It Doesn't Take A Genius To Recognize How Dumb Genius' Lawsuit Against Google Is Over 'Stolen' Lyrics

from the not-how-any-of-this-works dept

Earlier this year, we wrote about what we referred to as "the dumbest gotcha story of the week", in which the annotation site Genius accused Google of "stealing" lyrics from their site -- which they "discovered" by a modestly clever use of curly apostrophes and straight apostrophes as hidden markers in their own posting of lyrics, which they then spotted on Google. As we explained, the actual evidence did not suggest at all that Google was copying the lyrics from Genius. Instead, as became obvious, Google (like most other lyrics sites on the internet), licenses lyrics from LyricFind. Indeed, it later came out that basically every site that uses LyricFind had the same "watermarked" lyrics.

In our original post, we went through all of the various legal arguments that some were suggesting Genius could use against Google, and highlighted how each of them was laughable. The copyright doesn't belong to Genius, so there's no copyright claim. Also, as we noted in the original post, when sites like these "license" lyrics from publishers, they're often just licensing the ability to guess at what the lyrics are. The publishers themselves often don't have their own lyrics. Indeed, we pointed out that some publishers use the various lyrics sites as the source for their own lyrics that they licensed. So everyone's just kind of making it up as they go along, and there's no proprietary right to your version of the lyrics vs. someone else's.

However, for reasons I do not understand, Genius has decided to go ahead and sue both Google and LyricFind over this. The complaint is in state court in Brooklyn, and... it's bad. I mean, if people were to put the complaint on Genius and "annotate" it, most of it would just be people laughing at how bad the arguments are.

And, honestly, this entire lawsuit is strategically idiotic for Genius -- a site that regularly takes content from elsewhere on the internet for the purpose of annotating it. Indeed, I used to regularly see Techdirt posts hosted on Genius for others to annotate (though now I'm looking and it appears that Genius has gone back to focusing just on lyrics, and stopped hosting annotated blog posts).

There are no copyright claims, of course, in the complaint, because Genius holds no copyright here. Instead, the claims are just grasping for anything. And I can't see the lawsuit getting very far. The strongest claim (and it's not that strong) is that there's a competition issue with Google displaying lyrics in its "one box" at the top of search results. The argument is that by providing this information directly, rather than passing you on to a link to Genius, Google is somehow being anti-competitive:

When virtually all mobile users and many desktop users search for song lyrics, and Google returns an Information Box containing the requested song lyrics, the Information Box is displayed in such a manner that the user cannot see any other search results without first scrolling down, as shown below.

Moreover, Google’s lyrics Information Boxes frequently appear in search results as a part of larger search features that include links to Google-owned revenue-generating products, such as YouTube and Google Play, as shown below. Specifically, many lyrics Information Boxes prompt users to play the music video on YouTube or stream the song on Google Play.

Of course, the obvious response to this is that there are perfectly legitimate, non-anti-competitive reasons to display the lyrics as part of the search result: because that's a much better experience for end users. That's why Google licensed the lyrics in the first place. The argument that Google is unfairly then linking to its own "revenue generating products" is potentially interesting, but directly undermined by Genius' own screenshot showing that Google also links to competing services alongside its own links (indeed, in the screenshot they used to suggest anti-competitive behavior, the top link is actually to competitor Spotify, not Google!).

Soon after this, Genius undermines its own argument even more by highlighting that some Google lyrics are different from Genius':

For example, as shown below, Google’s Information Box results display inaccurate lyrics for the song “Perfectly Wrong” performed by Shawn Mendes. Genius’s website, on the other hand, displays the accurate lyrics.

They're trying to make a competition argument here -- similar to Yelp's various complaints against Google -- that Google is favoring its own inferior quality information for the information box at the top, when it should pull from better sources, like Yelp or Genius. But... doesn't that completely undermine the idea that Google is just copying Genius' version of the lyrics (over which Genius has no proprietary interest in the first place)? If the complaint is just that Genius doesn't like that Google doesn't display its lyrics (meaning, the dispute is really that Google isn't paying Genius for a license instead of LyricFind), then that seems pretty damn weak. There is no requirement that Google has to pull or license from Genius, and there's even a potential Section 230 defense, that Google's choice of whose lyric's to display are immune from liability.

That leaves just the pure competition question -- but the easy response to that is, again, that Google is providing users a better overall experience, and under current antitrust standards, it's tough to build a case around that.

Anyway, after complaining that Google doesn't use Genius for lyrics, the complaint shifts to whining about when it does use Genius for lyrics, calling it "misappropriation." There is an attempt to argue that Google copied directly from Genius (rather than from LyricFind, or another lyrics licensing service Musixmatch) based on a single song, "Panda." Genius highlights that on a specific day in June of 2016 (?!?), the lyrics on Google appeared to match directly with Genius' version, but not the versions found on sites that licensed from LyricFind or Musixmatch. Of course, it's possible that the sites that Genius used to check those others databases were not up to date. And, more importantly, Genius still has no proprietary interest in the lyrics, so there's simply no argument for why any of this should even matter.

There are other self-contradictions in the lawsuit. Genius complains that after they alerted Google to copying of its version of lyrics, Google and LyricFind did not immediately remove those copies. But then, later, when both companies changed their versions of the lyrics, Genius complains again that this is them trying to hide the evidence.

The wholesale removal of Watermark #1 following the publicity of the Wall Street Journal article suggested to Genius that a deliberate effort was being made to conceal the misappropriation of lyrics from Genius’s website, and Genius suspected that it was likely such misappropriation was continuing unabated.

Damned if you do, damned if you don't.

Genius also notes that it added a new watermarking system later this summer, no longer just using the curly vs. straight apostrophes, but also using two different types of blank spaces.

This watermark involves replacing the 15th, 16th, 19th, and 25th spaces of each song’s lyrics with a special whitespace character called a “four-per-em space.” This character (U+2005) looks identical to the normal “space” character (U+0020), but can be differentiated via Unicode character codes readable by a computer. If one ignores the first 14 spaces of a song’s lyrics, then interprets the four-per-em spaces as dashes, and regular spaces as dots, the sequence spells out the word “GENIUS” in Morse code, as shown below.

This is at least clever, but not sure how it has a legal bearing on the case. What is notable, at least, is that Genius claims that Google started removing the apostrophe watermarks, but missed these new watermarks, suggesting that if it was sourcing these lyrics from Genius, that it had set up a process to remove the known watermarks, but not the unknown watermarks:

Even more egregious, with regard to lyrics in Group C (lyrics featuring both Watermark #1 and Watermark #2), Genius identified numerous instances in which Watermark #1 was not present in Google’s lyrics Information Box, yet the same lyrics featured Watermark #2, the details of which had not previously been made public.

Again, this is clever, but so what? What is the legal basis that would make this violate the law? That's not clear. Both Google, LyricFind, Genius and others all have a license to the lyrics, and part of that license is the right to display whatever version of the lyrics they want. Adding in silly watermarks doesn't create a quasi property right in "your" version of the lyrics.

When we get to the actual claims in the lawsuit, Genius argues that LyricFind scraping its site is a breach of contract. Of course, this comes just months after a court said that scraping of public information on website is not a violation that can be litigated. That was in the 9th Circuit, which is not binding on a NY state court, but it is notable.

I have a difficult time seeing this lawsuit getting very far, though perhaps some courts will take a flyer on the competition claims. That's at least more reasonable than the misappropriation arguments, that appear to be pure nonsense. Still, it's quite amazing that a site whose entire reason for being is to annotate others' content is now arguing that no one can make use of content (which it doesn't even have any proprietary interest in) from its own site.

Filed Under: appropriation, competition, copyright, lyrics
Companies: genius, google, lyricfind

The Shittiness Of IP Law Has Taught The Public That Everything Is Stealing And Everyone Is Owed Something

from the the-market-value-of-seven-second-loop dept

In an article that's actually a bit (but just a bit) more thoughtful than the headline applied to it ("How Corporations Profit From Black Teens' Viral Content"), Fader writer Doreen St. Felix tackles the cultural appropriation of creative works. Sort of.

While the article does quote from a 2008 essay about the historical cultural appropriation of black artists' works by record labels, etc., the article does not point out any specific appropriation occurring here -- at least not in terms of the two creators St. Felix has chosen to write about. And it has nothing to say about how these corporations are "profiting" from this supposed appropriation.

One of those is Kayla Newman, whose offhand comment in a Vine video birthed a new slang term.

In the video everyone knows, uploaded on June 21st, 2014, Kayla admires her precisely arched eyebrows: “We in this bitch. Finna get crunk. Eyebrows on fleek. Da fuq.”

Newman's Vine video has generated 36 million loops, moving "on fleek" from her lips to the Urban Dictionary and beyond. Some of those stops have been corporate. St. Felix points to IHOP and Denny's Twitter accounts' use of the phrase in an attempt to "feign cultural relevance."

That appears to be the extent of the "appropriation." No one's monetizing the phrase, nor have these corporate entities done damage to anyone but themselves by deploying it. Newman hasn't seen any money from creating the slang term, although it's not for a lack of trying.

“I gave the world a word,” Newman said. “I can’t explain the feeling. At the moment I haven’t gotten any endorsements or received any payment. I feel that I should be compensated. But I also feel that good things happen to those who wait.”

The other artist quoted in the Fader article is a dancer named Denzel Meechie. Meechie performs improvised dance routines to various songs. This has earned him millions of views on YouTube. It has also seen his original account shut down by the rightsholders of the songs he dances to.

In mid-September, YouTube shut down Meechie’s channel, which had accrued hundreds of thousands of subscribers. “I had too many copyright strikes,” he said, referring to his use of songs without explicit legal permission from labels.

Ironically enough, some artists whose labels have issued takedowns have actively sought out Meechie because of his viral cachet.

According to Meechie, labels contact YouTube and demand his videos be taken down, often without the knowledge of their own artists, some of whom pay him directly to help boost their buzz. “And it’s crazy, you know, because the artists ask me to put the videos up.”

That's what happens when you turn over copyright enforcement to algorithms.

Once again, we're not seeing much evidence of corporate cultural appropriation of black artists' creations. But the essay St. Felix quotes from does have something relevant to say about the intellectual property power structure.

“Black artists had no input in [copyright law], and examination reveals that it is in some respects incompatible with Black cultural production in music,” writes Greene, arguing that multiple copyright standards were specifically structured to preclude black blues artists, especially women, from claiming ownership.

It's not just black artists, though. It's all artists. Intellectual property laws have been refined by corporations and their lobbyists to provide the most protection for those with the means to benefit from extended copyright terms and ridiculously generous readings of trademark claims: corporations.

But K.J. Greene's next assertion (from her cultural appropriation essay) goes right off the rails.

“The idea/expression dichotomy of copyright law prohibits copyright protection for raw ideas,” Greene wrote. “I contend that this standard provided less protection to innovative black composers, whose work was imitated so wildly it became ‘the idea.’”

Opening up the law to include protection of ideas won't stop the IHOPs of the world from borrowing slang from a teen on Vine. It will, however, be exploited thoroughly by the same labels and studios that exploited black artists in the past. It won't level the playing field. And beyond all of that, it's just a stupid thing to say.

As is some of this, when St. Felix tries to tie this all together.

In some sense, the roaring debates over white appropriation of black slang, music, and dance have worked as an avatar for circumstance of the independent black creator in the digital age. But the analog is insufficient. Intellectual property and viral content should be interrogated from a legal standpoint[...]. The copyright statute under which Meechie’s YouTube account got flagged and then taken down should be re-examined, as should the legal gray areas that leave individual creators like Newman in the cold.

We can agree that the killing of Meechie's original YouTube account should be examined more closely, but the fault lies with labels that have opted for efficiency over accuracy -- the deployment of bots that only recognize certain arrangements of ones and zeroes, eliminating any of the nuance or context that make fair use a viable defense.

As for Newman, it's entirely unclear how much income St. Felix -- or even Newman herself -- expects a viral video loop that birthed a slang term to generate. Users can't monetize Vine loops, at least not directly. Pursuing someone for copyright infringement (if they used the Vine loop in a YouTube compilation video, for example) would be of limited usefulness.

If the concern is limited to the worldwide "unauthorized" use of "on fleek," the route for monetization runs through the trademark office. Unlike copyright, trademark doesn't apply automatically. It must be applied for, accepted and -- most importantly -- put to use. These steps aren't cheap.

But why should anyone expect this contribution to the English language to generate income? It's two words from a seven-second video, and the only way it would conceivably be protected would be as a trademarked phrase, which would only prevent others from using it under specific circumstances for specific goods/services. It will not return "ownership" to Newman. Nor will it rebalance the IP playing field. There's arguably nothing protectable here, no matter how Newman, St. Felix or essayist K.J. Greene feel about it.

Yes, corporations are opportunists who will often use current slang to coat their advertising with "How do you do, fellow kids?" vibes. But they're not co-opting cultures. They're just acting the way we expect corporations to act: make various stabs at youthful relevance with (usually) awful results. St. Felix's article does a great job tracing the origin of the phrase, but never comes close to making a point about cultural appropriation or tying this supposed act to corporate profits.

The point that does come through is that something is wrong with IP laws, but the fixes suggested here would only make things worse. And even embracing the ridiculous concept of extending IP protections to unformed ideas still wouldn't turn two words into money. Being outraged that corporations frequently behave in a manner that only furthers their own interests is a nonstarter. Stretching the shameless repurposing of slang by corporate Twitter accounts and the merciless actions of infringement bots to be indicative of a new era of exploitation of black artists is reading far too much into the predictable actions of both corporations and the bots that work for them.

Filed Under: appropriation, copyright, culture, expression, idea, on fleek, ownership, property, stealing, takedowns

A Manifesto For Creativity In The Modern Era

from the join-in dept

Multiple people have passed along this fantastic manifesto of modern creativity that was put together by five curators of an exhibition for Les Rencontres Arles Photographie called "From Here On."

One friend noted just how inspiring that graphic alone was, but reading the more detailed manifesto is worthwhile as well. It talks about just how much the internet and digital technologies have changes our lives, and changed the way art and creativity works -- in undoubtedly positive ways. Here's just a snippet of the larger piece:

The growth of the Internet and the proliferation of sites for searching out and/or sharing images online—Flickr, Photobucket, Facebook, Google Images, eBay, to name only the best-known—now mean a plethora of visual resources that was inconceivable as little as ten years ago: a phenomenon comparable to the advent of running water and gas in big cities in the nineteenth century. We all know just how thoroughly those amenities altered people’s way of life in terms of everyday comfort and hygiene—and now, right in our own homes, we have an image-tap that’s refashioning our visual habits just as radically. In the course of art history, periods when image accessibility has been boosted by technological innovation have always been rich in major visual advances: improved photomechanical printing techniques and the subsequent press boom of the 1910s-1920s, for instance, paved the way for photomontage. Similar upheavals in the art field accompanied the rise of engraving as a popular medium in the nineteenth century, the arrival of TV in the 1950s—and the coming of the Internet today.

Digital appropriationism
Across-the-board appropriation on the one hand plus hyper-accessibility of images on the other: a pairing that would prove particularly fertile and stimulating for the art field. Beginning with the first years of the new millennium—Google Images launched in 2001, Google Maps in 2004 and Flickr the same year—artists jumped at the new technologies, and since then more and more of them have been taking advantage of the wealth of opportunities offered by the Internet. Gleefully appropriating their online finds, they edit, adapt, displace, add and subtract. What artists used to look for in nature, in urban flaneries, in leafing through magazines and rummaging in flea markets, they now find on the Internet, that new wellspring of the vernacular and inexhaustible fount of ideas and wonders.

What I love most about this is how inclusive it is, and how much of it is about recognizing and embracing what an amazingly creative time this is for artists. All too often, we hear of artists who decry such things, who complain about the fact that their club doesn't feel as exclusive any more. For artists and an art exhibit to not just embrace, but joyfully celebrate the way creativity works today, while recognizing how these tools mean that anyone and everyone are creating art all the time, is really wonderful to see.

Filed Under: appropriation, art, creativity, manifesto, sharing
Companies: ebay, facebook, flickr, google, photobucket

Has Shepard Fairey Learned That He's Been Hypocritical When It Comes To Others Appropriating His Works?

from the one-might-hope dept

Shepard Fairey, the well-known appropriation artist who created the famous Obama "Hope" poster is in a well-publicized legal dispute over the image of that poster, with both the Associated Press and the photographer who took the original photo. It's a fascinating fair use/copyright lawsuit, but it's made a lot more complex (and not in a good way) by the fact that Fairey has been his own worst enemy, in multiple ways, throughout the lawsuit. The biggest -- and most ridiculous -- was the fact that he flat out lied and destroyed evidence. It's hard to think of anything more stupid, frankly. He had an incredibly strong fair use claim just based on using the photo that everyone knew he used -- and rather than focus on that, he clouded up the whole thing by pretending it was a different photo and destroying evidence. Those moves completely muck up the case and make it that much harder to judge it on the merits.

But there's another part of Fairey's actions that has been equally troubling: he's been known to aggressively go after others for copying his work, despite the fact that the entire basis of his work is appropriation art. Fairey has used his lawyers in a manner not unlike the recent case we wrote about involving the estate of appropriation artist Roy Lichtenstein threatening a band for using an image that was copied not from Lichtenstein's painting, but from the same original source material.

However, it looks like Fairey's rather abrupt lesson in copyright law may be changing his views somewhat -- though we'll have to see if they really stick. Jay Matteo alerts us to a blog post by Fairey, responding to some questions about a poster used in the movie Iron Man 2 that is stylistically similar to Fairey's "Hope" poster, and Fairey says:

I have received several inquiries about whether or not I was involved in a piece of art seen in Iron Man 2. I'm friends with the Iron Man movie's production designer Michael Riva who, along with his wife Wendy, was a big Obama supporter. He asked if I'd mind a HOPE poster spoof in Iron Man and I said "of course not". I did not personally design the image, nor was I paid for it. All of the Obama HOPE spoofs, positive or negative, are a reminder of the power and importance of grassroots activism to affect things. Additionally, neither is it possible to copyright a style, nor would I want to restrict visual dialog by discouraging others from paying tribute to styles I have used.

That last sentence is interesting, given that he seems to have done exactly that many times over in the past -- especially when it came to his "OBEY" campaign. If he's really changed his mind, at the very least, he should admit that he was wrong in the past and now he realizes that. Otherwise, his statement rings pretty hollow.

Filed Under: appropriation, copyright, shepard fairey

The Intellectual Property Asshole Competition

from the have-fun-with-it,-people dept

Now this ought to be fun to watch. We've written plenty of stuff about the ongoing legal fight between artist Shephard Fairey and the Associated Press. And, every time we write about it, someone always points out that Fairey is often just as bad as the AP. Despite being an "appropriation" artist, who regularly uses the works of others in his own work (something we think is great), he's also been known to legally threaten others for doing the same with his own work. So, it looks like someone has decided to poke both with a stick, to see who gets provoked first. That someone is artist Evan Roth. ChurchHatesTucker alerts us that Roth has launched his "Intellectual Property Asshole Competition" where he is selling, via his website, hand-painted version of both the Mannie Garcia/AP photo and Shepard Fairey's poster... and will see who is the first to send him a cease and desist. While we never think it's a good idea to infringe for the sake of infringement, this ought to be fun to watch.

Filed Under: appropriation, cease and desist, competition, copyright, eric roth, shepard fairey
Companies: associated press

Yes, Artists Build On The Works Of Others... So Why Is It Sometimes Infringement?

from the it's-called-inspiration dept

Following on our story the other day about copyright questions concerning the "appropriated art" that became the iconic Obama campaign poster, the Wall Street Journal has an interesting article exploring the fine line between derivative works and transformative works in the art world. As you probably know, derivative works (e.g., making a movie out of a book) are considered copyright infringement, but transformative works are not.

Of course, how you define a transformative work is a big open question. The article doesn't discuss it here, but for some unexplained reason, courts have mostly determined that there is no such thing as transformative works in music -- so sampling is mostly seen as infringement. The article, instead, focuses on visual artwork, though, where courts have ruled in different ways, depending on the artwork -- leading many to consider this to be a "gray area."

It probably won't surprise many, but to me the whole concept seems silly. The history of creativity has always included the concept of taking the ideas of others (those who influenced you) and building on them. That's the history of storytelling. It's the history of joke telling. It's the history of writing. It's the history of music. It's the way art is created. And that's a good thing. Art never springs entirely from 100% original thought. It's an amalgamation of what else is out there -- put together in a new way. What's even more ridiculous is that, in almost every one of these cases, it's difficult to see how the "original" complaining artist is even remotely "harmed" by the follow-on artists. If anything, it's likely that the later art would only draw more attention to the original artist. It's just that we've built up this ridiculous culture of "ownership" of ideas, where people think that someone else doing something creative by building upon my work is somehow "stealing." It's a shame, and it's incredibly damaging to our cultural heritage -- which, of course, is exactly the opposite of what copyright law is supposed to be about.

Filed Under: appropriation, art, copyright, derivative, inspiration, transformative