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>> Copyright
>> 2003
Town Meeting
 COPYRIGHT
TOWN MEETING: Cleveland, April 12, 2003
Copyright for
Artists and their Public:
Artists’ Rights and Art’s Rights
Cleveland
Museum of Art
in
association with the
Case Western Center for Law, Technology and the Arts
Sponsored
by:
Center for Law, Technology and the Arts, Case Western Reserve
University School of Law
Cleveland Intellectual Property Law Association
Americans for the Arts
Meeting
Report
by Julia Kipnis
Speaker
Biographies | Resources
|
Summary Report
Welcome
and Introductions
Craig
Nard and Leonard Steinbach, Welcome
David Green, Introduction
KEYNOTE
ADDRESS
June Besek, Copyright and the Digital Landscape
ART
& WORK: COPYRIGHT, CONTRACTS AND WORK-FOR-HIRE
Alberta Arthurs, Introduction
Maureen A. O’Rourke, Creators’ Rights
and the Aftermath of the Tasini Case
Richard Kelly, An Artist’s Perspective
Deborah A. Coleman, The Museum’s Concerns
ACCESS
AND USE: COPYRIGHT AND THE PUBLIC DOMAIN
Mark Avsec, Misappropriation: Criteria for Establishing
Copyright Infringement
Mark Gunderson,
A Musician’s Experience Working Online
Walt Seng, A Photographer’s Experience
in the World of Copyright Law
WELCOME
AND INTRODUCTIONS
Craig Nard and Leonard Steinbach
Craig Nard welcomed participants, noting the interplay between
technological innovation and artistic creation and expressing
great interest in hearing discussion of the role of copyright
in this interplay. As NINCH Noardmember and Chief Information
Officer for the Cleveland Museum of Art, Leonard Steinbach
was delighted to be able to host the town meeting in part
because the Cleveland Museum prides itself on being a leader
in the use of technology to disseminate information and is
keen to further this in an articulation of the role of copyright.
Thus he noted how valuable the conference will be in the furtherance
of the museum’s further technological goals.
David Green, The Copyright Town Meetings
David Green, Executive Director of NINCH, thanked Craig Nard
for sponsoring and Leonard Steinbach for hosting the 22nd
NINCH Copyright Town Meeting. He thanked Americans for the
Arts and the Cleveland Intellectual Property Bar Association
for co-sponsoring the event.
Green
described NINCH as a coalition of more than 100 organizations
and institutions from across the cultural community working
on the issues that need to be resolved for the successful
mounting of an online, networked cultural heritage. Building
an accessible and affordable online world, rich in material
of all media, from medieval manuscripts to touchable three
dimensional objects is an enormous task, requiring thousands
of people and institutions working together across the globe.
Copyright
law had emerged over the last decase as “the key that
can allow or deny the richness of such a space.” Without
an international intellectual property regime that would allow
the global cultural community to accomplish the task legally
and economically, the goal would simply be unattainable.
As part
of this effort, NINCH has been holding Copyright Town Meetings
to bring the different sections of the cultural community
together to share basic information about copyright in the
digital age, to hear different opinions and to begin developing
practical solutions to current problems.
After
reviewing the territory covered in recent Town meetings, Green
declared that the Cleveland meeting would focus squarely on
the arts and explore the impact of copyright law on individual
artists and their public in the digital world. He then introduced
the three major panel topics:
-
Issues
of Art and Work. When an artist goes to work for a particular
company or organization what are the rights and issues
to keep in mind? Who owns what? What can be negotiated?
What should the artist be sure not to sign away?
-
Recent
Legislation. What has recent legislation done to our ability
to access and reuse copyrighted material on the Internet?
What are the hurdles? What can you do legally with online
material?
-
The
Artist’s Perspective. The floor goes to two artists:
a photographer and musician who will discuss their own
experiences with the legalities of copyright.
 Back
to top
KEYNOTE
June Besek,
Copyright and the Digital Landscape
June Besek
opened with a masterful overview of copyright law and the
impact of networked technology. She explained that the power
to create copyright and patent law comes from Article 1 §
8 of the Constitution which provides that Congress shall have
the power “[t]o 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 discoveries.”
In the eighteenth century, "Science" essentially
meant learning, and the creation of knowledge, and thus copyright
had clearly been designed for the public good.
Besek
explained that the first U.S. copyright law was passed in
1790, soon after the Constitution was ratified. It has evolved
a great deal over the years, as the first law only applied
to maps, charts and books. It has gone through several major
revisions, most recently the Copyright Act of 1976, which
itself has been amended several times.
The
Basics
Turning to the basics of copyright law, Besek explained that
a work of authorship was either protected by copyright or
was in the public domain. If in the public domain it is free
for anybody to use. If it is protected by copyright, then
free public use is limited. What does it take for a work to
be copyright-protected? There are two requirements: it has
to be an original work of authorship; and it must be fixed
in some tangible, physical medium.
Besek
noted that originality under U.S. law is a very liberal standard.
It simply means that the work cannot be copied from someone
else’s work, and it has to have a modicum of creativity
- whether the work is good art or bad art is of no consequence.
The tangible
medium can be almost anything from paper, to film, to compact
discs. The basic categories have expanded from maps, charts
and books to include literary and musical works, dramatic
and choreographic works, pictorial, graphic and sculptural
works, motion pictures, sound recordings and architectural
works. However, she said that even copyrighted works are not
completely protected. There are certain aspects of every work
that are excluded from protection. Specifically, copyright
does not protect ideas or facts. One may freely use ideas
or facts as long as the expression of these ideas and facts
is not being used. Besek further noted the extreme difficulty
that sometimes occurs when trying to determine exactly what
constitutes expression and what constitutes fact.
Ownership
Turning to the topic of ownership, Besek emphasized that copyright
is a property right, although intellectual property is different
from other forms of property because it is intangible. The
distinction between the intangible rights and the material
object in which the copyright is embodied is a crucial one.
One may own the object and not the rights or the rights and
not the object.
Besek
illustrated this idea by showing a favorite etching of hers
that she purchased in England of Wells Cathedral. Although
she owns the etching, she does not own the underlying copyright
and thus does not have the right to reproduce it or sell copies
of it. Similarly, when someone donates a piece of art to a
museum, they do not necessarily donate the rights that go
with that work.
Who does
own the copyright in a work? Under the law, it is usually
the human creator. If there is more than one author, then
it is a joint work and both own the copyright. Besek explained
that there is one very important exception to this rule called
the “work made for hire” doctrine. When a work is
made for hire, the hiring party is considered the author.
A work may be made for hire two ways: it can be created by
an employee in the course of employment; or it can be specially
ordered or commissioned where the parties have agreed in writing
that it will be a work made for hire. Only certain categories
of works are eligible to be commissioned works made for hire.
Transfer/Assignment
of Rights
Whoever is the initial owner of a copyright is free to transfer
it to someone else. Besek reiterated that the copyright does
not automatically transfer with the transfer of the physical
object. Under the law, all transfers of copyrights must be
by a signed document. Further, one does not have to transfer
all of the rights that go with a copyright together. For example,
an author can transfer just the right to publish his or her
work in the English language or may license the right to create
a movie from their work. She further noted that nonexclusive
licenses of copyright rights need not be in writing, but often
are.
Copyright
Notice
Until 1989, copyright notice, in the form of the copyright
symbol, ©, was required on all copyrighted works published
in the U.S. Under the 1909 Copyright Act, if a work was published
without notice, it went into the public domain, meaning it
was free for unencumbered public use. The 1976 Act was a bit
more forgiving, but one could still lose rights to the work
if it was published without notice. Today, notice is not required,
but many still use it for its practical function in ‘staking
out’ territory and letting the public know that someone
owns the rights to a particular work. Besek noted the significance
of this practicality due to the fact that there is much public
confusion concerning the copyright symbol. Many think that
if a work lacks the symbol, it is free for the taking.
Registration
The other formality Besek addressed was copyright registration.
She noted that although many believe that copyright protection
only comes into being upon registration at the Copyright Office,
in fact it exists when an original work is created and fixed
in a tangible medium. It is not necessary to go to the Copyright
Office. Second, registration, although not necessary, does
offer some advantages. First, it is required for a work of
U.S. origin, should you need to file a lawsuit concerning
the copyright. Further, registration allows one to recover
greater damages and the possibility of having attorney’s
fees awarded. Frequently, the cost of attorneys' fees is greater
than the damages that would be awarded. This serves as a huge
deterrent from filing lawsuits. Registration helps to alleviate
this concern and can also serve as a huge settlement tool
in that the opposing party may wish to dispose of the suit
out of court in order to avoid the risk of paying attorneys'
fees.
Term
The next topic addressed was the length of copyright protection.
The term of copyright is the life of the author plus seventy
years. The term for work made for hire is ninety-five years
from publication or 120 years from creation, whichever happens
first. This is only effective for works made since the 1976
Copyright Act. Works created prior to this act had a different
term of protection: 28 years, renewable. The renewal term
for such works was extended in 1976 and again in 1998; thus,
addressing the term of protection for works created pre-1976
is a complex matter. [See Lolly Gasaway, "When Works
Pass Into the Public Domain." <http://www.unc.edu/~unclng/public-d.htm>
Rights
Protected
Besek then turned to the rights protected under copyright
law. The most obvious and fundamental right in the bundle
is the reproduction right. Second, is the right to create
a derivative work or adaptation, such as a translation, a
musical arrangement, or a movie from a novel. Third, is the
right to distribute copies of the work to the public. One
exemption to this is the “first sale” doctrine,
which allows an authorized copy of a work that has been sold
to be transferred to someone else. The Performance Right allows
for a public performance and lastly, there is the right of
public display.
Besek
noted that “public” is a broad concept under the
Copyright Act .Something is public if it is performed or displayed
in an area open to the public or anywhere that a substantial
number of persons besides a normal circle of a family and
its social acquaintances is gathered, or if it’s transmitted
to such a place.
Besek
further noted that the Berne Convention, which is the principal
international copyright treaty, requires that authors have
additional, non-economic rights called moral rights. The two
basic moral rights are the right of attribution, (the right
of an artist to have his name accompany his work), and the
right of integrity, (the right to prevent mutilation or distortion
of the work that would prejudice the author’s honor or
reputation). In the U.S. these rights are made explicit in
the statute only for works of visual arts and only apply if
the works exist in a single copy, or, if a print or lithograph,
if there are no more than two hundred copies, each numbered
and signed by the artist.
Exemptions
Besek next addressed non-infringing uses of a copyrighted
work. There are numerous exceptions in the U.S. Copyright
Act that do not require permission or payment. Besek noted
that fair use is the broadest and most ambiguous section of
U.S. copyright law. Uses favored by the law include criticism,
news reporting, research, parody and satire. However, even
if a use falls into these categories, that does not mean it
is automatically fair. The use has to be analyzed under four
factors in the copyright act:
-
Purpose
and character of the use. Is the use transformative?
Did you add something in some way? If so, the court will
more likely find fair use because the law wants to encourage
people to build creative works.
-
Nature
of the work. Use of fact-based works is more likely
to be considered fair than use of creative, fanciful works.
-
Amount
and substantiality of the use. This refers to how
much of the work was taken and how important to the whole
was the portion used.
-
Effect
of the use on the potential market for, or value of, the
copyrighted work. If the copying will displace the
original in the market, then the court is less likely
to find fair use.
Besek
noted that the factors of the fair use doctrine are elastic:
there is no exact formula. This elasticity allows the court
to respond to new situations as they occur.
She illustrated
the fair use doctrine through two cases in New York. The first
case, Rogers v. Koons, 960 F.2d 301, (2d Cir. 1992), cert.
denied, 506 U.S. 934 (1992), involved a photographer, Art
Rogers, who licensed his photographs for sale on note cards.
One of the note cards, showing a Mr. and Mrs. Scanlon holding
eight German Shepherd puppies was purchased by the sculptor
Jeff Koons while working on a "Banality Show” for
the Sonnabend Gallery in New York City. Koons tore off the
copyright notice from the note card that he sent to his woodcarving
studio in Italy, instructing the carvers to create a three-dimensional
copy of the photograph as close to the original as possible.
He then painted the sculpture and exhibited it in his show.
Koons sold three copies of the sculpture, String of Puppies
[see
image], for over $100,000 each. Rogers subsequently sued
for copyright infringement. Koons claimed the sculpture was
a social criticism, a commentary on the deterioration of society.
The court was not convinced. In ruling against Koons, the
court emphasized the commercial nature of his copying: the
sculptures made money. The court further noted Koons’
bad faith in removing the copyright notice from the note card
before sending it to his woodcarvers. Importantly, the court
noted that while the law is generally lenient toward parody,
a satire on society does not require specifically parodying
Rogers’ photograph per se.
The second
example was
Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d
Cir. 1998) in which Annie Leibovitz sued Paramount Pictures
for copyright infringement in its re-creation, in an ad campaign
for the movie, Naked Gun 33 1/3, of her famous photograph
of a nude and pregnant Demi Moore for Vanity Fair.
[See the images at <http://www.benedict.com/visual/nakedgun/nakedgun.asp>.
In the
ad, Paramount placed Leslie Nielson’s head on a pregnant
woman’s body. The court determined this was use was fair
because the copied picture was an obvious parody on the solemn
Demi Moore image. The court also noted that Annie Leibovitz
had admitted that the parody would not affect the potential
market for her photograph.
Besek
explained another reason for the different result: in the
interim between the Rogers and Leibovitz cases, the Supreme
Court had decided a very important case involving a parody
of Roy Orbison’s song, "Pretty Woman," by the
rap group 2 Live Crew. The Supreme Court noted that while
the commercial aspect of a parody is important, the transformative
aspect is just as important. This case changed the relative
emphasis given to the four fair use factors. Besek noted,
however, that whether something is fair use can be difficult
to predict in practice, especially in cases involving new
technology or a new use of a copyrighted work.
The
Digital Challenge
Turning to how copyright law has responded to the challenge
of digital technology, Besek listed the pros and cons of digital
technology for authors and artists: The Internet makes it
easier to share work with colleagues and friends; it makes
different kinds of collaboration easier, and modifications,
especially on photographs, easier to create. However, digital
technology also makes copying much easier, especially with
the help of file-sharing programs that permit users to send
millions of copies at an instant.
For many
creators, whose work is only meaningful in its original form,
the Internet probably does not pose too much of a threat.
Academics, for whom renown is more important than royalties,
may welcome the distribution of their work over the Internet.
However, some academics may be concerned about attribution.
If their work is disseminated on the Internet, the concern
is that they will not get credit for their work, or that the
copying party will attempt to “pass off” the work
as their own. Others are concerned that their work will be
changed in a significant way, so integrity is an important
issue.
Besek
explained that the law has responded to digital technology
in two ways: through Congressional statutes and case law.
New issues arise every day, to which the courts must apply
statutes often created in a time when the particular issue
was non-existent.
In 1998,
Congress passed The Digital Millennium Copyright Act (DMCA)
[see Copyright
Office Summary of the Act]. This was designed, among other
things, to make copyright owners feel more secure in posting
their works online. Besek noted two provisions relevant to
the Town Meeting:
Technological
Protection
Besek explained that Congress felt copyright owners would
want to rely on various forms of technological protection
(e.g., password protection, copy protection, encryption, and
digital watermarking). The DMCA gives legal protection to
these technological protection measures, prohibiting their
circumvention. It deals separately with ‘access controls’
(passwords and encryption that limit access to authorized
users) and rights controls that limit a user’s ability
to copy a work or play it in a particular environment (e.g.,
streaming media that does not allow downloading).
The DMCA
does three things:
-
it
prohibits the actual act of circumventing a technological
access control
-
it
prohibits manufacturing or distributing devices or offering
services to circumvent access control, and
-
it
prohibits manufacturing or distributing devices or offering
services to circumvent rights controls.
The one
thing the DMCA does not do is prohibit the actual act of circumventing
rights controls. Besek explained that the legislators did
this because they thought that if one made a copy after circumventing
a rights control and it was a fair use copy, he should not
be liable for circumventing a rights control. On the other
hand, if he did circumvent a rights control and the copy was
not fair use, then the copyright holder would have a claim
under the Copyright Act
Copyright
Management Information
Copyright Management Information (or Digital Rights Management)
comprises metadata attached to a work containing the copyright
owner’s name, the title of the work and the terms by
which one can use it. Section 1202 of the DMCA states that
it is illegal to knowingly distribute false copyright management
information with the intent to enable or conceal infringement
or distribute works knowing that the accompanying information
has been removed or altered.
These
provisions provide tools to individual owners as well as big
businesses. If individual authors can have reasonable protection
under copyright law they will more freely self-publish. Besek
noted that this may liberate artists and authors from traditional
distribution mechanisms, and the often one-sided agreements
they get from large publishers. Besek further stated that
her particular research has shown that even those who are
less concerned about royalties do see digital rights management
as a useful tool to protect the integrity of their work.
Case
Law
Besek discussed two cases to illustrate how courts have been
dealing with digital technology and copyright. The first is
Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2001) http://pub.bna.com/ptcj/99-560.htm.
Arriba Soft owns an image database with a webcrawler that
discovers and copies images into its database. A query to
the search engine will produce several thumbnail images. When
the thumbnails were clicked on, a large version of the photograph
would appear through an in-line link. Because of the in-line
link, the image could not be classified as a copy; rather
the use invoked the right of public display.
Photographer
Leslie Kelly had images posted on a website that were picked
up by Arriba Soft’s webcrawler. Arriba Soft failed to
remove the photographs from their database when Kelly requested
that they do so and then sued Arriba Soft for copyright infringement.
The court
looked at the thumbnail images differently than the larger
images. The court was convinced that the thumbnail images
were fair use because of their transformative nature. Even
though the copies were exact, the smaller images provided
less clarity, prompting the court to conclude that they would
not impinge on the market for the larger photographs. Moreover,
the thumbnail pictures served a totally different function.
The court felt the thumbnails were a useful and valuable tool,
meant to provide and locate the photographs on the web, unlike
the purpose of the original photographs which were meant for
aesthetic enjoyment. However, Besek noted that the court had
a very different view of Arriba Soft’s use of an in-line
link to the full-size images. These did impinge the market
for the original photographs because it made it unnecessary
to ever go back to the original. One could essentially get
the photograph without going to the original website.
However,
Besek noted that the court had a very different view as Arriba
Soft’s use of an on-line link to the full-size images.
These did impinge on the market for the original photographs
because it made it unnecessary to ever go back to the original.
One could essentially get the photograph without going to
the original website.
The second
case was A&M Records, Inc. v. Napster, Inc., 239 F.3d
1004 (9th Cir. 2001) <http://www.law.cornell.edu/copyright/cases/239_F3d_1004.htm>
that Besek wanted to discuss because of the vast quantity
of misinformation circulating in regard to it. She noted that
MP3 technology has made it possible to transfer music files
over the Internet very quickly. Napster sought to take advantage
of the MP3 software standard and peer-to-peer networking technology
to create a database that would enable users to locate and
exchange music files with other users currently logged on
to Napster. This became an extremely popular source of free
music and record companies subsequently filed suit against
Napster. Besek explained that though Napster itself did no
copying, one can be liable for copyright infringement through
secondary liability. There are two forms of secondary liability
under copyright law (1) contributory infringement, where one
is liable if he has knowledge of the infringing activity and
assisted in some way, and (2) vicarious infringement, where
one has the right and ability to supervise the activity and
derives a financial benefit from the activity.
The record
companies owned the copyrights in most of the material that
was being copied through Napster. They claimed that Napster
was aware of the infringement and that the copies were being
made without the permission of the copyright holders. Ultimately,
the court agreed. The court held that Napster was both contributorily
and vicariously liable and issued an injunction.
Besek
noted that while many people feel this is a decision about
peer-to-peer file sharing technology, this case is really
about a mass, centralized database of information about the
location of copyrighted works available for (often unauthorized)
copying, used in conjunction with peer to peer technology.
Besek further noted that there are many justifiable and legal
uses of peer to peer technology that do not infringe copyrights.
Final
Thoughts
Besek concluded with some thoughts on what is ahead on the
legal front concerning digital technology. She noted that
enforcement of the DMCA is beginning to target individuals.
Corporations whose files are the subject of file sharing are
now beginning to go after individual copyright infringers
rather than intermediary companies like Napster. However,
Besek noted that there is currently legislation pending in
Congress that will attempt to weaken aspects of the protection
offered by The Digital Millennium Copyright Act. (See, for
example, the Digital Media Consumers Rights Act <http://www.house.gov/boucher/docs/BOUCHE_025.pdf>
In closing,
Besek noted that the most interesting developments regarding
digital copyright are on the business side of the issue. Because
many feel that the use of peer-to-peer file sharing would
diminish if customers had a better service, the music industry
is trying to respond. However, see the impact of the May 2003
release by Apple Computer of a system allowing 99¢ downloads,
some limited copying for personal use and no subscription
requirement: <http://www.apple.com/music/store/>.
(See also a May 28, 2003 report that Apple withdrew file-sharing
ability because of abuse by some: Ian Fried, CNET News.com:
"Apple unplugs iTunes Internet file-sharing," <http://news.zdnet.co.uk/story/0,,t269-s2135295,00.html>).
Besek
noted that an important role remained for legal enforcement
because “it is hard to compete with free.” In the
end Besek concluded that the solution to the copyright problem
in the digital era is multifaceted and will be a combination
of enforcement of the law and the development of new business
models.
Back
to top
ART
& WORK: COPYRIGHT, CONTRACTS AND WORK-FOR-HIRE
Alberta
Arthurs, Introduction
Alberta
Arthurs began the panel discussion with some informative thoughts
on the challenges creators face in the new digital millennium.
She noted that the meaning of ‘copy’ has changed
significantly with the advent of new technology, making it
possible to procure endless perfect copies of any product
that appears in digital form. Further, the Internet allows
for these copies to circulate globally and freely, and creates
challenges to those seeking protection of their creative works.
She expressed her great interest in hearing the response of
artists and legal minds alike to these challenges. She also
directed participants to the important project conducted in
2002 by the American Assembly on Art, Technology and Intellectual
Property on many of these issues. A report on this year-long
project is available at
http://www.americanassembly.org/ac/atip_na_fr.htm
Maureen
A. O’Rourke, Creators’ Rights and the
Aftermath of the Tasini Case
Maureen
O’Rourke gave a powerful talk on the plight of freelance
writers in the digital age, and on the intersection of contract
and copyright law in the protection of creators’ rights.
She noted that the problems faced by freelance writers extend
to all creators in their struggle to protect their work from
uncompensated dissemination on the Internet.
She began
by outlining the specific issue faced by freelance authors
today. Although the Internet offers them the opportunity to
produce and broadly disseminate their work, the question is:
who gets what compensation when the work is published on the
Internet? The author? The publisher? The technologist who
created the database on which the work is published?
Prior
to electronic publishing technology, an author might typically
be paid by a publisher for one-time publication of a work
within the United States. With the advent of the Internet,
publishers may now make entire publications available on websites.
A common example is newspaper publication. The problem arises
when these publications are made without the permission of
the individual freelance authors who contributed to the overall
publication.
O'Rourke
noted that copyright law offers little to protect freelancers
in bargaining with publishers over electronic rights. Although
the Tasini case [N.Y. Times v. Tasini, 533 U.S. 483 (2001);
see <http://www.nwu.org/tvt/tvthome.htm>],
seemed to offer a glimmer of hope to freelance authors, it
has produced some unwelcome results. In this case, the Supreme
Court confirmed that when a freelance author contributes an
article to a collective work such as a newspaper or magazine,
the author has a distinct and protectable copyright. Further,
the court noted that although section 201 of the Copyright
Act allows owners of collective works (publishers) the right
to reproduce and distribute contributed work in a "revision,"
the term "revision" does not encompass distributing
the work in electronic format." O'Rourke noted that while
one may think this ruling might encourage publishers to increase
payment to freelance writers in exchange for electronic rights,
in practice the outcome has been much different.
Ironically,
the case has led to a change in contracting practices between
authors and publishers. Publishers now routinely seek all
publication rights to a creative work for the same price they
offered for the more limited one-time publication rights.
Because of unequal bargaining power, authors have little recourse
when confronted by unbalanced contracts, and publishers are
typically easily able to convince authors to give up all rights
in order to be published.
O’Rourke
further noted that the U.S. court system has been unresponsive
to claims brought by authors under contract law. She explained
that contract law is simply not well suited to adjust for
disparities in bargaining power. Moreover, while courts may
be willing to police contracts on some level, the courts are
less willing to protect freelance authors who know what the
terms are when they sign, but sue later.
She offered
valuable insights into possible solutions to these complex
problems. While changing copyright law will be a long and
arduous process, she noted that collective activity by artists
and authors could do much in the way of equalizing bargaining
power. She suggested that a form of unionizing could strengthen
the creators’ position in negotiating contracts and noted
that while such groups have succeeded in the music industry,
attempts by artists and authors have been, so far, largely
unsuccessful. She suggested that this could be due to the
scale of the operation: artists and authors have been unable
to attract the large numbers necessary to demonstrate strong
bargaining power in contract negotiations.
One solution
might be self-publication through author/artist groups that
can use digital technology to their own advantage, perhaps
attracting advertising money and becoming a competitive force
to be reckoned with.
However,
O’Rourke concluded by suggesting that perhaps the most
important key is educating creators about their rights and
the kind of contractual terms they should avoid. She stated
poignantly that an artist cannot just be an artist anymore,
but must be a lawyer, too.
Back
to top
Richard
Kelly, An Artist’s Perspective
Richard
Kelly, a Pittsburgh based photographer, picked up the conversation
nicely with an explanation of how copyright law affects him
as an artist on a day to day basis. He noted how relevant
this discussion was to his own situation because, as O’Rourke
had demonstrated, he is no longer just a photographer, but
a bit of a lawyer as well. As a professional photographer,
he typically spends two days a week shooting photographs and
five days a week negotiating contracts.
Kelly
expressed his dismay that the legal hurdles facing artists
are not discussed in art schools, and noted the need for artists
to become educated about their rights. He explained how he
did not learn the ramifications of licensing until working
for a professional photographer and seeing the importance,
and value, of licensing agreements in action. He declared
that his legal education is an ongoing process and that the
changes in digital technology have altered the playing field
significantly since he began working as a professional photographer
in the 1980’s.
Kelly
explained that, as O’Rourke noted above, prior to the
advent of the Internet, most of his contract negotiations
involved one-time only publication rights within the United
States. He stated that most of his contracts were negotiated
freely and easily, many times by telephone, without the need
of signing. However, with the dawn of the digital age, contract
agreements became more complicated, involving exclusivity
and Internet publication. Though more money was not offered,
publishers were now seeking all publication rights, including
the right to multiple web publications. Rather than improving
artists’ bargaining power, Kelly noted that the Tasini
case had the unfortunate effect of causing publishers to demand
all rights up front, leaving little room for negotiation.
He registered
the frustration artists face because of their frequent inability
to speak to anyone at a particular publication office who
has the ability or the power to negotiate. Because artists
frequently deal with middlemen, they are effectively barred
from contracting around unfair terms. Kelly noted that negotiation
is critical. In his personal experience, he has been able
to get larger fees in exchange for digital publication rights
in situations where he was able to confront those with the
bargaining power and make specific contractual demands.
Publishers, he granted, often receive and use thousands of
photographs a day and most don’t have the resources to
negotiate individual contracts. Standardized contracts are
the only way to manage the volume. However, this concern could
be alleviated if the standardized contracts included just
compensation for digital publication rights.
Kelly
concluded by explaining that he, like many artists, is excited
and amazed by the marketing and promotional opportunities
for photographers that the Internet presents. However, he
noted the difficult choice an artist must make when putting
his works in this uncontrollable domain. “It is getting
harder and harder to remain in the business when you cannot
reap the benefits of your own work.”
Deborah A.
Coleman, The Museum’s Concerns
Deborah A. Coleman followed with an expression of an institution’s
concerns. Specifically she offered an informed discussion
of a museum’s perspectives on these issues from the viewpoints
of: (1) The Museum as Curator, (2) The Museum as Collector,
and (3) The Museum as Author.
The
Museum as Curator
Coleman eloquently noted that until the digital age the museum
operated as an effective container for cultural heritage.
Digital technology now offers the opportunity to dramatically
enhance the museum’s educational mission by dispersing
more broadly the actual experience of cultural content through
the museum’s website. A curator and certainly the educational
staff now have the opportunity to be entrepreneurial as the
museum faces very real economic concerns and needs to balance
educational mission against economic interests.
She
declared that the museum faces copyright questions each time
it places an image of a piece of artwork on a coffee cup or
poster sold at the gift shop. She emphasized that the fact
that the museum owned a work did not necessarily mean it owned
the copyright or had the right to reproduce it. Though there
are a few implied permissible uses, such as the need to make
a copy of the work for the museum’s archives, copies
made for promotional and marketing purposes are often problematic
because they produce financial benefits.
Because of so many copyright uncertainties, museum staff will
rely on contracts. Unless art is acquired for the contemporary
galleries, museums rarely deal directly with artists. Often,
work is gifted and the donor does not own the rights to reproduce
the work. In cases like these, standardized contracts can
alleviate the burden of complex legal issues.
The
Museum as Owner
As owners of artwork, museums are frequently concerned with
the quality of images displayed on their websites. Coleman
noted that the digital world has no bounds, and the museum
must carefully address the terms on which they enter this
new space to protect themselves from unauthorized copying.
She reported that some museums allow only low-resolution images
or long-view gallery shots that seldom show an entire piece
of artwork and noted that many museums place copyright protection
notices on the websites or create pages that do not allow
downloading or printing.
The
Museum as Author
As author, the museum will have many rights accruing from
its publication of catalogues, commentaries, and scholarly
writings as well as from material it develops for the web.
A museum will usually own the rights of works created by its
employees in the course of their employment. However, when
employing independent contractors, museums often have to negotiate
specific ownership rights.
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Comments
and Discussion
The comments and questions session raised some interesting
points concerning artists’ views on the value of the
Internet on one hand, and the dangers of uncontrolled dissemination
on the other. One particularly interesting question involved
O’Rourke’s comments on the need for mobilization
and collective activity on the part of authors and artists
to protect their rights in the freelance market. An audience
member asked O’Rourke to expand her comments: How exactly
will writers’ unions or collective rights organizations
assist individual artists and writers? O’Rourke explained
that creators could come together and license their publications
to large collective rights organizations such as the Publication
Rights Clearinghouse of the National Writers Union <http://www.nwu.org/prc/prchome.htm>,
which in turn, could license the works to interested publishers
for a standardized fee.
However,
O’Rourke noted the difficulties encountered when creators
have already signed away all of their publication rights in
the original publication. She further noted that success depends,
in part, on attracting a critical number of creators. So far,
the broad range of opinions among artists on the pros and
cons of the Internet have prevented a large collaborative
effort to materialize.
Alberta
Arthurs expanded the argument by noting that, while publishers
are vigorously pursuing their interest in the issue and lobbying
for protective legislation, artists have such a broad range
of opinions on the matter that it is hard to get everyone
together on the issue.
Richard
Kelly added that he, himself, is a prime example of the vast
spectrum of opinions concerning the worth and danger of the
Internet. He stated that he was torn between using the web
as a promotional tool and the fear of that tool permitting
people to steal his work.
Arthurs
concluded the discussion with a poignant statement: underneath
all of the controversy, the sad irony is that the very goals
of copyright law, to get creative works out for the benefit
of the general public, and to provide incentives to creative
minds through protection and compensation, are being displaced.
ACCESS AND USE: COPYRIGHT AND THE PUBLIC
DOMAIN
Mark Avsec,
Misappropriation: Criteria for Establishing Copyright Infringement
Mark Avsec,
a lawyer and a Grammy Award winning musician, brought a self-proclaimed
cynical voice to the panel in his discussion of the criteria
used for establishing copyright infringement in the musical
realm. His disclaimer was that as a musician he had been on
the receiving end of an infringement lawsuit and felt "raped’
by the legal system. Though he had won the case, the experience
prompted him to become an intellectual property attorney himself,
and in this capacity he frequently defends against infringement
claims. Here he described the elements necessary to prove
infringement as proclaimed by the landmark case, Arnstein
v. Porter, 154 F.2d 464 (2d Cir. 1946).
He explained
that, though Ira Arnstein was a musician, he was also a career
litigant with a penchant for the absurd. He brought a copyright
infringement suit against Cole Porter claiming that Porter
had sent ‘thugs’ to his apartment to steal his works
of musical genius and then copied his music in subsequent
recordings. Avsec explained the three-part test for proving
copyright infringement as laid out in this case:
Access:
the Plaintiff must show that there was a reasonable possibility
of access to the copied work.
Substantial
Similarity: the Plaintiff must prove that there is substantial
similarity between his own work and the allegedly copied work.
Here, experts are frequently brought in to prove the similarity
of specific notes, chords, and rhythms.
The Intrinsic,
or “Lay Listener” Test: again, substantial similarity
must be proven, this time from the perspective of the lay
listener (the jury). Do the songs sound enough alike to prove
infringement?
Avsec
noted that very rarely is one able to get first-hand evidence
of infringement, such as an eyewitness who could testify that
he saw the actual act of copying or stealing. Thus, the elements
are frequently satisfied with circumstantial evidence. Avsec
warned of the dangers inherent in the use of such circumstantial
evidence. For instance, a budding musician may be able to
prove access simply because he sent a demo-tape to a recording
company. For this reason, Avsec frequently counsels clients
not to accept demo-tapes from anyone not completely held in
trust.
Avsec
emphasized that access is often the key to infringement suits,
because once access is proven, particularly in frivolous or
baseless suits, experts may be able to confuse a jury sufficiently
to convince them that, though the music does not sound similar,
the notes, rhythms, or chords used were similar enough to
prove copying.
In conclusion
Avsec asked a thought provoking question. Do we really need
copyright law? If the ultimate goal of copyright law is to
provide incentives to authors and artists to continue to create
works for the enjoyment of the public, do we really need a
copyright to accomplish this? Was Beethoven motivated by copyright
concerns to write the Moonlight Sonata? Avsec made it clear
that he himself was a "copyright optimist" and firmly
supported copyright's monopoly. Yet, even if we agree that
copyright is needed to protect the work once it is written,
how long should this protection last? How long is too long?
Mark Gunderson,
A Musician’s Experience Working Online
Mark
Gunderson, musician and new media artist, provided a fascinating,
if controversial view on the role of copyright law in the
work of a media artist. Gunderson is founder and member of
The Evolution Control
Committee, an audio art group and band known for its copyright-challenging
stance. Gunderson explained that the ECC sees itself as a
musical pioneer, creating ‘collage’ music made of
spliced sounds, most taken without the permission of the creator,
and recombining the spliced material to create new music.
For example, the ECC has taken a cappella recordings
of well-known artists and placed them atop instrumental recordings
(of, for example Herb Alpert), creating an all together new
musical experience. The ECC has released numerous full length
albums and singles, most notably the “Whipped Cream Mixes,”
said to have spawned the “bastard pop” or “bootlegger
tracks” musical genre that became extremely popular in
the UK.
Gunderson
played various examples of his music for the audience, including
the controversial “Rocked
by Rape” single that was the subject of a threatened
lawsuit by CBS and Dan Rather against the ECC. The single
contained spliced audio of violent words used by Rather on
the CBS Evening News put to the music of the rock and roll
band, AC/DC. Upon releasing the single and having a review
published in Spin Magazine (see reviews in Resources),
CBS became aware of the recording and sent a cease and desist
notice to the ECC claiming copyright infringement. Knowing
the ECC could not afford the legal costs of defending suit
against CBS, they decided to launch a media war instead. In
numerous subsequent news articles Gunderson claimed that the
song was simply a parody and that the ECC had not broken any
laws. CBS’s reaction was to do nothing. As of yet, there
has been no suit. Gunderson notes, however, that he is now
in ‘legal limbo.’ Having just re-released the single
on his new record, Plagiarhythm Nation, he awaits further
word from CBS.
“Rocked
by Rape” was Gunderson’s first foray into the ease
and convenience of digital editing. He notes that the Internet
has played a crucial role in many of his projects. Notably,
Gunderson is currently using MP3 files downloaded in the days
of Napster to create a new medium he calls “Voyart.”
Gunderson explained that some Napster patrons allowed access
to all of their MP3 files to other users, sometimes unwittingly
including files containing “karaoke practice” or
private recordings of heartfelt letters to loved ones. Prior
to Napster’s demise, Gunderson was able to amass an archive
of such recordings and is now splicing the recordings together,
creating what he calls “forced duets.”
Though
Gunderson poked fun at the legal fragility of his creations,
his explanation of the ideology behind his work spoke to the
very purpose of copyright law. He explained that his work
takes off from where the previous artist left off. By splicing
and reordering the music, he was, in fact, creating something
entirely new. Is this not the incentive that copyright law
seeks to encourage? Moreover, Gunderson noted that each of
his released recordings is accompanied by a full list of credited
sources naming the original creator. The ECC, he explained,
is in no way attempting to take credit for the work in the
original source material.
Commenting
on the legal implications of the ECC’s work, Mark Avsec
said that copyright infringement was clearly an issue. However,
the songs were arguably derivative works, allowable under
copyright law. Avsec thought Gunderson may find himself facing
rights of privacy and publicity claims, as well as infringement
claims for the MP3 files, which, though not published, are
certainly protected under copyright law because they are fixed
in a tangible medium. In conclusion, Avsec said that if the
re-released “Rocked by Rape” was a success, Gunderson
should probably expect to be hearing from CBS in the near
future.
Walt
Seng, A Photographer’s Experience in the World of
Copyright Law
Walt Seng,
a successful Cleveland-based photographer, gave a revealing
talk about unauthorized use of photographs in licensing agreements.
Seng related a personal story of a lawsuit he brought against
a client for using his photographs in unauthorized form. Seng
was hired by a salon to take photographs for a hair color
book to be used within the salon. He explained that he had
a long-standing and good working relationship with the salon
and thus no contract was signed for the work. But, in addition
to the color book, the salon used the photographs to create
posters and calendars without Seng’s permission.
Seng was
forced to bring suit and later won in a settlement agreement.
He explained that he was saved by an invoice he had sent to
the salon on which he had written the intended use of the
photographs. While the salon had paid $5,000 for the photographs
to be used in the book, he calculated that it had derived
some $750,000 from reusing the photos to sell posters and
calendars.
Seng stressed
the need for more education of artists and publishers alike
in copyright law, to curtail millions of needless lawsuits.
He explained that the salon was very confused: if they hire
an out-of-state photographer, the photographer owns the rights;
if they hire a local photographer, the salon owns the rights.
Seng suggested that if the salon had just asked about their
rights to the work prior to publishing the calendars and posters,
neither party would have had to invest the time and expense
of a lawsuit.
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OPEN
FORUM
International Law
Among the interesting issues raised in the open forum discussion
was the question of how international law is responding to
the newly digitized world that Internet technology had brought
with it. June Besek noted that prior to the Internet, intellectual
property rights were handled geographically. Wherever a breach
took place would generally be the location for recourse.
The Internet
complicates this, as geography becomes relatively meaningless.
How can one determine exactly where an infringement takes
place? Which country or countries can claim jurisdiction over
the parties in suits involving various foreign entities? Which
country's law will apply? Besek explained that the place of
suit and which country's law will be applied are very important
when laws differ significantly from country to country. There
are currently efforts under way to standardize intellectual
property rights country by country through various international
treaties. However, she noted that laws change rather slowly,
so rules will differ in various countries for quite some time
to come.
Copyright
Notice
Another interesting question raised in the discussion was
whether it might be necessary to reinstitute the formal notice
requirement under copyright law with the advent of Internet
technology. Prior to 1989, every copyrighted work in the United
States was required to have a copyright symbol to put the
public on notice that the work was protected. When the lack
of formal notice intersects with the effortless ability to
copy works off of the Internet, are we not just asking people
to gamble with their rights?
Mark Avsec
noted that, though formal notice is no longer required, every
copyright owner is still free to affix a legend to their work,
warning the public that the work is protected under copyright
law. Thus, the artist still has ample opportunity to take
advantage of the practical benefits of notice.
Creative
Commons
David Green pointed out the value of the innovative “Creative
Commons,” an organization providing authors and artists
with a variety of licenses to choose from, each stating the
appropriate uses that may be made of their works. For example,
if one decides to let the work into the public domain, thereby
allowing free reproduction rights to the general public, they
may select or design a license to that effect. Besek expressed
a concern, however, that artists and authors may not fully
realize the implications of what they are giving away when
they choose an appropriate license. This is especially a concern
for budding artists who may not realize the economic worth
of their creations until much later in their careers. Clearly,
the importance of educating creators about the rights they
possess under copyright law cannot be overstated.
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