Prince of Fair Use

Can a painter/collage artist use copyrighted photographs in his works without permission of the photographer? In a closely-watched case, the Court of Appeals for the Second Circuit said in April that the answer is mostly a “yes.”

The case is important because of the desire and need in culture for artists to refer to other works and artists in order to express themselves — and to connect with the cultural references all around us in popular culture. It just so happens that much of that popular culture is protected by copyright (think of Mickey Mouse, Ansel Adams’ works, the movie Children of Paradise, The Great Gatsby, and so so much more). Seeking permission is time-consuming, sometimes expensive, and runs the risk of being turned down by the rights holder. Invoking the fair use defense is an appealing option – if it’s legal.

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The Next Great Copyright Act

Does the US Copyright Act need revision? Of course it does. It’s a truism but still true that copyright law always lags behind technology. It’s never been more relevant as it is right now. The pace of technology races onward and so much of it about how we access content such as music, images, text, and interactive entertainment. Maria A. Pallante, the Register of Copyrights, has rightfully called for Congress to turn its attention to this task, saying, “It is time for Congress to think about the next great copyright act.”

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Happy Birthday to You – Who Will Celebrate the Song’s Copyright?

The Guinness Book of World Records said that “Happy Birthday to You” is the most recognized English-language song. There’s no reason at all to doubt that claim. While “Somewhere Over the Rainbow” may be more beloved, there are fewer occasions to sing that song, and it’s a lot harder to sing it well.

In other words, the song “Happy Birthday to You” is part of everyday life. It would be surprising if friends and families celebrating a birthday didn’t sing it. It’s like the National Anthem before a ballgame, like saying “I love you” on Valentine’s Day, and like saying “good morning” in the morning.

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Who’s Afraid of Fair Use? Is Fair Use a Right and Not a Defense Any More?

There’s a point in evolution when you can say that over evolutionary time Something Big has happened — or even mutated into something dramatic. I believe this week is one such time.

Pretty much any copying, distribution, public performance, or derivation of a copyrighted work (a book, an photo, a motion picture, a song, a website, etc.) without authorization of the copyright holder is copyright infringement. (I say “pretty much,” because some copying is so trivial that’s it is de minimis and doesn’t need a fair use defense. There are also a few specific exemptions from absolute copyright protection with respect to certain photocopying by libraries and for other special situations.) Dominion over a copyright is what a copyright holder gets – a near monopoly over the right to copy. To say it another way, the word “copyright” means it just the way it sounds.

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Fifty Shades of Grey and Fan Fiction: Do You Own Your User-Generated Content?

The book series Fifty Shades of Grey and social media user “terms of service” might not seem to naturally intersect. After all, one is about being bound to obligations. The other is a website agreement. The wildly popular Fifty Shades of Grey series written by E L James has provoked many different reactions. One of the effects is a recent copyright and trademark infringement lawsuit.

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The Copyright Adventures of Sherlock Holmes

Is copyright a greater foe to Sherlock Holmes than Moriarity? The answer depends on what a court says – and whether you think that the duration of copyright protection in the United States is too lengthy.

In the United States the current duration of copyright protection is generally the life of the author plus 70 years (with some notable exceptions). Many older works, generally speaking those works published before January 1, 1923, are in the public domain, which means anyone can copy, publish, and modify them without restriction in the United States.

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A Copyright Alert about a Copyright Alert: Internet Service Providers Undertake a New Program

It’s good to be an Internet Service Provider. While content owners worry about piracy and erosion of copyright, and thus revenue, ISP’s (the companies that provide us with Internet access) do not have substantial copyright worries. They are considered, in effect, common carriers and as a result are generally no more liable for copyright infringement by its customers than the telephone company would be liable if you slander someone during a phone call. The concern is the copyright misbehavior of ISP customers, namely people like us.

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A Big Question About the Future of the Book Publishing Business: Who Sets the Price of eBooks?

Book publishers have always set the suggested list price of printed books. Bookstores were free to sell the books to customers like us at any price. In days that seem ancient now, mega-bookstore chains like Barnes & Noble, Walden, and Borders engaged in deep discounting. Many independent bookstores couldn’t compete and they went out of business.

Like any traditional content-based business encountering digital distribution, publishers tried to cling to their old ways. Please refer to the history of the music business over the past decade for how that view of the world worked out.

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Facelifts, Celebrities, and Copyrights

Celebrity-focused websites are wildly popular. Websites are incredible vacuum cleaners of content. Photographs are easy to copy and publish without authorization. You get the picture: photographs are easy to steal. Photographers are truly challenged in making money from the licensing of their images because of this combination of forces.

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