Chapter 2
Interactive Guide to
Media Law and Ethics
Copyright
andIntellectual Property Law
Property rights and emerging
ideas of fair use
Traditionally, copyright,
trademark and patent law has been considered part of the body of property
law. Civil liberties such as free speech rights have not been a factor
until recently.
Yet as this Time Magazine (not RIAA) parody poster
(left) demonstrates, people have begun to feel that there are personal
rights at stake.
Below, the 2 Live Crew album with a parody of Roy
Orbson's "Pretty Woman" -- a case that went to the U.S. Supreme
Court.
Music "piracy" has emerged as a red-hot controversy, as
digital technology shakes up old established systems. On the one hand, music lovers have found it easy to share
high quality copies of their favorite songs over the World Wide Web. They
feel the costs of CDs and DVDs are too high for the value, and are exchanging
copies without paying copyright fees. This is called copyright infringement
or copyright piracy. On the other hand, recording and movie indutries are filing thousands of lawsuits to protect their property and, not incidentally, make up for their perceived losses.
The recording industry has successfully argued that they must be allowed to identify and sue users in P2P networks who thought they were anonymous. They
have also extended the duration of US copyright laws and made it easy
to shut down potentially offending web sites. They have been less successful
in preventing new technologies from reaching the American public, although the MGM victory in the Grokster case is a serious blow to P2P proponents. In any event, technology and the law have narrowed the scope of what is called the "public
domain," that is, the songs and pictures and movies that are so old
that they belong to everyone.
The rights of artists
is another area where controversy surfaces frequently, reflecting tensions between
free speech rights to parody and the rights of artists to protect their
work. These controversies are usually worked out in court cases like those
involving 2 Live Crew, Dan Fogerty or George Harrison.
But they are nothing new.
Recent events:
Aug, 2008 -- Federal courts are backing away from a position that made it easy for the Recording Industry of America (RIAA) to sue individuals who shared copyrighted music for hundreds of thousands of dollars. In a Minnesota lawsuit for $222,000 against Jammie Thomas, a federal judge said that infringement could not simply be the possession of illegally downloaded music, but rather, proof of illegal file sharing was the bar for a finding of copyright infringement. The decision was celebrated at this blog site. The Wall Street Journal's Law Blog had a few choice comments: "This decision is bad news for the bottom feeding, shakedown RIAA lawyers who lose a reliable meal ticket." and "I believe the RIAA has surpassed the IRS and TSA as the most hated organization - at least in some circles. Quite a distinction for a non-government entity."
April, 2008 -- Yoko Ono sues producers of a film released in the USin April, 2008 -- "Expelled"-- for alleged copyright violations. Read the AP article here and the press release from Expelled here. Also, a collection of discussions about Expelled. Also here is the complaint Film makes a weak but hyped-up case about discrimination against people who support creationist theories of evolution called intelligent design. The song "Imagine" is played for roughly 15 seconds in order to criticize the ideas is suggests, for examle, that we would be better off without religiion, class or property differences. Do the owners of the song have the right to block it from commercial use if it is being criticized in that commercial use? What is fair use, anyway? For a critical view of Expelled, see Expelled Exposed or "Why do people laugh at Creationists?" (and WDPLAC part 22)
Jan 2008 -- Ford Motor Co. blocks printing of a "Black Mustang Club" calendar, initially seeming to claim that any picture of any Ford car is property of Ford. In fact, they were worried about the use of the Ford logo, which seemed to imply company backing.
Oct 2008 -- The 70s rock group Heart objects to the use of Barracuda Heart's songwriters, Ann and Nancy Wilson, released a statement saying that "Sarah Palin's views and values in no way represent us as American women" and insisted that the McCain-Palin campaign not play their song. As Christopher Sprigman (associate professor at the University of Virginia School of Law) and Siva Vaidhyanathan (associate professor of media studies and law at the University of Virginia) say: "While copyrights should be respected, artists who abuse copyright to attempt to muzzle politicians' speech are sacrificing the broader interest for their own feelings and agendas. This kind of conduct is not what copyright is about; copyright law exists to help artists get paid, and politicians who pay for a blanket license to use a song in a campaign are doing exactly what the copyright law says they should. Artists' copyrights are important, but the vibrancy of our political discourse is absolutely central. If John McCain wants to tell voters that Sarah Palin is a barracuda, and the most effective way to do so is via Heart's song, then by all means let it play. And if the Wilson sisters want to mock Republican misuse of a feminist anthem, then let them sing from the mountaintops. But let's keep courts out of it."
Background:
In England,
licensing of book printing began in 1534 when the Stationers' Company was given
a printing monopoly. In 1710, first Copyright Act (called the Statute of Anne) introduced two new concepts - 1) the
authorwas the owner of copyright and 2) A fixed term of
protection for published works. It was originally 14 years, renewable for another 14 years.
The US Constitution
of 1787 contained the power to grant copyrights and patents in Section 8,
Clause 8:
"To promote the Progress
of Science and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries"
While the Constitution protected
American works, it did not protect works registered in other nations.
Charles Dickens, the 19th century author of Christmas Carol and Tale of
Two Cities, was outraged by the imitations and outright thefts
of his work that appeared in print in America. Dickens and other authors
demanded an international copyright treaty. The first treaty discussions
(or "convention") began in 1886, but the US refused to join
until over a century later, in 1989, partly because of a general dispute
over the role of the United Nations.
"You take the uncompleted books of living authors,
fresh from their hands, wet from the press, cut, hack, and carve them
... Now, show me the distinction between such pilfering as this, and picking
a man's pocket in the street." -- Charles Dickens in "Nicholas
Nickleby"
Dickens' complaints were heard in Britain. In 1875, a Royal Commission on British copyright law advised a copyright treaty with the US to provide reciprocal protection of British and US authors. After preparatory work had been carried out for the forthcoming Conference of Powers This resulted in the Berne Convention for the Protection of Literary and Artistic Works, also called the International Copyright Act of 1886. The UK ratified the Berne Convention in 1887. The US took another 102 years to ratify the international copyright act.
Today, three major areas
of intellectual property law are:
Patent -- Ideas, processes
and inventions can be patented through the U.S. Patent Office, with protection
lasting 28 years. In the area of communications, hardware is usually patented
while software is usually protected by copyright. Since patents usually involve
scientific and technical products, they don't need to be covered in detail
in a media law class.
Trademark -- Commercial
identification of goods in the marketplace, such as Coca-Cola ® is possible
with trademark protection. A registered trademark ( ® ) or one being registered
(TM) is renewable indefinitely. Trademarks must be used or they may be considered
abandoned. Aspirin, cellophane, cornflakes, yo-yo, linolium, escalator and
other are examples of abandoned trademarks. Trademark is regulated on the
federal level under the Lanham Trademark Act of 1946 but states also have
concurrent jurisdiction.
Copyright -- All kinds
of creative work -- dance, sculpture, writing and music -- may be copyrighted
and protected from infringement once they are fixed in a tangible medium.
The work should have a copyright notice, but copyright is automatic once the
creative expression is fixed. Copyright terms are fixed (as follows) after
which a work falls into the public domain:
Works copyrighted by individuals after 1978 -- life of
the author plus 70 years.
Works copyrighted by corporations ("works made for hire")
-- 95 years. (See copyright "map")
Works copyrighted before 1978 -- 95 years regardless of
how they were produced (by individual or corporations
Frequently asked questions
What can be copyrighted? --
Most types of literary and artistic works may be copyrighted.
Factual and historical information can't be copyrighted, although a particular
description of a news or historical event will have copyright protection.
Generally, ideas can't be copyrighted, only ideas expressed in a tangible
medium.
How are things copyrighted?
In the US, copyright is registered
at the US Library of Congress Copyright
Office for a small fee. Original works not registered are still protected
under Copyright law, but you should register in order to bring a lawsuit
for infringement.
In the United Kingdom, official copyright registration
is not available, although several unofficial registrars can help with proof
of possession of materials at certain times if needed. For more information,
consult the UK's intellectual
property site.
*** What is fair use? -- Students,
authors, pundits, educators and others are free to cite portions of copyrighted work for the purposes of discussion, debate or education so long as there
is no commercial value in using these portions of the works. Just how small
a portion, and how little commercial value is still being worked out, and
over the years, the "fair use" concept has eroded. In the
US, the four part test of Fair Use is described in the Copyright statute and
also in court cases. It involves the following items:
the purpose and character of the use, including whether
the use is commercial or for nonprofit educational purposes;
nature of material itself
percentage used in relation to the work as a whole; and
effect on the market for or value of the original works
Copyright and trademark laws
• Berne Convention -- International copyright law ratified
by the US in 1989, also in DMCA 1998, is administered by the World
Intellectual Property Organization under the WTO. The U.S. refused to join
the Berne (Switz.) Convention for the Protection of Literary and Artistic Works
when it first convened in 1886. Until the last few decades, the U.S. had been
the worlds most flagrant copyright pirate, arguing that the common heritage
of mankind -- e.g., Dickens, Bronte, Hugo, and the other great European authors
-- belonged in the public domain. Naturally, once the U.S. became a major exporter
of copyrighted work, not only was the Bern convention finally signed (in 1989)
but the U.S. began pushing for even tougher sanctions on intellectual property
law.
• Copyright Act of 1976 -- US copyright law
-- Rewrite of the original 1790 Act and its 1910 revision, deals with what is
copyrightable and how it is done. It brought the US into initial compliance
with international copyright treaties. And it also attempted to deal with what
were then new problems like photocopying, audio and video recording and cable
televison. See US Code Title
17.
These recent laws have been incorporated into US Code
Title 17:
Anticybersquatting Consumer Protection Act
of 1999 -- made it illegal, under a possible $100,000
fine, to buy a brand name trademarked by someone else as an internet domain
name for the purpose of recovering money in resale. When passed, the law touched
off a flurry of suits where cybersquatters were brought to court over famous
names like the America's Cup, the National Football League and Harvard University.
Today most domain name disputes are settled by WIPO.
** Digital Millenium Copyright Act, 1998
-- Brought US into compliance with WIPO and required embedded
anti-copying circuitry in VCRs. It also created penalties for circumventing
copyright protection devices and set up a controversial procedure for taking
copyrighted works off the Web. The procedure works like this: If a server
administrator is notified of a potential copyright violation, the server administrator
must either shut down the users account or file an affidavit (a statement
to the court) which says, under penalty of perjury, that the administrator
does not believe the user has infringed on a copyright. This procedure clearly
tilts the legal presumptions away from the accused.
Sonny Bono Copyright Term Extension Act, 1998 -- , amends the copyright laws by extending the duration
of copyright protection. In general, copyright terms were extended for an
additional 20 years.ÊIn the case Eldred v. Ashcroft, the duration was challenged
under the idea that the Constitution only provided for a "limited"
amount of time for exclusive copyright to "promote the progress of science
and the useful arts."
No Electronic Theft Act -- 1997 Strong criminal penalties even for profitless copyright infringement.
Some scientific groups were worried that scientists who post copies of their
papers on their own web sites for their students would be proecuted under
the law, since in many cases their articles are copyrighted by peer-reviewed
journals. Under the new law, a person who "willfully"' infringes
on copyrighted material worth at least $1,000 could be imprisoned for up to
one year and For copies with a retail value of $2,500 or more, the violator
could be imprisoned for up to three years and fined up to $250,000. A second
offense could lead to a prison term of up to six years.
Audio Home Recording
Act, 1992 -- Collected copyright fees from sale
of blank tapes and CDs to cover potential infringements when audio files were
copied to tape or CDs. MP3 technology has eroded the arrangement but
some argue that this law is still an adequate foundation for harmonizing
the interests of copyright owners, consumers and electronics hardware producers.
Some of the most lively examples of "fair use" are in video parodies found on YouTube. For instance:
Parody as Fair Use
Parody of the famous "Who's on First" by Warner Bros.
When 2LiveCrew parodied Roy
Orbison's 1960s classic "Pretty Woman," the company run
by Orbison's heirs (Acuff-Rose) sued Luther Campbell of 2LiveCrew.
The US Supreme Court, said that parodies are protected under the Fair
Use doctrine provided that the parody has substantial transformative
value. In other words, it must be true parody, not a cover. .Campbell's
version did have that value, so he won the suit. The idea here
is that artists are protected from performers who merely want to perform
their work without permission, but not from people who want to make
a serious parody.
** TERM: Eldred v. Ashcroft Jan. 2003 -- In
oral arguments,
petitioners argued that the 1998 Sonny Bono Copyright Term Extension Act,
which extended the term of subsisting and future copyrights by 20 years exceeds
Congress's power under the Copyright Clause and violates the First Amendment.
Some have argued that Disney has pushed the extension. In the majority
opinion, Justice Ginsberg said Congressional power to extend copyright
terms was not limited. For a good commentary on this issue, see "Why
Copyright Today Threatens Intellectual Freedom," by Marjorie Heins.
** OWNERSHIP: Community for Creative Non-Violence v.
Reid , 1989 -- A sculptor commissioned to do a work
concerning a homeless man by the community for creative non-violence was not
an employee of the group and, absent a specific contract, was the owner of
the copyright to his work even if CCNV paid for his time and the copy of the
sculpture. This is the case that defined the "work for hire" doctrine.
** WHAT IS COPYRIGHTABLE: Fiest Publications v. Rural Telephone Service,
1991 -- Only original arrangements of facts can be copyrighted,
not facts themselves. Fiest was competing with own telephone book.
Copyright and free speech / fair use cases
Sapient v. Geller,, -- Jan. 2008 -- Brian Sapient, a member of the "Rational Response Squad," posted a YouTube video, but Geller issued a "take down order" under the DMCA. This led to a suit, but the courts threw it out. Clearly, copyright infringement claims cannot stave off serious criticism.
Online Policy Group v. Diebold Inc, -- Oct., 2004 -- In the ongoing debate over the security of electronic voting machines, a California court found Diebold Inc. guilty of deliberately misrepresenting its copyright claims under the DMCA as it attempted to silence criticism.
In his decision, Judge Jeremy Fogel wrote, "No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright .. . the Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold's copyright interest." See links from the Electronic Frontier Foundation.
The Wind Done Gone April, 2001 -- The 11th Fed. Circuit court temporarily blocked publication of "The Wind Done Gone," a parody of the appallingly grandiose Southern historical fiction Gone With the Wind. The parody was written from the point of view of a slave in Scarlet O'Hara's house. The injunction was soon lifted and in June, 2001 the book was published. A year later, the lawsuit on behalf of the heirs of the author of Gone With the Wind author was settled. The court's final decision noted: "Copyright does not immunize a work from comment and criticism." An ongoing issue is the extent to which prior restraint (in the form of a temporary injunction) should be used in copyright cases such as this one.
Rosemont Enterprises v. Random House, 1966 -- Copyright ownership of articles used for research on a book about mysterious billionaire Howard Hughes doesnt mean that a book author infringed the copyright. Copyright laws cant be used to keep public figures out of public eye.
Time Inc. v. Bernard Geiss, 1968, where use of sketches based on Zapruder film of Kennedy asassination was not a copyright infringement because one cant prevent public discussion of controversial issues.
Copyright and technology
** Sony v. Universal City Studios, 1984.
Universal sued to block the spread of Sony VCRs. The Supreme Court said that
even though 100 percent of the material was often copied, the purpose of its
use was legitimate if it was non-commercial "time shifting" for
home viewing. This ruling was central to the arguments in A & M v. Napster
(below).
Washington Post v. TotalNEWS, 1997 -- Federal court finds that TotalNews infinged the Washington Post copyright (and others like CNN, Dow Jones, Reuters and Time) by putting its browser frame around Post articles. It's interesting that in a "future history" of the media, future changes in media structure hinge on the idea that copyrighted work could be stripped down to facts and then re-used by "Googlezon." According to the fable, the "slumbering Fourth Estate awakes to make its final stand" in 2011 but loses the copyright case and eventually goes out of business. In fact, the Post v. TotalNEWS case was the stand and the newspapers were successful. A good summary of the case is found at Gigalaw.com. (FYI, one newspaper encouraging users try to create content is www.blufftontoday.com )
RIAA v. Diamond Multimedia, 1999 --
RIAA tried to kill MP3 players, very similar to Sony case (above). Court did
not allow it.
A&M Records v. Napster, 239 F.23d 1004 (9th Cir. 2001) --Time
shifting as per Sony v. Universal City not valid when dissemination was deliberately
widespread. MP3.com and Kazaa also embroiled in legal disputes over music
sharing. More on P2P networks and their legal problems at this Wired
archive site.
Universal City Studios v. Corley 2001 -- De-CSS
program is a violation of the DMCA. Even linking to a De-CSS site is a violation
of the DMCA.
** MGM Studios Inc. v. Grokster Ltd., 125 US 2764, 2005 -- File sharing systems allow contributory copyright infringement when their principal object is the dissemination of copyrighted material to people who post or download music files.
One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.
A s the Benedict.com copyright web site says of this case: " Finding itself stuck between the Sony rule and the perceived egregious conduct of P2Ps, the court found an out by creating a new theory of secondary liability for copyright infringement – the Inducement Theory.
“Sony’s rule limits imputing intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law.”
The Inducement Test states that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. The court goes to great pains to stress that the inducement rule premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.
Fogerty
v. Fantasy, 1994, John Fogerty and former manager sued each
other over copyright when Fogertys new songs sounded somewhat like his old
ones whose copyrights were owned by his former manager at Fantasy Records.
Fogerty won the right to sing the way he wanted to sing. The US Supreme
Court review was also a landmark in recovery of attorneys fees. Fantasy
did not want to pay Fogerty's attorney fee and argued that defendants were
not entitled to recover the fees unless a plaintiff was acting in bad faith.
The court rejected that argument as a double standard and said judges should
treat plaintiffs and defendants alike in exercising discretion about who
pays for the lawsuit. But the larger point -- that artists have moral rights
to their creations -- is still in dispute in the U.S.
Bright
Tunes Music Corp. v. Harrisongs Music, Ltd. 1976 -- Former
Beatle George Harrison wrote a song entitled "My Sweet Lord"
with a tune that sounded very much like the Chiffon's song "He's
So Fine." The court found that George Harrison had unintentionally
infringed on the Chiffon's Bright Tunes Music copyright.
Buchwald v. Paramount
Pictures, 1990, In the script for Coming to America with actor
Eddie Murphy, the studio contracts were alleged to be so unfair as to be
inherently invalid. The problem was that writer Art Buchwald got precent
of net profits, not of gross profits. Creative accounting meant that there
was no net profit. The court found for Buchwald. A smilar lawsuit over the
script for Forrest Gump was settled out of court.
Cyber trademark cases:
Panavision International v. Toeppen,
1998 -- Cybersquatter's purchase of domain names for later resale violated
Trademark Act. Illinois man had registered 240 names, including Eddie Bauer,
Lufthansa, Nieman Marcus, and wanted $13,000 from Panavision to relinquish
name. In response, Congress clarified the connection between Trademark and
domain name with the Anticybersquatting Consumer Protection Act of
1999.
Brookfield Communications v. West Coast
Entertainment, 1999 -- Both companies
wanted to use "moviebuff.com" as a web site. The one with the earliest
trademark claim was able to use it as a Web site.
Playboy Enterprises v. Welles
-- Take a look at Terri Welles Web site, then look at the source code (View/Source) and check out those "meta"
tags at the top describing the site. Ms. Welles is one of the few people on
earth who can use the word "playboy" in her meta tag.
Walmartsucks
v. WalMart (Oct. 2000) --Case No. D2000-1104-- (Note
link is to MS Word document) This is the famous 2000 case in which WIPO originally said
that "walmartsucks.com" is confusingly similar to "WalMart.com." The WIPO changed its opinion in light of US law. Meanwhile, the WalMartSucks site is no longer operating and forum.walmartsucks.com is now a location for criticism of the company.
In light of the significant fame associate [sic] with
the WAL-MART mark, consumers are likely to believe that any domain name
incorporating the Wal-Mart name (or WalMart) is associated with Complainant.
The domain names at issue are likely to confuse customers and cause them
to believe mistakenly that these domain names are associated with Wal-Mart
stores and specifically, the Wal-Mart family of stores in Canada, Puerto
Rico and the United Kingdom. This is particularly troublesome, since Mr.
Harvey clearly intend to use these domain names to disparage Complainant
and Complainants WAL-MART mark. Neither Respondents nor Mr. Harvey can
claim protection under U.S. law for a Canadian website that disparages Complainant.
Freedom of expression under Canadian law certainly does not translate into
a license to libel Complainant by writing, for example, that Wal-Mart [has]
something against Puerto Rico. Complainant asserts that Mr. Harveys
so-called plan to develop freedom of expression forums is nothing more than
a clever ploy to make Complainant dance to his tune.
Bayer AG v. Dangos and partners --Case
No. D2002-1115-- Here WIPO said the domain names bayersucks.com and similar
names were "confusingly similar to the ComplainantÕs famous trademark"
and the "Consumers seeking information about BAYER goods and services
are likely to assume that the Internet location would correspond to the trademark
and products." This time, WIPO took pains to explain that this was a
case of cybersquatting. "These domain names are not used to make social
commentary or criticism. Instead, the Respondents "sucks" domain names link
to websites offering to sell the domain names. Consequently, this matter differs
from UDRP "sucks" decisions favoring registrants who linked "sucks" domain
names to commentary and Complaint websites raising legitimate free speech
issues (Diageo plc v. John Zuccarini, Case No. D2000-0996 of October 22, 2000)."
Diageo plc v. John Zuccarini and Cupcake Patrol
-- Case No. D2000 - 0996 -- There is no evidence before this
Administrative Panel that the Respondent intends to use the said domain names (Guinnesssucks.com)
as the addresses or links to any sites which could be described as "complaint
sites". For this reason the issues canvassed in any of the decisions relating
to free speech are not relevant in this case.
Vivendi Universal v. Mr. Jay David Sallen and GO247.COM,INC.
Case No. D2001-1121 -- Bearing in mind that the Panel has found
that non-English speaking Internet users would be likely to attach no significance
to the appended word "sucks" and would therefore regard the disputed domain
name as conveying an association with the Complainant, the Òfree speechÓ argument
of the Respondent is answered by the same reasoning as was adopted in Monty
& Pat Roberts, Inc., v. J. Bartell (WIPO Case No. D2000-0300) concerning the
domain name < montyroberts.org>: "[T]he right to express ones views is not
the same as the right to use anothers name to identify ones self as the
source of those views. One may be perfectly free to express his or her views
about the quality or characteristics of the reporting of the New York Times
or Time Magazine. That does not, however, translate into a right to identify
ones self as the New York Times or Time Magazine."
Jack Valentiinterview
-- January 2003 and an interesting
discussion of the interview by Derek Slater. (Note: DRM means Digital
Rights Management and P2P means Point to Point sharing networks like Kazaa.
)
DMCA and
Lexmark -- Is this an example of a frivolous use of copyright law?
Copyright
truce? -- Declan McCullough is not convinced that Hollywood and Silicon
Valley had made peace.
In his decision, Judge Jeremy Fogel wrote, "No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright .. . the Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold's copyright interest." See links from the 
