Monica Pa’s “Copyright in the Digital Era” presentation:
How not to infringe a copyright: a defense can be that you took the idea of the work, not the work itself. De minimis use is not a protection. Think you’re okay to use just a few seconds from a rap song. “We’ll kill you,” she says.
Ludacris case. Hip Hop group said he had stolen a hook from their song. There was no substantial similarity. She plays the two clips for us. A musicologist said the call-and-response structure is very common. They won the case, defending Ludacris.
Can you copyright a website? Yes. Beyonce does not own the Myspace Music banner on her Myspace page. It’s copyrightable by Myspace. Person who put together website has copyright on the site. If you have one done, make sure you have the copyright. Get copyright from the photographer. All the elements of a website have different aspects of copyright.
How do I register my copyright? Submit an online application to the copyright office . For works created after January 1, 1978, protection lasts for life of the author plus 70 years.
If you want permission to use someone’s work, ask for it. For photo of Bob Hope, you could call publication that included it.
Fair Use Doctrine: okay to use limited portion of work for commentary, criticism, news reporting, and scholarly reports. News report of a concert can show some of it, because “America loves the news.” Other exceptions for libraries, universities. 2 Live Crew song parody of “Pretty Woman” was okay under fair use, court said. But after that, in a lot of sampling cases it’s an automatic copyright infringement, with damages and attorney fees. Now every single second of music must be cleared. There are no legal rules on permitting a certain number of words, an eyeball in an image. Courts consider following in “fair use” cases: Purpose and character of the use – commercially motivated or nonprofit educational purpose; nature of copyrighted work.
Jeff Koons get sued all the time. “We love him,” she says. Sued by a photographer. Koons argues that he was inspired by the photograph of feet of a woman. He wins for the first time in his long legal career. Signals a sea change at the 2nd Circuit, which handles most of copyright cases. Koons admits there is copyright infringement. The question is the defenses. Copyright owner has exclusive right to derivative work.
It occurs to me that live blogging an attorney whose job is to sue people for copyright infringement may be problematic. I’ll ask her permission at the end of session before posting this.
Digital Millennium Copyright Act. She litigated on behalf of Scholastic when last Harry Potter book got leaked on the Internet. “You heard about this law firm sending out cease and desist orders? That was me.” Someone had scanned page by page the book. “There’s a lot of crazy Muggles out there that rushed to download it.” It was blatant copyright infringement. Sent take down notice to the web sites notifying them of infringement. Take it down or we will go to the ends of the earth, criminal laws, we will deport you, everything… It was taken down. DCMA safe harbor provides for clear removal process for alleged copyright infringement. User can give counternotice then ISP has to decide what to do.
Perfect 10, inc. v. Amazon.com . Court said it’s important to have thumbnails and Google. Using “perfect 10” to search for beautiful women was declared fair use.
Visual Artists Rights Act (VARA). Under certain conditions, such as that the artist is of “recognized stature,” protects work of art even if artist sells the work. Protects against destruction of the work, insulting uses of the work. It’s a moral right, not a property right. The artist will be destroyed as a human being if the work is harmed. Act prevents use of one’s name on any work the author did not create. David Phillips v. Pembroke Real Estate. Some courts have not been enforcing VARA. Probably won’t be expanded into digital art.
Right of Publicity. Say you want to make art that makes fun of Beatles. All states have different laws on publicity. Does not protect a deceased artist usually, except California, which just changed it so deceased artists ARE protected. Let’s say you have a t-shirt with photo of Marilyn Monroe. Same for a web site. Estate said it’s not okay to use her image without consent. Photographer said he gets to market photograph. It’s not copyright or trademark. Marilyn’s estate lost the case. Would have won the case now, with new California law.
A guy running for sheriff changed his name to Andy Griffith. Andy sued. You’re stealing my publicity to win an election. Court said no, no one is confused that this guy is Andy Griffith or that Andy is backing him.
Right of Privacy. Right to be left alone. Don’t put naked photo of your friend online. Girls Gone Wild was sued for privacy rights. Court said no right of privacy. What’s more public than flashing everyone. If you think it’s okay to get on top of a truck and take your shirt, there’s not protection. If you did it in your home, that would be protected. Celebrities don’t have this right.
In answer to my question about using her photo for this blog entry, she says, it’s a copyright infringement if no permission granted, might be covered by fair use because this is an educational institution. But nothing certain. “It’s a photo of me with my shirt on?” she asks. Yes. With that, I’ll go ahead and publish this post…
It’s always better to use swear words and insane opinions because you’ll be covered under the First Amendment, a whole different subject.
Wow. This was a terrific presentation. Bottom line is that copyright infringement is everywhere, and it’s probably good to know some of the details. Whether any particular instance gets prosecuted by a lawyer as talented as Monica Pa, Esq., is another matter.