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This book presents a guide to the resource acquisition, legal, and financial necessities of producing an independent film. Every aspect of the planning and execution of the business side of filmmaking is discussed, including hypothetical situations based on the personal experience of the entertainment lawyers who co-authorized the book. The book introduces the roles of producer and lawyer, then outlines the film development process through deal making, financing, hiring, licensing and distribution.
As is pertains to my project, this book provides valuable insight into the warranted concern that filmmakers have had with the 21st century dispute over Internet distribution rights. In the case of Viacom v. Youtube, the exclusive rights per the 1976 Copyright Act for copyright owners to reproduce their works became the basis for allegations against YouTube for a count of direct copyright infringement. The authors of this book advise filmmakers to negotiate with distributors on the basis that they "cannon distribute on the Net until there is adequate 'border protection' to prevent access outside licensed territories" (132).
Erickson, Gunnar, Harris Tulchin, Mark Halloran, and J. Gunnar Erickson. The Independent Film Producer's Survival Guide: A Business and Legal Sourcebook . New York: Schirmer Trade Books, 2005
The rights to intellectual property and the revenue thereof can make or break an entrepreneurial business. This book covers the gambit of trade secrets that tech-savvy entrepreneurs may need to protect intellectual property in the dynamic arena of copyright law, licensing, patenting, and trademark acquisition. The book makes examples of the infringement issues faced by international business icons such as Microsoft and Amazon.com.
As it pertains to my project, the book also goes over the provisions for statutory versus actual damages in the 1976 Copyright Act (115). These provisions are under review in the Viacom v. YouTube case.
Guide, Gilbert. The Entrepreneur's Guide to Patents, Copyrights, Trademarks, Trade Secrets & Licensing . New York: The Berkley Publishing Group, 2004
Call#: Van Pelt Library K561 .L436 2003
I came across this book on the shelves as I was looking for the book on "Governing the Internet". The title intrigued me because the other course I am taking is on Globalization. I was hoping to gain a better understanding of the infrastructures and organizations that are being created to address the issue of an increasing interconnected world. Certainly the internet plays a large part in this Globalization process.
Bound By Law, authored by Duke IP Law professor James Boyle, Jennifer Jenkins and illustrated by cartoonist turned IP law professor Keith Aoki, is a comic that chronicles, into plain English, the struggle of one documentary filmmaker’s perils into current copyright law. The story begins with a creepy goblin, who seems to be an unfortunate librarian at the Center for the Study of the Public Domain, introducing the audience to two well mannered individuals (could James and Jennifer) who will guide the filmmaker, Akiko, through the confusing world of copyright and filmmaking. Akiko desires to make a documentary capturing all the sights, sounds, social issues and culture of one day in the life of New York. She asks her guides if she will need to clear rights for everything she captures, and that’s where the journey begins. Here she learns of that only works published before 1923 are clearly in the public domain, leaving eighty years of content that may need to be cleared for her film, if she happens to capture it on film. Akiko hesitantly learns of the changes in copyright law, the extensions and increasing amount permission clearances needed for her work, and also a helpful lesson in fair use in how “rights” culture can be changed by “making collective decisions about what’s fair”, and how the intention of fair use mediates between giving incentive to authors to use content to critique on culture. After having explored the world of fair use our hero embarks on the journey through term limits which unfortunately has been subject to some of the most draconian changes, including the most recent copyright extension (CTEA) which protects the works of an author for life plus seventy years after the author’s death and also extended all work currently under copyright for an additional twenty years. The comic beautifully and simple illustrates how this runs counter to the constitutions intentions and how current copyright law is doing harm to the public domain. The guides then bring Akiko to a ledge where the cold, dark, fenced factories and plants of corporate and restrictive control are contrasted with James Boyle’s ecological idea of sustainable development in the balance of copyright and creative works which is illustrated with a lush open landscape of creativity.
Relevance
The comic beautifully illustrated the ins and outs of copyright law and made the plethora of literature, prior to discovering this text, a bit more simple to understand. It balances the restrictions, and purpose of copyright law with the freedom a creator inherently is given. There is a considerable amount of content covering fair use, but the section on the copyright term extension is most applicable to my research. The comic wonderfully shows the frustration regarding the increasing amount of extensions and there affects and on the public domain. The work itself is a testament to the balance of creativity and law, and it’s endeavor to make these issues and rights known in plain English is a wonderful experiment, that I’m better informed after reviewing.
University of San Francisco Law Review 30.4 (1996) 1199-1208. (available at http://tarlton.law.utexas.edu/lpop/etext/usf/papke30.htm)
“Peace Between the Sexes: Law and Gender in Kramer vs. Kramer,” Papke focuses on the legal intricacies of divorce in America from colonization to the time of Kramer vs. Kramer. He identifies the criteria used to determine child custody by American courts and how this criteria has changed dramatically several times over the past few hundred years. Contemporary to the release of Kramer vs. Kramer, child custody laws were being radically overhauled. In 1979, New York changed it criteria for child custody, moving away from maternal preference to accounting for which situation would be in the “best interest” of the child. Papke identifies the dramatic inaccuracy of Kramer vs. Kramer’s depiction of standard legal proceedings in a child custody case. He demonstrates, however, how these inaccuracies are purposeful and meant to underline the important of gender and gender roles in the movie. An example of this lies in the depiction of a lackadaisical judge who allows Joanna’s attorney to slander him in court without factual basis. Although inaccurate, such actions are derived from common divorce attorney stereotypes and do serve the purpose of eliciting sympathy for Ted Kramer. These mistakes also demonstrate the public resentment towards many figures involved with child custody judicial processes. Papke also discusses the appearance of the “male gaze” in the movie as it relates to the movie’s plot and feminist theory.
This article is very relevant due to the number of unique views on Kramer vs. Kramer. The article gives a history of the judicial processes handling divorce and child custody, but in addition discusses general public opinion regarding these events and how these attitudes surface in Kramer vs. Kramer. In addition, the article incorporates a prominent idea in feminist cinematic theory, that of the “male gaze,” and it discusses how this element presents bias as truth.
This is a test of some of the functions of PennTags.
In October 2000 the Biddle Law Library and the American College of Bankruptcy collaborated to create a special collection entitled the National Bankruptcy Archives (NBA), a national repository of materials relating to the history of debtor-creditor relations, bankruptcy and the reorganization of debt. The NBA collects records from the American College of Bankruptcy as well as from other organizations whose activities have been relevant to the history of bankruptcy and insolvency legislation, regulation, and administrative and judicial determination. The NBA also houses papers of individuals who have influenced the field, and other collections documenting the history of bankruptcy law.
Some of the records of the National Bankruptcy Archives are currently on display in the reference area of Biddle Law Library.
Arizona Law Takes a Toll on Nonresident Students
By JESSE McKINLEY
PHOENIX - When Marco Carrillo, a naturalized American and a high school valedictorian, went to meet with his college counselor, her major worry about his future had little to do with his SAT scores or essay or extracurricular activities.
It had to do with his citizenship.
"The very first question she asked me was whether I was a legal resident here," said Mr. Carrillo, 20, now an electrical engineering student at Arizona State University in Tempe. "And I said, ‘Yeah, I am.' And she said, ‘Oh good, that makes things easier.' "
Such questions have become commonplace in Arizona, where voters passed a 2006 referendum, Proposition 300, that forbids college students who cannot prove they are legal residents from receiving state financial assistance.
One of several recent immigration statutes passed by Arizona voters and legislators frustrated by federal inaction, the law also prohibits in-state tuition for illegal immigrants. Administrators at several campuses fear that the provision has priced some out of their classes, particularly at the state's popular community colleges.
Civil Action No. 88-1275
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
1990 U.S. Dist. LEXIS 10895
August 9, 1990, Decided
August 14, 1990, Filed
COUNSEL: [*1]
Deborah Harris, Esq., Irv Acklesberg, Esq., COMMUNITY LEGAL SERVICES, INC., Philadelphia, Pennsylvania.
ALL DEFTS EXCEPT ROBERT J. THOMPSON, David P. Bruton, Esq., Michael Kubacki, Esq., DRINKER BIDDLE & REATH, Philadelphia, Pennsylvania.
JUDGES: Daniel H. Huyett, 3rd, United States District Judge.
OPINION BY: HUYETT
OPINION: MEMORANDUM AND ORDER
In this civil action, plaintiffs n1 allege that the means utilized by defendants n2 to allocate federal subsidies received pursuant to the Urban Mass Transportation Act, 49 U.S.C. §§ 1601-13, has a discriminatory impact upon the black community of Philadelphia in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. SEPTA has filed a motion for summary judgment, and oral argument was held on October 3, 1989. At the time of oral argument, it appeared that the parties wished to discuss an amicable resolution of this dispute. Therefore, I stayed disposition of SEPTA's motion for summary judgment pending the outcome of settlement negotiations. After several months, the parties advised that negotiations had proved unfruitful and sought disposition of the instant motion. For the reasons stated below, I will now grant SEPTA's motion for summary judgment. [*2]
No. 90-1656
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
935 F.2d 1280; 1991 U.S. App. LEXIS 12485
February 1, 1991, Argued
May 29, 1991, Filed
NOTICE:
[*1]
RULES OF THE THIRD CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PRIOR HISTORY:
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA; (D.C. Civil No. 88-01275); District Judge: Hon. Daniel H. Huyett, 3rd.
JUDGES: Sloviter, Chief Judge, Nygaard, Circuit Judge, and Barry, District Judge. *
* Honorable Maryanne Trump Barry, United States District Judge for the District of New Jersey, sitting by designation.
OPINION: Affirmed
Elizabeth Deakin - University of California, Berkeley
STELLA -Athens
June 2004
FOR DISCUSSION AT THE CONFERENCE
Abstract - In this paper I present a theoretical and legal framework for consideration of equity and environmental justice (EJ) and identify key issues in EJ as they are raised by low income and minority groups in the United States. I begin with a review of alternate theories of justice as well as the main theoretical arguments made in favor of public participation in government decision-making - both basic elements of the equity and environmental justice debate. I then review the development of EJ as a political movement in the United States, with roots in civil rights law, protests against hazardous waste sites and urban freeways, and advocacy planning. I discuss the current status of EJ as a legal and regulatory mandate and identify its implications for planning approaches, public participation practices, and analysis and evaluation methods. Drawing upon my work in the San Francisco Bay Area, I show that the agendas of low income and minority communities are substantially different from those of the overall population, and these differences raise important questions about the responsiveness of transportation programs and decision processes to EJ communities. I then identify a preliminary list of research needs, including research into procedures, methods, and outcomes. As planning practices in Europe expand opportunities for public participation in transportation decisions and the diversity of European populations increases, many of the issues illustrated by the US experience are likely to be seen in Europe as well. Similar issues also may arise in the countries of the South and East as planning agencies seek to accommodate differences of opinion and preference.
The OYEZ Project is a multimedia archive devoted to the Supreme Court of the United States and its work. It aims to be a complete and authoritative source for all audio recorded in the Court since the installation of a recording system in October 1955. The Project also provides authoritative information on all justices and offers a virtual reality 'tour' of portions of the Supreme Court building, including the chambers of some of the justices.
Abrams, H. "Originality and Creativity in Copyright Law" Law and Contemporary Problems © 1992 Duke University School of Law
Abrams observe the change in the ways courts interpreted and used “originality” as a qualifying standard to test copyrightability of artworks, since Copyright Act of 1976 and the added clause of “original works of authorship.” Centering on the landmark decision of Feist v. Rural, he studies the development of originality standard before Feist, the implications of Feist opinion in defining “originality” once again, then looks at cases emerged after Feist to study the implications and applications of the decision.
In order for the standard to be applied, “originality” needs to be defined first. Abrams uses Justice Holmes’ opinion in Bleinstein v. Donaldson, to define originality as a “contribution of the author” rather than the “purpose” with which the work was created. Following the decision, standard of originality became about the “sweat of the brow,” about artist’s effort put in, with disregard to artistic or aesthetic merit.
Abrams marks Feist as the landmark decision that shifts meaning of originality from being about physical contribution to having “intellectual production, of thought, and conception.” The most important declaration of the decision is when court constitutionally mandates component of creativity as part of the requirement, which now is embedded in the Constitution. However, at the same time, Abrams recognize the challenge is to define what satisfies the minimum creativity required for copyright protection. He responds that minimum creativity is anything more than “placing an obvious grouping of data in a common and obvious format,” and more refined standards to be established by the future court.
Abrahams introduces series of cases after Feist decision, most notably Kregos v. Assoicated Press and BellSouth Advertising v. Donnelly Information Publishing, to illustrate that originality is no longer found in efforts measured by “time, expense, nor even in the vulnerability of competition,” but only in the final work that it is a work of some independent, original intent.
Abrams concludes on a positive note. The decision has, once and for, declared the importance in the expression of idea, more than the “sweat of the brow” in copyright law. He believes that Feist has made sure the abusive copyright claims on recompilations of facts and data, made so easily in light of emerging technology of today, by declaring a “meaningful minimum” in constitutional standard of original input.
While the paper does not directly argue about court’s aesthetic decisions on defining and shaping the meaning of originality, Abrams illustrates through Feist and one specific limit it has set on what is NOT copyrightable has helped provide precedence and clear standard for judges to follow. This goes on to support that, even with just one example that illustrate the line of bare minimum originality, the evaluation has become more consistent. Therefore, a definitive structure for evaluation of copyrightability will provide consistent jurisdiction that both the courts and public can follow.
http://williampatry.blogspot.com/2006/10/not-model-decision.html
William Patry presents the recent opinion from District of Utah, Meshwerks, Inc v. Toyota Motor Sales U.S.A. Inc—a case in which Meshwerks, hired to make computerized and animated 3D models Toyota cars for an ad campaign, sued the company for copyright infringement when the models were used without his consent. Meshwerks describes his models as a work of “the graphic sculptor” using new graphic technology. The process is not just mechanical, but creative as well; it requires the designer to sketch, from scratch, the 2D picture of a 3D object using the computer as a tool, like a brush for a painter. Therefore, he argues that no two models will ever be alike, for ultimately every design is a unique creation. In defense, Toyota argued that digital models are not entitled to copyright protection, because the purpose of the graphic tool is to create an exact replica and inherently lacks originality. The court declared “lack of a creative recasting of the Toyota vehicles” through its digital medium and therefore Mershwerk’s models are not protected under copyright law.
Patry, however, argues that the Court has failed to evaluate the case on the heart of matter, the issue of originality, but instead focused forming its opinion on technical process in which the models were produced. Patry argues that since Bleinstein v. Donaldson, “purpose is irrelevant,” or the intent in which the work is created: the only question in matter is whether original contribution exists or not in its final outcome. Patry argues that the fact that both the court and the defendant recognized that skill, technical know-how, and the creative process that is born from this technology in the creation of models should have been sufficient to grant Meshwerk’s models copyright protection; a creative input, also called original input, is required in creating the model. Patry uses past decisions on copyright protections of photography, particularly of SHL Imaging, Inc. v. Artisan House, Inc. to mirror the inconsistency of this decision with which Supreme Court has stated: “To be sure, the requisite level of creativity is extremely low, even a slight amount will suffice.” The determination of copyright protection with photography has been made completely on original input, judged by its aesthetic quality. Camera is also a medium that creates exact replicas of life in 2D, but the court has focused on “artistic choices” made by the photographer. Patry pinpoints that in this particular decision, the court focuses on the purpose of creating the models and since the digital technology attempts to create a real-life picture of the car, it lacks the “creative recasting,” ignoring the creative input required to create the model in the process.
This entry forthright demonstrates the inconsistency that the loosely written and interpreted copyright law in the court. It allows room to argue that perhaps aesthetic qualities are too abstract to be good basis for determining copyright qualification.
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)
The Supreme Court case, Feist Publications, Inc, v. Rural Telephone Service shows two arguments on issues of copyrighting facts. The case emerged when Feist Publication included numbers from Rural Telephone Service to be included in their own telephone book when Rural refused to share the information, and Rural sued for copyright infringement. The two main arguments are presented: one states that fact alone cannot be copyrighted, but compilations of facts can be considered an artistic input; therefore, the expression of fact in a "collection of words" can be copyrighted. However, the compilation of facts require a minimum degree of originality, and since copyright law only applies to creative aspects of the two dimensional work, a list of A-Z phonebook does not satisfy enough creativity or artistic merit to be qualified for copyright protection.
The Court ruled that Rural's listings did not meet the standards for “minimum creativity” and that the use of the listings did not constitute infringement. This decision emphasizes that copyright only extends protection to originality, not the amount of effort put into the creation of an artwork.
This recent case showcases a judicial activism in which the court uses aesthetic qualities to judge whether this particular compilation of facts, via phonebook, is under copyright protection. However, this decision complicates my argument greatly. Under Bleistein v. Donaldson, any artwork of a value should be granted copyright. Looking at the monetary value that the phonebook contains, the copyright should be granted, however its evidently low artistic value disqualifies the work of any copyright infringement. What is the minimum balance of artistic/tangible value that would grant a two dimensional artwork a copyright protection? Also, the case brings up demonstration of minimal originality as part of the qualification. The court only so far answers the question by saying that listing of facts is not providing enough creativity. Where does the line lie for minimal creativity? Aesthetic determination of the work seemed crucial in this case, for if the copyright was granted, the value of art in current society will diminish because creation of artwork has become so effortless and widespread, but perhaps it was because no clear quantitative standard to judging “minimum originality” was set by the legislature or the judiciary. The case weighs in on the necessity of aesthetic decision to promote progress, but also demonstrates that while aesthetic decision is good for case-by-case studies, it shows that lack of quantitative standards created inconsistency in what society has perceived as norms and requirements for a copyright protection over time.
Burrow-Giles Lithographic Company v. Sarony. 111 U.S. 53; 4 S. Ct. 279; 28 L. Ed. 349; 1884 U.S. LEXIS 1757
This landmark Supreme Court case rose about when Burrow-Giles lithographic company when Napoleon Sarony, a photographer of “Oscar Wilde No. 18,” sued the company for copyright infringement when it distributed lithographs of the photography without author’s consent and permission. The Company’s main argument was that photographs are products of a mechanical process, and is therefore not an art, and are not protected under article I, section 8, clause 8 of the United States Constitution—photographs are not produced under authorship as other means of art, such as writing and painting, are. Supreme Court concludes that Congress has the constitutional power to extend copyright protection to new emerging medium of expression, such as photography that represent “original intellectual conceptions” and “ his own genius and intellect.” The Court first argued that since Sarony included “Copyright, 1882, by N. Sarony,” at the corner of his photograph, it gave sufficient notice to the public of his exclusive right to the work. Secondly, although the Constitution does not include photographs under works of authorship in which are protected under copyright, it is only because the technology, when the statute was written in 1790, was not in existence. Providing the evidence that charts and maps were included under protection in Copyright Act of 1790, the court concludes that since photographs are a medium in which “idea of mind given a visible expression,” they also qualify under copyright protection under the constitution. Court goes further on, stating no ordinary photography of which “transferring to the plate the visible representation of some existing object” will not be given a copyright. Only photographs that are “useful, new, harmonious, characteristic, and graceful…entirely from his own original mental conception” and in effectively doing so—showcasing enough expression and originality to be granted such a protection. With this case, Supreme Court demonstrated a great activism in promoting and introducing new medium of expression to the culture. However, the last clause to the court’s argument, that a photograph must express sufficient originality according to court’s standard to be considered an art, creates a very subjective and aesthetic basis to which future photographic art/and recreations of the medium are to be judged. Words that were used by Justice Miller to describe an original photography are words conceptualized with different meanings according to every person’s mind and artistic taste. Law should be a concrete rule which should be understood and interpreted, to an extent, on a same level, and the aesthetics required by the court’s decision set minimal base to which people can agree on. This was the first real case in which the court’s decision in granting the copyright based entirely upon a subjective and aesthetic decision. I will argue the loosely set standards in the decision created inconsistency and unpredictability in future cases and did little to mold society a clear conception of photography as art.
This section of the United States Code prohibits the "unauthorized Fixation and trafficking in sound recording and music videos...without the consent of the performer or performers involved." In other words, it makes it clear that it is illegal to distribute music or music videos, online for example, without consent. According to the language used, it sounds like music videos are defined as recordings of live performances, rather than more abstract videos edited to reflect the content of the music. Elsewhere in the Copyright Code, phonorecords are defined as being separate from audiovisual works. But when music videos are available online, they become one more way for internet "pirates" to obtain a digital "phonorecord" without paying or receiving permission from the artist or copyright holder.
This is the only area where noticeable steps have been taken to stop the distribution of anime music videos. That is, stepping in on behalf of the interests of the musicians to control the distribution of their songs. Record companies are not beholden to the niche audience of anime fans, so are willing to act on the law when an infringement is brought to their attention. For the record company an entire creative work is being reproduced and transmitted in a music video; whereas for the copyright holders of a given anime, only relatively small portions of (if even the "heart" of) their works are reproduced. As they have done in various areas of internet music trafficking, music companies have the (moral or ethical) right perform the same way a domestic anime copyright holder would when faced with illegal distribution of an entire film or series. When a music video is downloaded, it is possible to detach the audio from the video and acquire the song on its own, or even just enjoy it in full as it plays over the video. Therefore using a song in a music video is closer to a clear-cut act of piracy than editing the video.
By Judge Alex Kozinski and Christopher Newman. Published in the Journal of the Copyright Society of the USA, Volume 46, No. 4, Summer 1999, pages 513-530
This article is a speech given by Judge Kozinski, a member of the Ninth Circuit Court of Appeals. While the speech is an overall discussion about the legitimacy of fair use, there is a significant portion devoted towards the idea of satire and parody and its place in fair use.
Kozinski disagrees with Seuss's thought that "The Cat NOT in the Hat!" is an attempt "to avoid the drudgery in working up something fresh." Instead, Kozinski feels that "It’s easy enough to spew a few lines of impromptu Seussian doggerel, but it takes some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for and recommend to their friends."
In general, Kozinski disagrees with the Bisceglia thought that a satirist can just pick a new work to focus on if he cannot acquire a license to the original work. He states:
"Even if the original work is used only as a vehicle, not just any vehicle will get you where you want to go. You can only get so many chuckles by mimicking something familiar. When this kind of satire really works well, it’s because there is something about the original that fits - or pointedly doesn’t fit - the subject"
Kozinski's stance demonstrates a willingness to grant more freedom to satirists. Similar to the Collado article, Kozinski is cognizant of the creative process and is aware that there are not always other options for satirists to choose from to make their point. In fact, Kozinski adds that "the fundamental premise of our copyright law is that the best way to encourage creation of valuable works is to let authors capture the market value of those works." It is the point of satire to create a different view on a well known material, and by restricting it too much, the spirit of copyright law will be broken.
Overall, Kozinski is a strong supporter of more fair use for satire and disagrees with his colleagues of the Ninth Circuit regarding the Seuss case.
By Adriana Collado. Published in Journal of Technology, Law, and Policy, Vol. 9, Issue 1, June 2004.
Collado's article goes through the differences between parody and satire as stated by various court cases. This analysis includes a look into the Campbell and Seuss cases. With regards to the Seuss case, Collado states that the Ninth Circuit "unnecessarily narrowed the Campbell holding and set a precedent inconsistent with the goals of copyright law and with the Campbell decision itself" reaching the same conclusion as the Tushnet article.
Collado then analyzes satire as a fair use and how Seuss was inconsistent with Campbell. Specifically, Collado takes issue with the conclusion that there would be significant market harm from "The Cat NOT in the Hat!"
"[I]t seems unlikely readers would regard “The Cat NOT in the Hat!” as a substitute for the original, especially since the works target different audiences. While the original Dr. Seuss work is sold in the children’s section of the bookstore, “The Cat NOT in the Hat!” would likely be sold in the adult humor section. Furthermore, the fact “The Cat NOT in the Hat!” was labeled as a parody on its front cover and the author’s name was clearly depicted reduced the possibility readers would confuse or substitute the secondary work for the original."
By Footnote 14 of the Campbell decision (cited above), Collado concludes, there should have been fair use protection for this satire as the potential for market harm was slight.
Collado is a proponent of more freedom for satires. She disagrees with the Bisceglia opinion that satirists can "shop around" for other material if they cannot find a way to make a comment on the original work. Instead, Collado feels that a satirist's ideas are "often intertwined with their underlying source material" and if a satirist must look elsewhere for material, "the idea might not be created at all, thus generating a result...contrary to the goals of copyright law." Finally, Collado argues that satires not only do not displace the market, but could even "increase demand for the copyrighted work" by increasing interest in the original .
Overall, Collado's article provides a well-reasoned insight into the reasons why satire should be given fuller fair use protection as opposed to the Seuss case.
By Rebecca Tushnet and Bruce Keller
Tushnet and Keller's article discusses the nature of parody and satire and the issues that can arise with making a clear distinction between the two. While the article involves copyright, trademark, and right of publicity cases, it is copyright that applies specifically to this discussion.
In their analysis, Tushnet and Keller applaud the "nuanced" reasoning employed by Justice Souter regarding the approach to satire. Specifically, they cite footnote 14 from the Campbell case (cited above) as a correct approach towards satire and parody.
The article then looks at the case of Seuss v. Penguin and proceeds to explain where the court made a mistake. In their opinion, the court was making a decision on "aesthetics" which the court should not be allowed to do. To determine that a work makes no comment on the original work involves passing "literary judgement" which goes beyond the scope of the courts. Also, if the case comes down to a distinction between parody and satire, anyone will be able to make legal arguments for both possibilities. Tushnet and Keller caution that with such a clear line between parody and satire, there is a large potential for the court to inadvertently suppress speech by making the "wrong" characterization of the work.
The article's conclusion is that the concept of a line between parody and satire should be "abandoned in favor of a fair use analysis that finds addition of critical insights...to be favored uses without judging the merits of those insights." The article is incredibly favorable to satire's ability to claim fair use from both a legal perspective and the general cultural perspective of protected speech.
Raustiala, Kal and Christopher Sprigman. The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. Research Paper No. 06-04. UCLA School of Law. January 2006. http://ssrn.com/abstract=878401.
The piracy paradox includes discussion on the “innovation and intellectual property in fashion design.” The piracy paradox essay is the most recent document expanding on the issue of fashion protection. While other articles in the past have brought up one side of the debate, mainly the importance of changing existing laws to protect fashion designs, this article goes into great depth about both sides of the argument. The fashion industry’s principle creative element is outside the domain of IP law. This article asks a very important question, “Why is copying in the fashion industry treated so differently from copying in other creative industries?” The author goes on to argue that copyright fails to deter innovation in the fashion industry because copying is not harmful to originators. Also, it explains how copyright functions as an important element of the apparel industry’s “swift cycle of innovation.” Another question answered is to what degree are IP rights necessary in particular industries to induce investment in innovation? The article is divided into three parts which include: a brief overview of the apparel industry, induced obsolescence and anchoring, and lastly, the broader implications of the fashion case.
Designs are frequently copied by retailers, such as H&M, which offers cheap copies of expensive fashion. Copying isn’t limited to retailers; magazines continually show examples of “splurge vs. steal” outfits. Also, copying is not limited to fashion as well, art, music, dance, and film are copied all the time but there are protections in place to protect an author’s work. The article talks about the new technologies which allow for the faster replication of fashion designs which leads to the swift cycle of innovation. Designers have to create new works at an even quicker pace nowadays to keep up with the current trends and create new trends in which people will want to buy. Even though the fashion industry has remained unaffected by the lack of protection, there is a standard IP theory which predicts that extensive copying will eventually destroy the incentive for innovation. This is one of the reasons lawmakers have been pushing to create some form of fashion design protection recently. This article is a great source for current, up-to-date information about the fashion piracy debate. Many important issues are brought up including, moving forward with fashion, the positive and negative impacts of fashion piracy protection, all of which are useful for my final paper in discussing what is the best method of protection and is it a viable solution. The explanation of the place of IP protection in fashion design and instances where copyright protection will beneficial is relevant to my final paper. This paper is defines the different processes in the fashion world and helps to clarify the important roles played in the one-day inclusion of fashion design into copyright legislature.
Richard A. Posner, The Journal of Legal Studies, Vol. 21, No. 1. (Jan., 1992), pp. 67-78.
In this article, which was published shortly before the Supreme Court heard the case of Campbell v. Acuff-Rose, Posner lays out an argument for how parody can be considered fair use. While Posner focuses heavily on the market and economic impacts of a parodic work (which is relevant to the fourth factor of 17 USC 107) he also considers the definition of parody. Posner states that for a parody to be considered fair use, there must be three qualifications:
1) That the parody uses the parodied work only as a target not weapon. It is from here that Posner divides parody into two categories: "weapon" parodies, where the target isn't the original work but rather uses the copyrighted work to comment on something else; and "target" parodies, which comment on the original work itself. The latter should be allowed to claim fair use (assuming it meets the other two qualifications) but the former should not.
2) The parodist should not be allowed to take a portion of the copyrighted work such that the parody becomes "a substitute for that work". Posner admits that this is a "vague criterion."
3) The fact that a parodist only takes a small amount of copyrighted material should not be relevant to fair use.
It is the first factor that is the most relevant to this argument. Posner's definition of a "weapon" parody is very similar to the definition of satire. This means that Posner is opposed to satire's ability to claim a fair-use defense as it should immediately be considered infringement.
As Alfred Yen, professor of law at the Boston College Law School, states in his introduction, this article "studies the construction of third party copyright liability in light of the recent Supreme Court case Metro-Goldwyn-Mayer Inc. v Grokster, Ltd.” The article is broken up into five sections: the first describes the doctrines that governed third party liability before Grokster, the second uses “fault and strict liability to expose the theoretical and practical tradeoffs implicit I these differing constructions, the third analyzes the case itself, the fourth describes the implications of the decision and “sets forth the general contours of an improved, post-Grokster construction of third party copyright liability, and the fifth gives some thought to the future of this subject matter.
The Grokster case is the latest in a series of cases where an internet service provider has been prosecuted for the actions of its users. Yet, even with this new decision in the books, little progress has been made to determine who is really the most responsible for infringement or how to hold them adequately responsible. Yen writes that “third part copyright liability benefits society by encouraging individuals to stop others from infringing, but those benefits come at a price… third party copyright liability suppresses non-infringing as well as infringing behavior.” Overall, this paradox illustrates the biggest deficit of internet copyright law: the inability to find the balance between, in Yen’s words, “desirable and undesirable consequences” of new technology. At this point in time, there seems to be no obvious strategy for regulating the internet without stifling future innovation and creation.
This article points out that although Grokster “gave the Supreme Court the opportunity to straighten out the law of third party copyright liability” little to no progress was actually made in interpreting pre-Grokster doctrines of third party copyright liability. Instead of “choosing between” existing “differing interpretations” of the law, Yen writes that the court “adopted a dormant theory of third party copyright liability, inducement.” Overall, Yen’s article shows that “inducement give courts a new tool for holding culpable defendants liable which reducing the risk of undesirable side effects.” Yen describes the Grokster decision as being “not a landmark, so much as a milestone, ratifying a continuing détente between those who build on the Internet and those in a position to regulate the builders.” This decision has also turned the focus of internet gate keeping to controlling software and PC uses ability to run that software rather than the ability to control the entire network.
Whether or not one agrees with the merit of the new inducement doctrine, this article is a comprehensive look at an area of copyright law that is important and continuing to quickly evolve. The story of these laws will continue to change drastically in the years to come, but this is a useful, informative and through-provoking look at the situation thus far.
In this article, Andrew Beckerman-Rodau asks whether the Grokster ruling was really a good decision or simply judicial activism. Judicial activism refers to the practice of a court not interpreting the law as it already exists but rather legislating from the bench and creating new legal interpretations. Beckerman-Rodau writes that the Grokster decision rightly recognizes “the conflicting goals which had to be balanced: protecting intellectual property to promote creative activities; and, the importance of not impeding creative and innovative conduct.”
Overall, Beckerman-Rodau also writes that the Grokster decision “does not represent a novel interpretation of the law. Rather, it is consistent with the underlying principles of intellectual property law and it is based on established unfair competition theory which is supported by existing precedent.”
The article begins with “an overview of the decision,” first looking at the facts of the case. Then it discusses what the court did decide – the application of the inducement theory – and what it did not decide – the ramifications of the Sony decision in this context. Then it goes on to deal with the underlying policy considerations of the case. In both Sony and Grokster the same conflicting policy concerns are raised, which deal with “the underlying policy of promoting creativity and innovation by granting property protection for the results of such activity versus withholding such property protection to avoid impeding technological developments.” Beckerman-Rodau states that “copyright law exists to provide benefits to the public, not to maximize economic benefit flowing to a creator.” The Grokster decision went in favor of the content holders, those looking to reap the maximum economic benefit.
The article continues by looking at the application of the new inducement theory. First, it looks at the iPod, stating that although the device has illegal uses and Apple is aware of the potential for infringement the knowledge alone is not enough to hold them liable. The fact that Apple has provided iPod owners with a legal model for acquiring music, iTunes, only further helps Apple avoid liability. Secondly, the article looks at the legality of DVRS – meaning digital video recorders such as Tivo. Again, this service does not encourage users to engage in illegal activity and does not intend for infringing activities to be its primary usage.
Finally Beckerman-Rodau concludes with a recommendation for the lower courts’ application of the Grokster decision. He writes that a good way to balance the concerns of chilling innovation with the concerns of allowing infringement to occur “would be to require sufficient proof of intent to meet the clear and convincing evidence standard for inducement liability. This would avoid chilling innovation because inducement liability would only apply in situations where it is obvious that a product is being distributed with the clear intent that it be used for infringing activity. Additionally, this heightened standard would not affect the ability of a copyright owner to sue direct infringers.”
Whether courts will take this sort of advice is yet to be determined, but Beckerman-Rodau clearly states that the court, in this instance, was not legislating from the bench and instead codifying “preexisting judicially recognized doctrines” in order to make a ruling in contentious legal territory. As Beckerman-Rodau suggests, online copyright liability is an area of law that is only beginning to come into the forefront of legal decision making and liability discussions and will be debated long into the future.
This Article points out the critical short-coming of the Grokster case: the inability to answer the question of what a technology vendor can be held liable for. Instead, the court announced a new doctrine for copyright – inducement – which is certainly a viable way of dealing with the situation, but fails to contend with information that was already on the table. Instead of somehow using the copyright legislature already in circulation to deal with the Grokster case, the court decided to shift focus and contend with a new doctrine.
Author Fred von Lohmann writes that this new decision leaves technology companies and their attorneys to “pick their way through a dangerous minefield of legal uncertainties.” Really, the problem is not the new doctrine of inducement itself, but the “continued uncertainty surrounding the traditional doctrines of contributory infringement and vicarious liability.”
Overall, this article states that legal uncertainty is particularly chilling to innovators because of the problem of statutory damages. Sometimes the penalties for technology end up being put on such a large scale that they can be looked at as a “corporate death penalty” because insurance is unavailable for such large claims. Sometimes, even just one of these sorts of claims can bankrupt a company. But, in contrast, patent law has no similar provision and additionally, patent claims are made primarily against copporations while in copyright, claims can be made not just against the company as a whole, but against the individual officers, directors and corporate investors. Therefore, the uncertainly left as a result of refusing to deal with contributory or vicarious infringement claims is thoroughly problematic and will only cause future courts and cases to continue to contend with the same problems, which could’ve been put to rest if the courts had chosen to deal with them.
The uncertainty surrounding contributory and vicarious infringement is not only troubling for future legal proceedings but also “chilling” for current and future innovators. The risks and uncertainties involved with these undecided doctrines propose trouble for innovators and investors of new multipurpose technologies because having substantial non-infringing uses may no longer be enough of a guarantee that a product will be allowed to be distributed.
Lohmann proposes that “if the Supreme Court is unwilling to address the scope of secondary liability, perhaps it is time for Congress to address copyright remedies.” He also feels that Congress should “abolish statutory damages for secondary copyright claims” because this would “leave copyright owners injunctive remedies and actual damages, putting them in no worse a position than litigants in most other areas of civil law.” This change would allow companies and investors to be able to make “reasonable business decisions about manageable levels of legal risk” without fear of unpredictable or unprecedented legal standards that could completely bankrupt their company or hinder their production beyond repair.
FISHER V. DEES (794 F.2d 432, 9th Circuit, 1986)
The case of Fisher v. Dees provides an example of the duality of satire and parody. The case was brought by Marvin Fisher and Jack Segal, who created and composed a song called "When Sunny Gets Blue", described by the court as "a romantic and nostalgic ballad". In 1984, Rick Dees, a comedian, contacted Fisher for permission to make a parody of the song for a comedy album. When Fisher declined, Dees went ahead and recorded the song anyway. Fisher sued, and the District Court ruled in favor of Dees. On appeal, the 9th circuit upheld the district court's ruling.
In the ruling, the Court reaffirms the statement made in Elsmere v. National Broadcasting Company with regards to the "conjure up" test. As with Elsmere, the court decided that a parody is entitled to use at least enough material to "conjure up" the original. This concept is quoted again in the
Raustiala, Kal and Christopher Sprigman. The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. Research Paper No. 06-04. UCLA School of Law. January 2006. http://ssrn.com/abstract=878401.
This long paper was written by Karl Raustiala and Christopher Sprigman. Ninety pages in its entirety, it is a thesis on IP law and Fashion Design. This paper is perhaps the most important piece on IP and Fashion Design to come out recently. The essay opens with a strong paragraph, the authors write the following.
"Advocates
for strong intellectual property (IP) protections note that scientific and technological
innovations, as well as music, books, and other literary and artistic works, are often
difficult to create but easy to copy. Absent IP rights, they argue, copyists will free-ride
on the efforts of creators, discouraging future investments in new inventions and
creations. In short, copying stifles innovation."
This idea that "copying stifles innovation," is not new and not only limited to Fashion Design. The same proverb applies neatly to writing, music, art, dance, film, anything that stirs the creative. The authors continue and say though trademarks are well protected, copying of designs are everywhere. The fact that the fashion design industry continues to put out new designs and accessories at an incredibly fast pace and seem unaffected by the copying defies what the authors call "standard IP theory." " The standard theory of IP rights predicts that extensive copying will destroy the incentive for new innovation. Yet, fashion firms continue to innovate at a rapid clip, precisely the opposite behavior of that predicted by the standard theory."
The sources cited in the paper are both common and uncommon, clearly related to fashion design and copyright while others take a more general role in explaining the place of public domain and free thoughts. The paper also shoes some pictures of examples of what would be copyright infringement and how it differs from trademarks. The authors continue to explain thoroughly the place of IP in fashion design and instances where copyright protection would have been beneficial. The paper also plays its own devil's advocate, denyin it of copyright protection, claiming, if the fashion design industry is so profitable now, why protect it? The continue and talk about the fashion cycle, the thought process to the pen, the pen to the paper, the paper to the catwalk, and then to closets around the world.
They come to a close, discussing how can fashion not be ubiquitious when all magazines do is analyze what is the hottest boot this season or the way to wear layers without looking like you are in hiding. "Indeed, IP law fails to protect the
core of fashion, the design. Despite this lack of protection, the fashion industry continues
to create new designs on a regular basis. The lack of copyright protection for fashion
designs has not deterred investment in the industry. Nor has it reduced innovation in
designs, which are plentiful each season. Fashion plainly provides an interesting and
important challenge to IP orthodoxy."
This paper is incredibly important to anyone researching copryight in any medium. Incredibly well written and supported clearly with pertinent sources, the paper helps to explain why the lack of IP protection in certain areas exists and how, if ever, fashion could be protected by IP law. The paper is very important as support for my thesis. It talks about the fashion-knockoff cycle and the inability to draw the line between piracy and authenticity. This paper is heavy on defining different processes in the fashion world and helps to clarify the important role processes play in the one-day inclusion of fashion design into copyright legislature.
This is a copy of the lawsuit Universal filed against MySpace on November 17, 2006, in the United States District Court of Central California. In the suit, Universal claims that MySpace is guilty of copyright infringement. Universal claims that the songs and music videos shown on MySpace are done so illegally and without permission from copyright holders. Universal uses Jay-Z as an example in their case against MySpace, saying that songs from his new CD, "Kingdom Come", are available on MySpace even though, at the time the suit was filed, the record had not been released. Universal says that MySpace is well aware of the copyright laws that it is breaking and continues to support the "user-stolen"content distributed on the site. They also say that MySpace knows that they don't have a liscense from the copyright holders of the songs and videos it distributes. The proof, says Universal, lies in the agreement each MySpace user makes with the site that gives MySpace control over what can be done with the content. Universal says that MySpace knows that these are not the real copyright holders, and yet continues to show infringing content without permission.
This case is extremely relevant to the YouTube copyright discussion. First off, it could convince MySpace and other similar sites to follow YouTube's lead and strike revenue sharing deals with major studios. The YouTube business model would then be seen as a blue print for similar companies, and this in turn would help shield YouTube and other sites from future lawsuits. However, this case could end up hurting YouTube. Universal claims that since MySpace edits and posts much of the content on the site, they are knowingly infringing upon the copyrights of the videos and songs available on their site. Although YouTube's users do much of the posting and editing, YouTube itself still edits user content. If the courts buy Universal's arguments, YouTube could be in grave danger of future lawsuits.
This article from the New York Times describes in detail the legal issues that Google deals with on a regular basis. Katie Hafner, who wrote the article, notes that any company that is large, successful, and has deep pockets, all qualities of the search engine giant, will attract lawsuits. Yet she says that Google "invites" lawsuits because of the company's "rush to create innovative new services. Professor Jonathan Zittrain of Oxford University is quoted in this article as saying that Google's strategy seems to be "just do it, and consult the lawyers as you go". He sees this as an offshoot of the late 90's internet boom culture which promoted new ideas and technology at the expense of possible legal trouble.
With Google's recent purchase of YouTube, many believe that the company is "exposing itself to a new spate of lawsuits". Hafner points out the fact that much of the content on YouTube is copyrighted material just copied and illegally posted, as well as the lawsuit filed against YouTube by Robert Tur, which Google will now have to deal with. However, Google has plenty of experience in copyright fights, and seems ready for the challenge.
Hafner spends the rest of the article detailing the reason's behind Google's aggressive policies toward fighting litigation and some of the most well known copyright and trademark cases involving YouTube. She first notes that Google now has a team of over 100 lawyers, stationed both overseas and in the United States, many of which are experts on intellectual property law. This team works tirelessly to fight nearly every single lawsuit filed against Google. They do t