For those interested in thinking about the interactions between state property law and federal copyright law, I provide below some background on the 1998 Washington Personality Rights Act, which is taken from the 2008 House Bill Report for HB 2727 (which clarified some aspects of the original act). If you are interested in reading the statutes, they can be found at Chapter 63.60 RCW.
In 1998 the Legislature enacted the Personality Rights Act, which established that every person has a property right in the use of his or her name, voice, signature, photograph, or likeness. The property right is exclusive to the person during his or her lifetime. It may be assigned or licensed while the person is alive. The property right does not expire when the person dies. It may descend in a will or other testamentary transfer, or, if none is available, by the laws of intestate succession. The right exists whether or not it was commercially exploited during the person's lifetime.
The duration of the property right depends upon whether the person's name, voice, signature, photograph, or likeness has commercial value. If it has commercial value, he or she is considered a "personality." Deceased personalities include all such persons who have died since 1948. For deceased personalities, the property right exists for 75 years after death. For deceased individuals not considered personalities, the property right continues for 10 years after the individual dies.
Any person who uses a personality's or individual's name, voice, signature, photograph, or likeness without prior consent infringes on this property right and is liable in an action for damages for the greater of $1,500 or actual damages, plus any profits attributable to the infringement.
There are several exceptions to the use of a person's name, voice, signature, photograph, or likeness. For example, it is not an infringement if the use is:
• in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest;
• for purposes of commentary, criticism, satire, or parody;
• in single original works of fine art that are not published in more than five copies;
• in literary, theatrical, or musical works, and any advertisements for those works;
• in a film, radio, television, or online program, or magazine articles; or
• an insignificant or incidental use.
Sunday, February 8, 2009
Saturday, February 7, 2009
Cablevision DVR Case
Recently, the U.S. Court of Appeals in N.Y. issued a decision lifting an injunction that prohibited Cablevision from offering its customers space on its servers to store television for later viewing. The Supreme Court is considering whether to grant certiori in the case and, in January, the asked the Obama administration if it wanted to weigh in on the matter. See the article here.
I thought this was interesting as we spoke briefly in class on the matter of TiVo and the time-shifting aspects of recording programs (a la Sony). I think this case also shows some clear boundaries outlining some prominent stakeholders in a copyright case. Movie studios and film networks are teaming up to argue that the Supreme Court should reverse the COA decision. On the other side, Cable companies are hoping that the decision will stand as it would save them millions by not having to buy and install DVR boxes in individual homes.
"Copyright being used to stifle creativity, rather than promote it"
The University of the South owns the copyright of Tennessee Williams’ plays such as “A Street Car Named Desire.” The university is threatening to sue a one-man act entitled “Blanche Survives Katrina in a FEMA Trailer Named Desire.” While the university alleges that this one-man act is an infringement “on the university’s valuable intellectual property rights,” the author of this article maintains that the act is a transformative use. In addition, the author of this article emphasizes that the act’s author and actor has a strong fair use defense since the act is a “parody of both current events and the original play.” The university, on the other hand, maintains that the fair use defense will not work since the parody is only directed at current events.
Here is the link to the article: http://www.techdirt.com/articles/20090206/1241493676.shtml
Here is the link to the article: http://www.techdirt.com/articles/20090206/1241493676.shtml
Thursday, February 5, 2009
Lawrence Lessig on NPR
Professor Lessig will be a guest on NPR on Friday, 02/06/09 at 1 pm. He will be discussing his recent article in the Wall Street Journal and his views on the present state of copyright law. The local NPR station where he will be a guest is KUOW 94.9 FM
Wednesday, February 4, 2009
A Love Affair With the Cell Phone Novel
I was browsing through an old New Yorker and I found a story on the advent and rise of the cell phone novel in Japan, by Dana Goodyear.
http://www.newyorker.com/reporting/2008/12/22/081222fa_fact_goodyear?currentPage=4
The Japanese publishing industry is shrinking (20% in the last 11 years), and the rising success of cellphone novels, the largest readership of which are teenage girls, is changing the business model for publishing houses. I think there are many parallels that can be drawn between this kind of technology and the response of traditional copyright stakeholders to embrace change and profit from it (rather than attempt to quash the mutation). It does raise a lot of questions as to how, though.
For a brief snippet of the article: "Even established publishers have started hiring professionals to write for the market, distributing stories serially (often for a fee) on their own Web sites before bringing them out in print. In 2007, ninety-eight cell-phone novels were published. Miraculously, books have become cool accessories. “The cell-phone novel is an extreme success story of how social networks are used to build a product and launch it,” Yoshida, the technology executive, says. “It’s a group effort. Your fans support you and encourage you in the process of creating work—they help build the work. Then they buy the book to reaffirm their relationship to it in the first place.” "
Something I can't help but think about as we all seem to move, faster and more feverishly, towards free digitial information, is how business models must change to still profit. In essence, technological innovation seems to, at times, out pace the business models and structures that often enabled the innovation in the first place. Increasingly, the owners of websites and blogs count on advertising dollars to sustain the overhead costs of producing information. Without subscription costs, or book purchases, is advertising enough to sustain the publishers? And if it is not, are we moving towards an age where the middle-managers, the clearninghouses, the website hosts, either monopolize the market (like Google or Yahoo) or fail miserably?
I suppose I don't have much of any answer to my question....but I do wonder, and feel fairly certain, that it is unwise to rest the future of profitability in the digitial age on advertising.
It seems that you are either successful as a big fish (Google), or an individual author, with an individual blog, with costs that are low enough to sustain modest advertising revenues. With anything that is given (be it civil rights or free information), expectations shift and the initial freedom that is given may, in most cases, only expand, not be restricted. If we all expect free information, there is little doubt that anyone would support facebook charging a subscription rate, or google charging a "search" rate. Everything seems to be moving in the direction of "free." Why is U.S. copyright law (as it seems to me) protecting a model that is no longer economically viable in the digital age?
And for that matter, how are westlaw and lexis nexis still in business, doing business as usual?
(with furrowed brow),
Lauren Sancken
http://www.newyorker.com/reporting/2008/12/22/081222fa_fact_goodyear?currentPage=4
The Japanese publishing industry is shrinking (20% in the last 11 years), and the rising success of cellphone novels, the largest readership of which are teenage girls, is changing the business model for publishing houses. I think there are many parallels that can be drawn between this kind of technology and the response of traditional copyright stakeholders to embrace change and profit from it (rather than attempt to quash the mutation). It does raise a lot of questions as to how, though.
For a brief snippet of the article: "Even established publishers have started hiring professionals to write for the market, distributing stories serially (often for a fee) on their own Web sites before bringing them out in print. In 2007, ninety-eight cell-phone novels were published. Miraculously, books have become cool accessories. “The cell-phone novel is an extreme success story of how social networks are used to build a product and launch it,” Yoshida, the technology executive, says. “It’s a group effort. Your fans support you and encourage you in the process of creating work—they help build the work. Then they buy the book to reaffirm their relationship to it in the first place.” "
Something I can't help but think about as we all seem to move, faster and more feverishly, towards free digitial information, is how business models must change to still profit. In essence, technological innovation seems to, at times, out pace the business models and structures that often enabled the innovation in the first place. Increasingly, the owners of websites and blogs count on advertising dollars to sustain the overhead costs of producing information. Without subscription costs, or book purchases, is advertising enough to sustain the publishers? And if it is not, are we moving towards an age where the middle-managers, the clearninghouses, the website hosts, either monopolize the market (like Google or Yahoo) or fail miserably?
I suppose I don't have much of any answer to my question....but I do wonder, and feel fairly certain, that it is unwise to rest the future of profitability in the digitial age on advertising.
It seems that you are either successful as a big fish (Google), or an individual author, with an individual blog, with costs that are low enough to sustain modest advertising revenues. With anything that is given (be it civil rights or free information), expectations shift and the initial freedom that is given may, in most cases, only expand, not be restricted. If we all expect free information, there is little doubt that anyone would support facebook charging a subscription rate, or google charging a "search" rate. Everything seems to be moving in the direction of "free." Why is U.S. copyright law (as it seems to me) protecting a model that is no longer economically viable in the digital age?
And for that matter, how are westlaw and lexis nexis still in business, doing business as usual?
(with furrowed brow),
Lauren Sancken
Obama Hope Poster a Copyright Infringement...or Fair Use?
We've seen the red, white, and blue image of Barack Obama, with the word "HOPE" EVERYWHERE in the past year. It's been used on posters, t-shirts, buttons, even cupcakes. This iconic image probably now rivals those of Che Guevara and Mao Zedong.
The poster was created by an L.A. based street artist and was admittedly based off of an AP photograph taken in April 2006. Of course, with the explosive popularity of the poster, the AP now was credit and compensation. For now, the artist (Shepard Fairey) and his attorney are claiming fair use.
Fairey found the original image on google images and released his reproduction on his website after its creation, at which point it was downloaded by the thousands. Even if Fairey's use is determined fair, perhaps he could thus be found liable for contributory infringement?
It is a little unclear whether or how much Fairey himself is profiting from the exploitation of the image. He has licensed the image out book publishers, but in lieu of payment he asked that a donation be made to the National Endowment of the Arts. And the Obama inaugural committee charged anywhere from $100-$500 for an autographed poster. It seems that the parties who are really profiting from the image are the poster producers and smaller players who reproduce the image on t-shirts, buttons, and the like. Trophy Cupcake for example charged a whopping $4.50 per Obama cupcake on election day.
In comparing the two photos, there are striking similarities, such that there could be arguably be a substantial amount of copying. However, Fairey's poster (to me) is different enough and the image itself, is generic enough that Fairey could have created a similar image without every having seen the original photo. Look at the link below which has the two photos - the head and eyes are tilted at different angles, Fairey removed the American flag background, his tie is a different color, etc.
In addition, I think that Fairey's work is transformative of the original photograph and probably is affecting a market that the original photo would not have reached. I don't think that people are interested in the photo, but the artistic and iconic nature of Fairey's work. I personally find the poster to be fair more appealing and inspiring than the original photograph.
It will be interesting to see how the public reacts if an infringement suit is actually pursued by the AP.
See the article at: http://news.yahoo.com/s/ap/20090204/ap_en_ot/obama_poster
The poster was created by an L.A. based street artist and was admittedly based off of an AP photograph taken in April 2006. Of course, with the explosive popularity of the poster, the AP now was credit and compensation. For now, the artist (Shepard Fairey) and his attorney are claiming fair use.
Fairey found the original image on google images and released his reproduction on his website after its creation, at which point it was downloaded by the thousands. Even if Fairey's use is determined fair, perhaps he could thus be found liable for contributory infringement?
It is a little unclear whether or how much Fairey himself is profiting from the exploitation of the image. He has licensed the image out book publishers, but in lieu of payment he asked that a donation be made to the National Endowment of the Arts. And the Obama inaugural committee charged anywhere from $100-$500 for an autographed poster. It seems that the parties who are really profiting from the image are the poster producers and smaller players who reproduce the image on t-shirts, buttons, and the like. Trophy Cupcake for example charged a whopping $4.50 per Obama cupcake on election day.
In comparing the two photos, there are striking similarities, such that there could be arguably be a substantial amount of copying. However, Fairey's poster (to me) is different enough and the image itself, is generic enough that Fairey could have created a similar image without every having seen the original photo. Look at the link below which has the two photos - the head and eyes are tilted at different angles, Fairey removed the American flag background, his tie is a different color, etc.
In addition, I think that Fairey's work is transformative of the original photograph and probably is affecting a market that the original photo would not have reached. I don't think that people are interested in the photo, but the artistic and iconic nature of Fairey's work. I personally find the poster to be fair more appealing and inspiring than the original photograph.
It will be interesting to see how the public reacts if an infringement suit is actually pursued by the AP.
See the article at: http://news.yahoo.com/s/ap/20090204/ap_en_ot/obama_poster
iTunes, DRMs and the first sale docrine (?)
I am wondering if anyone has any thoughts on something I've been thinking about. In class yesterday, Professor Laster, in his summary, said that the first sale doctrine exhausts the copyright holder's right to control the distribution. As I understand it, that means, for example, that if I buy a music CD, I can lend it to my friend. I know Apple recently announced it would stop selling music encumbered by digital rights management restrictions - seems to me as a result of consumer power - but are DRM encumbrances legal? Was apple allowed to do this in the first place? Ostensibly, when I buy a song on iTunes, I'm not just buying a license to use the song, am I? Or maybe I am? I thought I was buying a copy of the song. Does it have to do with a difference in medium, ie the tangible medium problem? Am I missing something? A statute? At any rate, it seems like in this case the market took care of the situation and Apple is now getting rid of its DRMs. Victory.
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