With the rise of Twitter it was inevitable that intellectual property issues would surface regarding “tweets” (information snippets under 140 characters in length).
Some are concerned that copyright might stifle the ability to reproduce tweets for collaborative projects. Twitter itself states, “We claim no intellectual property rights over the material you provide. Your profile and materials uploaded remain yours.”
Here is the result of my own search:
A student in my Entrepreneurship class recently made me aware of the site: “Let me Google that for you” .com (LMGTFY).
As the name of LMGTFY implies, the site shows you how to search Google if you follow the simple steps listed on the site. I showed the website in class, and one student immediately thought it was a joke. “That’s not so unique” was one comment. “Why not get rid of the middleman and go straight to Google?” another student asked.
As it turns out, the website is dedicated “to all those people that find it more convenient to bother you with their question rather than google it for themselves.” So, if you receive an annoying question, rather than ignore the person or say something nasty, you can send them to LMGTFY and hope they get the message not to bother you again.
The website raises some intellectual property issues, however. I asked the class if they would be willing to invest in this company. The site apparently is trying to raise advertising revenues and claims to have a “steady stream of traffic made up primarily of affluent 30-somethings.” They also claim to have received 1.25 million visitors in February. One student said he would not invest because Google would be able to “shut them down fairly quickly”.
Under what grounds? First, there is the possible trademark issue since the Google trademark and logo are used on the site. Also, the Google website is secured under copyright.
Robert Smith, lead singer of The Cure, has recently gained a lot of attention by publicly criticizing the growing “art for free” movement.
Here is what Smith says on his site, speaking about Radiohead’s decision to release their In Rainbows album under a donation pricing model:
“ANY FAMOUS ARTIST WITH A HUGE AND DEVOTED FAN BASE(OFTEN ARRIVED AT WITH A LITTLE HELP FROM A WEALTHY AND POWERFUL ‘PATRON’ ORTWO?) CAN AFFORD TO DO WHAT HE, SHE OR IT WANTS… INCLUDING GIVING THEIR ART AWAY AS SOME KIND OF ‘LOSSLEADER’ TO HELP ‘BUILD THE BRAND”
The follks over at TechDirt, however, argue that Smith misses the point. Smith is criticizing the general rule that all art should be free, claiming such a rule or social norm is not beneficial to artists, and is more damaging to those who are not famous. The folks at TechDirt, on the other hand, claim that the point of the “art for free” movement is about business, and that giving some art for free allows artists to share some of the value of art and charge money for related complimentary products or services.
Which viewpoint do you think is the right one?
The New York Times recently reported a story on the singer and composer Leonard Cohen’s upcoming tour, after a 15-year hiatus from live music performances.
Here is one of Mr. Cohen’s quotes that most grabbed my attention (he is speaking about the ownership of his songs, which have been popularized by other, younger performers):
“My sense of ownership with these things is very weak,” he responded. “It’s not the result of spiritual discipline; it’s always been that way. My sense of proprietorship has been so weak that actually I didn’t pay attention and I lost the copyrights on a lot of the songs.”
When I mentioned this story to C.E. Hanifin, the acclaimed journalist and music critic, she said: “If Leonard Cohen can’t keep track of his copyrights, I’m sure there are a lot of other artists who need help, too.”
Even if you don’t own a Leonard Cohen album, you are probably familiar with some of his songs. As the New York Times article pointed out, many popular artists have covered his works. For example, Cohen’s song “Hallelujah” has been covered more than 200 times by such artists as Jeff Buckley and John Cale.
How different from other artists (like The Beatles) who zealously guard their intellectual property.
So, how does one lose a copyright?
There are several ways. First, you can neglect to read a contract from, say, a manager or corporation like a media company who gets you to assign your creative content rights to them. Along similar lines, you can sell the rights. Or, you can donate them to the commons through a public release, or creative commons-like license. Be wary, since once that copyright is gone it is usually very hard to get back.
Regardless of whether an artist decides to defend or give up their copyrights, every creative person should at least know the basic rules so that they can choose which path to take.
Acknowledgements: C.E. Hanifin.
I recently sent a call to readers asking for stories to blog about. Mr. Joe Scarry from Chicago kindly sent me a recent article in the New York Times Magazine profiling the curious rise of the Fail Whale.
The Fail Whale image was created by Ms. Yiying Lu. Ms. Lu initially created the image to send as an e-card to a friend. Eventually, she uploaded the image to iStockPhoto. Under the iStockPhoto image license terms, the image was made available for a few dollars under a perpetual license.
Things unfolded when Mr. Biz Stone, one of Twitter’s founders, purchased an iStockPhoto license of the whale image. Mr. Stone used the image so it would appear on Twitter whenever that site experienced an outage due to heavy traffic (a smart branding move in my opinion since the image is funny, unexpected and connotes teamwork). The Twitter community quickly grew fond the whale image. One of the fans named the image the “Fail Whale”. Another fan tracked down Ms. Lu and her online fame only grew from then.
There is now a Fail Whale fan club, Flickr site and community art site. In true Web 2.0 spirit, the Fail Whale image has become part of a community’s culture. The community owns the image, freely adapting the image in new ways. It was a community member who first named it the Fail Whale. Many of the community websites use the Fail Whale term without worries about ownership. Here is what the Fail Whale fan site says about itself:
“This site is here to poke fun at the people who seem to take online social network downtime a little too seriously. Failwhale.com is not affiliated with Twitter. Rather, it’s a love letter to the hard working folks at all of our favorite online social networking sites who lose sleep over the concept of scalability.”
The community for all purposes owns the whale. Will that someday change since it has become valuable? Ms. Lu already took the image off the iStockPhoto site which allowed users to perpetually license the image for a low price. She has also recently created an official Fail Whale Merchandise Site. The next logical step to build a business around the Fail Whale is to apply for a trademark, and then license the trademarks for merchandising. (Note: a copyright can eventually become a trademark if it identifies a source of goods).
Will the Fail Whale remain open for the community’s free use? Would that be the best thing? Or, will it be Generation Y’s version of Micky Mouse or Hello Kitty? The next time you see the Fail Whale look closely. You just might see a small round trademark symbol.
P.S. Have you lately come across an intellectual property controversy that piqued your interest? If so, please send it my way.
Artists borrow material to create new art. This practice is widely acknowledged and condoned in art circles. Daniel Grant makes this point in a recent Wall Street Journal article. Mr. Grant also points out, however, that copyright law can potentially render artistic borrowing an unlawful transgression. What is routine practice in the arts may lead to litigation and an intellectual property minefield.
Mr. Grant’s article discusses the Rogers v. Koons case. In that case the renowned artist Jeff Koons was sued by photographer Art Rogers. Mr. Koons made an unauthorized sculptural and literal rendition of a photograph taken by Mr. Rogers that depicted a family with eight puppies. A federal court found that the sculptural representation amounted to copyright infringement. Mr Koons unsuccessfully argued that creating the sculpture from the photograph was a transformative social commentary. This type of commentary, he argued, was an important artistic activity. It was a good argument, but not a legally persuasive one.
The Rogers v. Koons case was decided in 1992. Seventeen years later, a very similar case is now publicly unfolding. This case also involves an artist and a photographer. In this case, the artist is Shepard Fairey, who created the Obama Poster shown below from a photograph taken by photographer Mannie Garcia. Mr. Garcia, who is a freelance photographer, was working for the Associated Press at the time he took the photograph, shown below next to the poster image. Mr. Fairey based his image on the photograph without asking the Associated Press for permission. Now, Mr. Fairey has sued the Associated Press to have the copyright issue resolved.
The question, however, remains contested. How can one determine if their new work has unlawfully copied another work? How much borrowing is permitted? Prior cases, like Rogers v. Koons state that an original work is copied when “the accused work is so substantially similar to the copyrighted work that reasonable jurors could not differ on this issue.” That is a fuzzy boundary that is determined on a case-by-case basis.
So here’s my question:
A few weeks ago I was part of a panel on intellectual property controversies at Michigan Tech. One of the comments I made on the panel is that most intellectual property law innovations have been developed by regular people taking intellectual property law into their own hands. For example, Creative Commons, Science Commons and Open Source Software are all innovations created by information creators and users, not lawmakers on Capitol Hill or the judiciary.
A reader recently submitted the website: myfreecopyright.com, which I’ve dubbed the anti-creative commons. Like the legal innovations listed above, this is yet another resource that allows creators to engage their online i.p. and the law in a user-friendly way.
The difference, a big one, is that the myfreecopyright site allows you to notify others of your copyrighted content and allows you to register and date the work through their database. This is achieved in three steps: 1. Upload the work by allowing the site to subscribe to your content; 2. A digital fingerprint of the work is created; 3. The work is registered on the database.
Why go through this? Here is what the myfreecopyright site says:
“You should provide evidence of your Copyright on all public displays of your original creations so that nobody can claim they thought your creation was part of the public domain. The Public Domain consists of original creations available Copyright Free to the whole public. Copyright Infringers often claim the public domain defense, and can be let off the hook, if no public display was with your original creations defining your Copyright.”
What I find so interesting about this is that the Library of Congress is the official place for authors to register federal copyrights. Authors obtain copyright when they create the work in a tangible medium, but they can register it. Authors register their works to have the right to sue in federal court and obtain the high damages stipulated by federal laws. The myfreecopyright site does not register your copyrights in the Library of Congress, and does not help you locate and pursue infringers. It does (as mentioned above) put everyone on notice that you have claimed a copyright and have registered it in a public database, which hinders unauthorized users from claiming the public domain defense. This is another private technology solution to intellectual property law. In this way, it’s another example of how everyday folks are innovating and engaging their intellectual property, participating in what I call law 2.0
A reader sent me this New York Times article that explains Google’s book project, which recently had to settle copyright infringement lawsuits filed by authors. With the new Google service we will all have greater access to information, a lot of which is under copyright. However, the full service appears to be limited to subscribers. The loophole is that public libraries will have a terminal that allows visitors to access the database for free.
If you come across any interesting intellectual property controversies, please send them my way.
Techdirt does a nice job describing some of the problems currently facing artists and copyright. Basically, how can you artistically innovate without borrowing?
This is in response to a copyright-related story that recently popped up dealing with the iconic blue, white and red Obama campaign posters. As it turns out, the original image was a photograph taken by an Associated Press freelance photographer. The image was downloaded and altered by someone else to generate the iconic poster image. All this was done without getting the photographer or the A.P.’s permission, and in theory violating their copyright.