about synch rights, which appear to be one of the lower levels of hell according to various filmmakers I've dealt with in the past.

One can hope, that as with Gillis' original works, that any rights holders know better than to call the lawyers -- and it would be a great story if that actually happens. But, I certainly wouldn't be surprised (though, I'd be very disappointed) if this wonderful idea for a film runs into legal problems. Assuming that happens, it'll be yet another example of copyright not inspiring new creative works, but stifling them (though inspiring legal fees).

Filed Under: anne marsen, copyright, culture, dance, derivative works, girl talk, gregg gillis, jackob krupnick, movie, music

Could The Enterprise D Replica In Minecraft Be A Copyright Minefield?

from the isn't-copyright-law-great? dept

We've written a few times about the game Minecraft lately, including a post about the guy building a working computer in the game. Around the same time, a bunch of people were talking about the guy who built a full 1:1 scale model of the USS Enterprise D (from Star Trek: The Next Generation) in Minecraft: This is, indeed, quite cool, and it's inspiring other creations as well. Just recently we heard about a giant Bender from Futurama: Of course, all of this is raising some question. Public Knowledge points out how this can all conflict with some of the more ridiculous aspects of today's copyright law, and that this could be a very serious issue for people who are just doing something inherently cool without realizing it:

Why? Under US copyright law, a replica of a fictional design like a spaceship could be considered a "derivative work," meaning it is protected by the same copyright that protects Star Trek: The Next Generation. 

Viacom owns the Star Trek copyright.  If they decide to sue Halkun, the fact that he spent 10 (or 100) hours making his replica, that it's made out of digital blocks, or that he doesn't plan to make money on it may or may not protect him. Either way, in order to find out, he would have to hire a legal team to go up against Viacom.  That's a hard (not to mention expensive) way to find out that your USS Enterprise model does not infringe on anyone's copyright.

Who else might be in hot water? The way Minecraft works, if you want to play the game with a group of your friends (or strangers), you have to set up your own server. Let's say Halkun builds a replica of Hogwarts from Harry Potter (which, by the way, would be awesome) on your server.   In that case, you could be sued for secondary infringement just for running the server that contains this "infringing" content.

If you think that media lawyers have better things to do than sue you for modeling an imaginary magical castle, you're (unfortunately) mistaken. In 2007, J.K. Rowling sued for $50,000 because someone made a papier-mache replica of Hogwarts' exterior. At a religious festival in India.

When do we realize that copyright law simply isn't designed to handle today's digital age?

Filed Under: copyright, derivative works, minecraft

Are Bad Copyright Laws Killing Jazz And Harming Jazz Musicians?

from the play-it-again dept

We recently wrote about Daniel Pink's new book Drive and how there are some situations where money is not just the wrong motivator for creativity, but it can actually harm creativity. While some in the comments falsely interpreted that to mean money is never a motivator or that it somehow means everyone should give up their money, others did have many thoughtful responses. That discussion got Ray Dowd, a copyright litigator in New York, thinking about a variety of topics related to motivation and copyright, noting that if the key point of copyright is to create incentives for creativity, the studies covered by Drive certainly should be an important part of the larger discussion.

From there, he goes through a variety of situations where copyright is clearly harming creativity, rather than helping it, including a discussion on the bizarre notion that satire cannot be fair use, but parody can be. However, where it gets most interesting, is when he discusses how copyright, and the more recent draconian enforcement of copyright law, is having a massively negative impact on jazz and jazz musicians:

When the Copyright Society had its convention in New Orleans a few years back, I was struck by the plight of Jazz musicians: they didn't have the right to a compulsory license. So a bunch of white kids doing an exact cover of a Led Zep tune can force Led Zep to license the song at a cheap rate.

But Jazz - which remixes, rearranges and is an art form that is derivative - can't get a compulsory license, and the changes and modifications to the original can't be protected without an additional license from the copyright owner - even though a sound recording in a cover song can.

According to the jazz musicians, the licensing practices of copyright owners have put them out of making a living and basically strangled their creativity. It was a heartbreaking presentation. Jazz and its successors which rely on sampling, borrowing, remixing - all activities emanating from African-American traditions - have been severely penalized, to the point of practical extinction.

That's a clear, concrete (and, as a jazz fan, depressing) example of an area in which copyright is clearly doing the exact opposite of its intended purpose. I'm really curious to hear from defenders of the copyright status quo (or who believe in even stronger copyright protections) to see how they defend this situation. I'm also reminded, yet again, of James Boyle's excellent chapter on how soul music owes its very existence to the fact that copyright laws weren't enforced that strongly a few decades back (and, the laws themselves weren't nearly as limiting).

In the face of increasing examples of such copyright policies doing exactly the opposite of what they intend, how is it that our elected officials continue to buy the claims from a few entrenched industries, that copyright needs to be made even more strict? How many more musicians have to have their art and creativity stifled?

Filed Under: copyright, creativity, derivative works, jazz, music

Neil Gaiman And Todd McFarlane Fight Over Whose Derivative Character Is Owned By Whom

from the angels-in-thong-bikinis-in-the-courtroom dept

ChurchHatesTucker sends in the Associated Press report about the ongoing legal fight between writers/comic artists Todd McFarlane and Neil Gaiman, over who owns what rights to what characters. The CityPages blog actually has a version of the story with a lot more details. Frankly, the whole thing seems a little silly. McFarlane created Spawn, and later brought on guest writers. Gaiman did issue #9. Here's where it gets tricky. McFarlane (and two others) had left Marvel to start their own comic company, Image Comics, which published Spawn. Having been upset about how Marvel set up deals as "work-for-hire" (such that Marvel kept the copyright on any works done by artists/writers), Image was designed to be more creator-friendly, allowing them to retain their own copyrights.

All that sounds good, right? Except... what happens when you're talking about multiple artists all dipping into the same world? That's what caused the mess we're in now. Gaiman's Spawn introduced some new characters, which he claimed the copyright over. But, of course, those characters come out of the Spawn world, and thus, you could make the case, are clearly derivative of McFarlane's own characters. Potentially in an attempt to get around having to pay Gaiman royalties (this is the part that's very much in dispute) a later issue of Spawn introduced some new characters, which have some similarities to Gaiman's characters. And thus, the royalty fight is on. It sounds like there's some personal issues between Gaiman and McFarlane underlining all of this as well.

Honestly, the whole thing seems a bit silly, really. Though, it's a situation created by today's ridiculous level of copyright protection. Work-for-hire deals certainly have their own trouble, but when you give out separate copyrights to lots of different people involved in a project, you also end up with a bit of a thicket, which appears to be the problem McFarlane faced. In the end, though, Gaiman created a derivative work for the Spawn world and should be happy that others built on his works to do more.

In fact, to make the case against Gaiman, I'd like to quote one Neil Gaiman a couple years ago, talking about a similar lawsuit involving derivative works based on Harry Potter:

My main reaction is, having read as much as I can about it, given the copyright grey zone it seems to exist in, is a "Well, if it was me, I'd probably be flattered".... I can't imagine myself trying to stop any of the unauthorised books that have come out about me or about things I've created over the years, and where possible I've tried to help, and even when I haven't liked them I've shrugged and let it go.... My heart is on the side of the people doing the unauthorised books, probably because the first two books I did were unauthorised, and one of them, Ghastly Beyond Belief, would have been incredibly vulnerable had anyone wanted to sue Kim Newman and me on the grounds that what we did, in a book of quotations that people might not have wanted to find themselves in, went beyond Fair Use.

Seems like perhaps Neil Gaiman involved in this lawsuit should talk to that Neil Gaiman.

Though, as CHT notes in his submission (quoting from the AP report), at least this trial gave us: "Images of the characters in dispute, including the angels in thong bikinis, were projected in Crabb's courtroom throughout the daylong hearing." So maybe it's not all bad.

Filed Under: copyright, derivative works, neil gaiman, spawn, todd mcfarlane, works for hire

The Myth Of Originality...

from the it's-not-what-you-think dept

Nina Paley alerts us to a neat writeup (with illustrations) that she did, discussing the concept of originality, and why it's so often misconstrued. First, things that many people think are "original" usually aren't very original at all. They tend to be derivative in some way or another -- a point that we've made here many times. And yet, many people seem to think that there's some sort of objective standard for originality, and that something that involves a direct copy of something else as part of the process can't count as original (though, they conveniently ignore it when "the greats" like Mozart or Shakespeare did a direct cut-and-paste type of copying in their own works).

Paley then goes on to make a second point: which is that the traditional gatekeepers of culture, for all their talk of the importance of originality (whenever they talk down any kind of copying) are actually more likely to stomp on anything truly original, because there is no "proven market" for it. A movie has to fit a certain formula. A hit pop song must meet a series of pre-programmed conditions. No originality allowed.

So where is originality really? It's not an intrinsic value in the work, but in the perception of how people view a work. I find things like Kutiman's music tremendously original and unique, but in the comments here, critics have decried his efforts as "cut and paste copying" of little value. So different people have different takes on originality. Why should we set in place laws that enforce some sort of official standard on what is, and what is not, original, when it's our own perception that really determines what is original?

Separately, Paley recently also put together this neat short film that does a nice job of demonstrating that all artwork is derivative:

Filed Under: creativity, derivative works, gatekeepers, nina paley, originality

Answers To Textbook Questions: Copyright Violation?

from the oh-come-on... dept

Just a few weeks ago, in writing about the pointlessness of "derivative rights" in copyright law, I questioned the "example" of an answer key for a textbook, noting that there was no reason to have it covered by copyright:

But, to me, this seems ridiculous on a basic common sense reading. I can't fathom how anyone can (at least honestly) claim that copyright really has an idea/expression dichotomy and then say that Section 106(2) makes any sense at all. What's wrong if someone else wants to produce an answer guide to an original textbook? Why would it ever make policy sense to deny such a right? In most cases, you would assume that the original creator of the textbook would have a better understanding of the topics and the answers, so an "unauthorized" answer key is unlikely to be as valuable. But why should it be prevented? On top of that, if the answer key is just answering questions, then how could it be infringement? Those answers are accurate "facts" responding to questions. If an answer key is infringing, then wouldn't that make student answers infringing as well?

Apparently, though, others don't agree -- and they're the folks who make the rules. Michael Scott points us to the news that a court has ruled that answers to a textbook questions are a derivative work, and someone who was selling such answers online was infringing on the copyright of the textbook publisher. This still makes no sense to me. First, there's no "copying." Second, isn't answering a question a "factual" statement? How can answering a question be copyright infringement? From a policy and common sense perspective it makes no sense. But, that's what you get with the way copyright law is these days. It's not about the incentive to create, but about stifling competition and free speech. In the meantime, I can't wait to see the next student sued for copyright infringement for answering his homework questions.

Filed Under: answer key, copyright, derivative works, textbooks

Why Do Content Creators Get Control Over Derivative Works?

from the trying-to-figure-it-out dept

Doug Lichtman's latest IP Colloquium takes on the question of derivative works, mainly discussing the infamous Harry Potter Lexicon reference guide that a judge recently barred from publication. In the program, Lichtman talks with the General Counsel of Warner Bros. studios, Jeremy Williams, and Anthony Falzone from Stanford's Fair Use Project. Unless you're really into some of the very very narrow details of copyright law (such as the differences between the various sections in copyright law), much of the discussion may not be that interesting. There were a couple of things worth noting, however. I tended to think that Williams' views on fan fiction made a lot of sense -- where he basically said that studios recognize that it's a bad idea to stop fan fiction, and that the studios have to learn to let go of trying to control everything. I was actually quite surprised that Lichtman pushed back on this point, with an argument that, to me, makes little sense: suggesting that if an artist could potentially at some future time benefit from creating their own such works, then any derivative work should be seen as infringing and likely stopped.

I thought that Falzone did an excellent job rebutting such suggestions from Lichtman later in the podcast, leading to some points at the end where Lichtman recognizes that many of the issues around whether or not derivative works should be allowed are actually redundant to questions of fair use. But he does claim that there are a few situations where fair use and derivative works don't overlap. However, I had trouble finding any that make sense. Lichtman gave an example of a teacher's answer key to a college textbook, where he notes that the answer key probably doesn't substantially copy the original work, but could be controlled by the original publisher via a "derivative work" claim of Section 106(2) in the Copyright Act.

But, to me, this seems ridiculous on a basic common sense reading. I can't fathom how anyone can (at least honestly) claim that copyright really has an idea/expression dichotomy and then say that Section 106(2) makes any sense at all. What's wrong if someone else wants to produce an answer guide to an original textbook? Why would it ever make policy sense to deny such a right? In most cases, you would assume that the original creator of the textbook would have a better understanding of the topics and the answers, so an "unauthorized" answer key is unlikely to be as valuable. But why should it be prevented? On top of that, if the answer key is just answering questions, then how could it be infringement? Those answers are accurate "facts" responding to questions. If an answer key is infringing, then wouldn't that make student answers infringing as well?

In listening to the podcast, the only thing I could think was that I can't come up with a single example where it makes sense to give the original creator the right to derivative works. I recognize that may be an extreme, but take a look at cases like recent banning of an unauthorized (and, apparently, not very good) sequel to Catcher in the Rye. I can't see any reasonable explanation for how a society that prides itself on freedom of expression and encouraging creative works would ever deny such a right. It does not harm the original work in any way. It does not remove the ability of the original creator to create their own derivative work in any way. And it's hard to imagine a situation in which an unauthorized derivative work would take away from the ability of the original creator to profit. Does anyone honestly think that if J.D. Salinger wrote an actual sequel to Catcher in the Rye people wouldn't buy it because they'd already bought the unauthorized sequel written by some other guy?

So if it's true that copyright only protects the expression and not the idea, how does control over derivative works make any sense at all?

Filed Under: copyright, derivative works

Remixing Is Creating And Original -- It's Not Just Derivative Copying

from the understanding-creativity dept

At the beginning of the month we were one of the first to write about the amazing Thru-You "album" created by a DJ named Kutiman, who took individual sounds off of YouTube and mixed them into a full album. I've always been a believer in the concept that remixing something is a creative endeavor in its own right, but I'd never seen the point driven home quite as clearly as in this album. Not suprisingly, Kutiman has received plenty of well-deserved attention for the project, and Wired is running a great interview with him that's well worth reading. The idea that what he's done is almost certainly illegal and copyright infringement (he seems incredulous at the idea) should be a clear indication that something is wrong with the current copyright regime.

But, again, there's this false belief out there that "remixing" is simply copying. But I defy anyone to explain how taking a simple kid playing a scale on a trumpet could become integral to an entire (great) funk song. Here's the trumpet bit: And here's the full song: Or how about this basic trombone solo becoming such a haunting and compelling part of this dub reggae song (trombone comes in at 42 seconds). Here's the trombone: And here's the full song: To say that's "copying" or even just derivative is insulting to the amazing creativity and work of Kutiman to blend all these totally separate sounds into something amazing. Just as a musician plays notes on an instrument, Kutiman used YouTube as his instrument and created something amazing and wonderful... that probably breaks a ton of copyright laws. It's difficult to see how anyone could claim that's not a massive problem.

Filed Under: copying, derivative works, kutiman, remix, thru-you