Joe Merante's Blog

The Second Circuit recently published its decision in Cariou v. Prince , a case involving appropriation artist Richard Prince's use of photos from photographer Patrick Cariou's book Yes Rasta . Both the art and copyright communities were watching closely, with the decision having potential implications on everyone in the art food chain (collector and gallery owner Larry Gagosian is also a defendant), technology companies and others. An analysis of some of the amicus briefs can be found here . OK, let's draw some lines. Consider whether you think Prince's Graduation (right) should be considered a fair use of Cariou's original: Now, how about James Brown Disco Ball , which takes from multiple Cariou photographs among other places: After a detailed description of Cariou's and Prince's works, the court begins its discussion of fair use and rejects the District Court's rule: "The law imposes no requirement that a work comment on the original o...

Earlier today, Carl Malamud tweeted a link to a fascinating paper about the evolution and reasons for Gandhi's prescient views and use of copyright law during his life. The combination of historical narrative, interdisciplinary research and discussion, and copyright was enough to take over the start of my Sunday afternoon. Read the abstract and download the full paper by Professor Shyamkrishna Balganesh here . The paper traces Gandhi's views during his most prolific writing periods, and anchors its analysis with examples showing three key phases: personal rejection [of copyright], reluctant engagement and strategic deployment. The first phase largely coincides with Gandhi's rejection of utilitarian philosophy primarily out of concern that minority voices would be drowned out or ignored, along with other reasons. The second is illustrated by the example of granting US and UK rights to a publisher for an autobiographical work, which Gandhi perceived as an appropriate compr...

This post on Techdirt caught my attention this morning for a few reasons. The article outlines the contours of recent debates about "intellectual disobedience," a term used in this video by Nina Paley to combine 'intellectual property' and 'civil disobedience' into an unapologetic stance on copyright infringement for the sake of one's art. While today's copyright laws are certainly in need of more user-friendly reforms (for author and non-author users), I'm not quite ready to go down the abolitionist path that "intellectual disobedience" leads to. The occasional intellectually disobedient use of a work might not be covered by parody, satire, fair use or other (affirmative) defense but such edge cases are a necessary means for courts to (attempt to) clarify a law Congress isn't ready to reform. Taken to its extreme, "intellectually disobedient" use of others' work would be a free-for-all, devoid of even the possibility ...

I haven't posted about copyright in a while, and opportunity knocked via this morning's email newsletter from the Copyright Office. The office issued a policy statement about its examination of compilations, particularly claims of authorship in selection and arrangement of uncopyrightable material . I found it interesting for a number of reasons, primarily because of its potential deterrent effect on spurious copyright registrations in compilations of non-copyrightable facts or ideas. Below is mostly a summary with a few comments tossed in. The statement begins with a textual analysis of the Copyright Act, beginning with the definition of "compilation" found in §101: A ‘‘compilation’’ is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. After a brief look at Feist , they cut right to the chase: H...

Yesterday, I attended a mini hackathon at PLoS in San Francisco to discuss strategies and work on tools to encourage the adoption of open access and shared content policies at research universities, publishers and elsewhere. We hope the event will be the first of many and plan to hold a larger, multi-day event in late June. While some focus on open access to scientific research, it's really part of the broader movement toward opening our entire culture, whether viewed through the lens of OER , Creative Commons , open source software or shared open data. Similar issues are back on the table in Congress with the re-introduced Federal Research Public Access Act (FRPAA), a bill that would require that taxpayer-funded research is made available to the public, similar to the NIH Public Access Policy . A competing bill in the House aimed at scrapping the NIH policy (to protect publisher's interests) led to a boycott of academic publisher Elsevier . The Right to Research Coalition i...

I've been thinking a lot about photographer Jay Maisel's recent legal tussle with chiptune album Kind of Bloop 's producer Andy Baio, documented in a post by Mr. Baio here .  The "chip" refers to the use or emulation of old computer or video game hardware to produce the jaggedly beautiful tones found in older video games, such as those on the 8-bit NES.  Kind of Bloop is a chiptune tribute to Miles Davis' iconic album Kind of Blue for which Baio licensed the music but failed to seek permission to use a pixelated, 8-bit version of Maisel's cover photograph. Compare Maisel's original photograph (left) with Baio's version (right) The basic issue is whether Baio's use qualifies as a fair use of the original rather than a derivative work for which advance permission would be necessary.  While I find the decision to go after Baio slightly offensive to the spirit of the music that helped propel Mr. Maisel’s career and see a stronger case in favo...

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...

PatentlyO, the leading patent law analysis site, offers a summary of a recent 8th Circuit case about the contours of the public domain.  Basically, a group of companies (AVELA) took images from public domain promotional movie posters of the Wizard of Oz and licensed them to various manufacturers of t-shirts and other novelty items.  Warner Brothers (WB) claimed that their (derivative work) copyright in the film's depiction of the characters is infringed by AVELA's use of the public domain posters depicting those same characters.  There are other works involved, and plenty of nitty gritty copyright geekery.  If you find cases like Stewart v. Abend (the Rear Window case) interesting, read on or check out the briefs .  As PatentlyO summarizes: "On summary judgment, the Missouri-based district court agreed that the defendant had not copied any images from the films, but still held that the defendant was liable for infringing the film copyrights."  ...

The Main Event Last night I attended a great event at Cardozo Law School titled Our Bizarre System For Proving Copyright Infringement , also the name of Professor Mark Lemley’s paper which the four distinguished panelists, including Lemley, discussed.  Thanks to the school and panelists for hosting a very interesting and informative event.  Each panelist provided commentary on the paper before a few audience questions, followed by a reception where I once again had the opportunity to engage in a spirited discussion of the merits of Creative Commons licensing ( round one here ).  In other words, arguing with old ladies. Professor Lemley began by providing an excellent summary of the existing standards and the slight variations by circuit in the test for proving copyright infringement.  Two formulations of essentially the same procedure are followed to determine whether there is substantial similarity between two works, resulting in infringement.  Arnstein v. ...

I’m a lifelong musician and supporter of the arts, online and off.  Music led me to study copyright, which led me to study technology.  The three don’t always play nicely together as anyone who hasn’t had their head completely in the sand for the past fifteen years would acknowledge.  Recently, I attended an alumni event hosted by my undergraduate alma mater, Berklee College of Music.  I spent most of my night discussing copyright law with a fellow alum who works at a rights organization.  I mentioned my legal interests and inevitably we wound up discussing the role of Creative Commons (CC) in the current online ecosystem.  Once he said something along the lines of “Creative Commons is just an arm of Google, and has all the tech companies do their dirty work,” I knew this would be an interesting night.  The rights organizations have an essential role to play, I simply disagree with their litigation choices in a few recent matters and think there are...