Saturday, April 23, 2011

Authors, Standing and Berne

The blogosphere has been abuzz with discussion of the antics of Righthaven, a company that contracted with a Las Vegas newspaper to sue bloggers and others over allegedly infringed copyrights and split the payments 50-50.  The most recent turn of events involves the unsealing of Righthaven’s contract with Stephens Media, the parent company of the Las Vegas Review-Journal, describing the above agreement.  Stephens has not actually assigned the copyrights, they have merely assigned accrued causes of action.  Under Silvers v. Sony Pictures Entertainment, Inc., 402 F. 3d 881 (9th Cir. 2005), this is clearly impermissible.  Thus, much-anticipated fair use considerations in the case may never be reached since it will (likely) get booted first.

After reading Silvers, a few things struck me.  Nancy Silvers wrote a script as a work-for-hire for Frank & Bob Films.  Later, when Sony allegedly infringed the copyright, the company executed an “Assignment of Claims and Causes of Action” in favor of Silvers, who then sued Sony, which moved to dismiss on the basis that Silvers had no standing.

Section 501(b) of the Copyright Act states:
The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. (emphasis added)
Relying on the doctrine of expressio unius est exclusio alterius, the majority found that “Congress' explicit listing of who may sue for copyright infringement should be understood as an exclusion of others from suing for infringement.”  Thus, one cannot assign merely the right to sue, although an assignment of copyright plus an assignment of accrued causes of action appears to be valid.

The majority continues, “In other words, Congress wanted to ensure that an owner of any exclusive right in the copyright was entitled to bring a suit for infringement.  Congress foresaw a permissible division of exclusive rights; the owner of any one of those exclusive rights may sue, with other owners being entitled to notice and joinder.  In this sense, Congress intended to "unbundle" the exclusive rights.” (emphasis in original)

Interestingly, the case doesn’t discuss who might qualify as a “beneficial owner,” beyond citing oft-repeated legislative history: "A 'beneficial owner' for this purpose would include, for example, an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees."  H.R.Rep. No. 94-1476, at 159, reprinted in 1976 U.S.C.C.A.N. at 5775.   A quick Google Scholar hunt didn’t reveal much more on this point, except a handful of examples in line with this definition.  Cortner v. Israel quotes this language and provides some further explanation about how the 1976 Act codified the 1909 Act’s case law with respect to standing.

Getting back to Silvers, Judge Berzon’s dissent, one of two in this 7-4 case, makes a strong argument that the plaintiff, as original author, should be able to pursue the claims assigned to her by the copyright owner and that a “stranger to the creative process” could not bring such a claim.  I am tempted to agree with this conclusion, but not entirely for the reasons Judge Berzon articulates.  For example, Berzon points out the majority’s inconsistent approach in recognizing that an assignee who purchases a copyright (right) may pursue claims that accrued before their purchase provided that those accrued claims are also transferred.  However, the majority’s response to this point makes sense too.  If one is acquiring ownership, one presumably wants all that comes with ownership, including the ability to sue for past claims.  I'm not sure that either interpretation squares with the text of Section 501(b), which states that the owner may sue for infringement that occurred "while he or she is the owner of it."

Part Three of Berzon’s dissent seems to get the issue close to right.  There, she discusses the “traditional contours of copyright” and concludes that Silvers, as author, maintained an interest in how her work is used despite initially creating it as a work-for-hire because this outcome comports with Congress’ intent in enacting the 1976 Act.  Berzon continues, “More importantly, Silvers, as the creator, is the person for whom the copyright system is designed to provide incentives for more creations.”  Sounds about right.   However, Berzon does not mention is the B-word: the Berne Convention.

While looking into this issue, I found a Pace Law Review article by Wenjie Lie that draws a number of conclusions in favor of granting standing to assignees of bare rights to sue.  Part IV of the article begins with an exposition of the general goals of copyright before stating that an author’s moral rights should suffice to confer standing, irrespective of copyright ownership.  Article 6bis of the Berne Convention codifies the moral rights of integrity and attribution, which barely squeaks into U.S. law by way of the Visual Artists Rights Act.  Some courts, however, extend common law rights to create moral rights-ish protections.   In any event, I agree that we would get back to the real purposes of copyright and fall in better line with the Berne Convention by allowing an assignee of an accrued copyright infringement claim who is also the author to sue for infringement.

For more coverage of the Righthaven circus, see view the Citizen Media Law Project entry and (not to be confused with

Sunday, April 10, 2011

Raging Bitches in Michigan

Update July 2012: Although the agency later reversed its decision, Flying Dog still pursued the case and has now lost in Michigan District Court. The brewery plans to appeal. I'll post the decision if I come across a copy.

According to a complaint filed by the Flying Dog Brewery against the Michigan Liquor Control Commission, the Commission has prevented the brewery from selling their popular Raging Bitch Twentieth Anniversary Belgian-Style India Pale Ale in Michigan, now the company's top selling beer.  The complaint details the history of the brewery and how its founder's relationship with artist Ralph Steadman has contributed the creative naming and label designs in the "Gonzo" spirit.  Even if the beer weren't so delicious, I'd still feel the same way about the case.

In late 2009 and affirmed in the summer of 2010, the Commission refused to approve the brewery's Raging Bitch label:
The Commission finds that the proposed label which includes the brand name “Raging Bitch” contains such language deemed detrimental to the health, safety, or welfare of the general public.
Health?  It provides the required federal info and is not misleading-- it lists the ABV, and there's the familiar GOVERNMENT WARNING about not drinking while pregnant or operating heavy machinery.  Yea, those seem like pretty reasonable requirements to impose on brewers.  As the complaint mentions, beer labels must comply with federal malt beverage labeling regulations in addition to state law, but that's not an issue here.  On an unrelated note, I've always found it interesting that ingredients don't have to be listed on beer.  Of course, I'd only expect certain ingredients to begin with, tend to research it if I'm interested, and understand some companies' desires for trade secrecy.  Flying Dog is one of many craft brewers that address this curiosity by listing each beer's ingredients on its web site.  Check out the Raging Bitch's ingredients here.  The company is even taking things a step further with their recently revived Open Source Beer Project, where homebrewers and fans can provide feedback on a beer recipe that the company will brew.  Awesome. 

Safety?  That one doesn't even require discussion.  And then there's the bureaucrat's favorite: welfare.  Do you need the government to protect your health, safety or welfare from this label?

If a state or its agencies can prohibit this (commercial) art, then what else would be off-limits?  The artwork is no worse than many things you'd find on a newstand, let alone a bookstore, and we all know the government has no place there (other than barring sales of certain materials to minors and totally obscene stuff that most stores don't carry; of course, minors can't buy booze to begin with).  I'm not sure what business a liquor commission has regulating speech that is not misleading or deceptive.  Beyond ensuring the identity and purity of products, compliance with health-related disclosures, licensing and import/export administrivia, etc., patronizing the general public by protecting them from the word "bitch" is certainly not within the purview of a state liquor commission.  Is "bitch" still considered such a dirty word?  Here, it's even being used accurately-- a female dog is, after all, a bitch.  In addition to a drawing of a female dog, the label contains the following description:
“Two inflammatory words ... one wild drink. Nectar imprisoned in a bottle. Let it out. It is cruel to keep a wild animal locked up. Uncap it. Release it .... stand back!! Wallow in its golden glow in a glass beneath a white foaming head. Remember, enjoying a RAGING BITCH, unleashed, untamed, unbridled—and in heat—is pure GONZO!! It has taken 20 years to get from there to here. Enjoy!” – Ralph Steadman
It's really disappointing to see a creative and high quality brand have to deal with barely explained, subjective administrative decisions such as these.  Even more puzzling is one commissioner's acknowledgment of Gonzo journalism and not being personally averse to "having or reading edgy writing."  Still, the commission affirmed their earlier rejection of the label based on a nebulous "responsibility here to place product in a public place with the names that are on it..."  Under Michigan law, the commission reserves the right to reject any label "that is deemed to promote violence, racism, sexism, intemperance, or intoxication or to be detrimental to the health, safety, or welfare of the general public.”  I think they'd have a better shot calling the label sexist, although I'm sure even the commissioners saw the ridiculousness of that position.  It's pretty telling that none of the other states where Flying Dog is sold rejected the label (Flying Dog is available in 45 states, though I couldn't find specifics on just the Raging Bitch).  While they're at it, maybe the commissioners in Michigan should require the brewery web site to change the truthfully ambiguous menu labeled "Good Beer, No shit." Good luck with that.

A 1998 Second Circuit case provides a sneak peek at how the District Court in Michigan will hopefully get rid of this unnecessary case.  There, the court found that Bad Frog Brewery's label depicting a frog giving the middle finger was protected as commercial speech under the Supreme Court's Central Hudson test and the state liquor authority exceeded its authority by rejecting the label in the interests of temperance and protecting children from advertisements that allegedly promoted underage drinking.  Although the same child-protective arguments weren't put forth by the commission here (at least not yet), the Commissioners have their task ahead of them.  Advancing broad public policy arguments about protecting children would likely fail later in the litigation as they do in many other free speech cases, especially since there are typically other less restrictive alternatives available to regulators.  Flying Dog claims that the regulation is invalid on its face as a prior restraint on speech, inherently vague (definitely!) and ambiguous on its face, and is invalid as applied.  Sounds about right to me. 

Alright, time for a Raging Bitch.  (I'm serious.)

Thanks to my friend Marc for the tip about the case.