Posted by & filed under Copyright, Fair Use.

As a huge Star Wars fan, I was super excited when I saw this on YouTube: 

That’s right, Star Wars: The Animated Movie. Hand-drawn by Jeronimus Dekker with “a monk’s sense of concentrating and dedication”, this short film is a 6-minute summation of the first Star Wars movie, A New Hope. And it’s amazing. Each frame drips with creativity, skill, and an obvious affection for the source material.

Needless to say, I love it. 

However, since I work in Copyright, my first thought after watching the video was about fair use. It seems to me this film presents an interesting fair use example because it definitely should be fair use, but it isn’t certainly protected by the law. 

As you may know, our fair use statute doesn’t give us a list of instances when it’s ok to copy another person’s work. Instead, it tells us to look at 4 different factors, weigh the arguments for and against fair use, and decide on balance whether it’s ok to copy something or not. The upside of this statute is that it’s very flexible and doesn’t limit fair use to specific types of copies. The downside, however, is that this balancing test is often quite unclear, even to experts, and it can be hard to decide with 100% certainty when something is fair use. In turn, this can chill the creation of new works that use other works at all because of the fear of infringement. 

It should be obvious why this is important for something like Dekker’s video. While I’d argue that his work is exactly the type of thing that fair use should protect, there are definitely arguments against fair use, here. And it’s not hard to imagine Dekker never creating a work like this because he was worried about Lucasfilm’s reaction.  

To be clear, I don’t think Lucasfilm is likely to sue Dekker or have this video removed from YouTube. Indeed, since it’s still there, it seems likely that Lucasfilm is ok with the work. Instead, what I’m saying is this sort of work definitely should be fair use, and we shouldn’t have to worry about it. 

This situation reminds me of my favorite Star Wars fan creation — Star Wars: Uncut. In 2010 Casey Pugh set out on an ambitious art project. He divided A New Hope into 473 fifteen second pieces, and asked people on the internet to take a piece and remake it however they wanted to. This could be as animation, papercraft, live re-creation, sock puppets — whatever. It was entirely up to the creator. He then took all the pieces and reassembled them into a new version of A New Hope. 

The result is a fascinating piece of art that can only exist thanks both to modern technology and the power of our fair use statute. However, while it strikes me that this work has a stronger fair use claim than The Animated Movie, it’s still not a slam dunk for Pugh. Indeed, our fair use statute guarantees that there are always arguments against fair use, even in the best cases.

Thankfully, Lucasfilm embraced Pugh’s work, and even actively supported the creation of its sequel, The Empire Strikes Back: Uncut. Nevertheless, it’s not hard to imagine a different copyright holder being less friendly to a work like this and blocking its creation/distribution.

Ultimately, all I’m saying here is that I wish the law more clearly supported fan creations like these because they are  tremendously creative, original works, and I think the world is better with them in it. Indeed, the purpose of copyright is to encourage creators to make works and advance our culture, and this this is exactly what works like Star War: The Animated Movie, Star Wars: Uncut, and The Empire Strikes Back: Uncut all do. 



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Today, in this brief post, I want to point you to a story from the Electronic Frontier Foundation about a recent case from New York that could have serious implications for how we use images we find on services like Twitter.   

In this case, Goldman v. Breitbart, Justin Goldman claimed that news organizations like Breitbart, Yahoo, and the Boston Globe has improperly displayed his photo of Tom Brady. He took the photo, and posted it on Snapchat. Someone saw the photo, Tweeted it out, and then several companies like Brietbart, Yahoo, and The Boston Globe all embedded it into articles of their own. So Goldman sued, believing that his right under copyright to control the public display of his photo was infringed. However, when you embed something like this, you don’t actually copy the image to your own servers. As such, the Defendants argued that since they didn’t actually posses the photo — the embed, in a way, only points to the image on Twitter — they couldn’t infringe Goldman’s copyright. The court, however, ultimately rejected this argument and sided with Goldman. 

Unsurprisingly, the EFF does not agree with this decision. It notes that there is a history of cases that permits the kind of embedding that occurred in this case, most famously, Perfect 10 v. Amazon. While the Southern District of New York addressed this case, the EFF is unsatisfied with the distinction it drew. More problematically however, is that this kind of embedding is extremely common online and is generally considered ok. If it suddenly becomes copyright infringement to do this, the EFF worries that it could threaten many more people with copyright infringement. 

As with many cases, this one is probably not quite done, yet. So we’ll have to keep our eyes on it.

(For another look at this case, check out this post from the Hollywood Reporter.)

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Today’s blog post comes from a USA Today article about a copyright issue over American Airlines’s new logo. The airline recently ran into a bit of a snag when it tried to register its logo with the Copyright Office. So let’s take a quick look.

American Airlines adopted a new logo in 2013. As described by the article, “The logo looks like a white eagle’s head poking through a diagonal swoosh with blue on top and red on the bottom.” In 2016, the airline filed an application to register this work with the Copyright Office. The agency, however, rejected the registration, saying that the logo was not creative enough to have a copyright. 

As you may already know, artistic works need to meet three requirements to receive copyright protection. First, works must be “original.” This doesn’t mean works must be “new,” but instead they need to be the independent creations of their authors. That is, they can’t be copies. Second, works have to be “creative,” but only a little creative. And finally, works have to be “fixed,” meaning they have to be saved in some way. Purely ephemeral works do not receive copyright protection. 

Notably, these three requirements are very easy to reach, and most works do so. Still, they exist, and sometimes works don’t meet them. Turning to the creativity requirement, the U.S. Supreme Court looked at this in the famous case, Feist Publications v. Rural Telephone Service. The Court wrote that even “a modicum of creativity” is enough to satisfy this requirement. Still, some things just aren’t creative enough for copyright. Indeed, Feist held that a basic, alphabetical listing of telephone numbers wasn’t creative enough to receive protection. 

American Airlines found out first hand that you can’t ignore the creativity requirement when the Copyright Office rejected its registration application. So, the lesson is, while the copyright requirements may be minimal, we must pay attention to them; we can’t take copyright status for granted. 

But don’t be too sad for American Airlines. The company already registered the image as a trademark, so it has plenty of IP protection over its new logo. Nevertheless, this story is a good reminder that even a huge company like American Airlines is subject to the same requirements as the rest of us when it comes to copyright.  


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I’ve said for a while that I doubt Congress will undergo major Copyright legislation anytime in the near future. Tho our aging law certainly needs some serious updates, our Federal government has more pressing things to do than deal with Copyright right now. That said, there recently has been some movement in both the House of Representatives and the Senate on amending at least a few outdated parts of our law, and something may, in fact, happen in 2018. 

On December 21, 2017, representative Doug Collins, a Republican from Georgia, introduced H.R. 4706, the Music Modernization Act of 2017. About a month later, Orrin Hatch (R-UT) introduced a Senate version of the bill into his chamber of Congress as S. 2334. Both bills have been referred to their respective Judiciary committees, and we’re now waiting for the next steps. 

One significant thing these bills do is set up a new system for mechanical licenses of musical works. Under our current law, if someone wants to use a musical work — say, they want to create a cover of a song — they can obtain a “mechanical license” by giving notice and paying royalties to the copyright owner(s) of that musical work. The Music Modernization Act creates a new system for these licenses and sets up a new agency to manage them and their royalties.

This law will probably benefit rightsholders because it will ensure that they receive the royalties the are owed under the law. As such, it’s not surprising that groups like RIAA, BMI, and ASCAP all back it. Indeed, with support by large, powerful groups like these, it seems likely like some version of these bills legislation will pass. Of course, like many bills, it’s not clear exactly what will happen, tho, and it’s similarly not clear what the final version of the law will look like. 

Who knows what will happen, or even if it’s a good idea, but I’m happy to see that Congress has taken some interest in copyright reform, at least in part. Hopefully we’ll see more movement in this space, and eventually maybe the government will finally bring Copyright law up to date. Either way, the Music Modernization Act has a long way to go before it becomes law, if it even does, so we will keep our eyes on what happens. 

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One of the defining features of modern U.S. Copyright law is that it is very easy for works to receive copyright protection. Nearly any work that is recorded in some permanent form qualifies for copyright. However, even though it may be easy for a work to qualify, not everything does. In fact, some things aren’t creative enough to receive a copyright. Now, a recent story about copyright over recordings of white noise begs the question: when is something creative enough for copyright? 

As reported by the BBC, an Australian YouTube user, Sebastian Tomczak, posted a 10 hour long video of continuous white noise in 2015. Fast forward to January 4, 2018, when Tomczak received 5 adverse claims on his video from supposed copyright owners. Is this right? Can white noise really be copyrighted? Is it creative enough?

The U.S. Supreme Court looked at copyright’s creativity requirement in Feist Publication v. Rural Telephone Service, 499 U.S. 340 (1991). In this case, the Court wrote that works must have “at least some minimal degree of creativity” to qualify for copyright protection. Admittedly, this requirement is very small — the court says only “a modicum of creativity” is necessary. Still, even though it may be minimal, it certainly exists. Indeed, in Feist, the Court held that a mere alphabetical arrangement of names did not contain enough creativity for copyright protection. So, even though the amount required may be small, creativity is something we need to pay attention to. 

Sebastian Tomczak’s story clearly raises the creativity issue. Is a recording of white noise sufficiently creative to justify giving its creator a copyright monopoly over it? My gut reaction is “no way!” Isn’t it just fuzz? How is that creative at all? You can’t get a copyright just because you record the sound a radio makes when it can’t pick up a channel; That’s crazy talk!

But, let’s test my reaction. Perhaps I’m undervaluing the white noise recording because I don’t “get” it. For example, there is a Japanese artists who calls himself Merzbow who creates songs from feedback, distortion, and another noises that aren’t generally thought of as “music.” I may not enjoy his works, but that doesn’t mean they shouldn’t be protected by copyright.

Indeed, we need to remember that copyright doesn’t care about the quality of works. For instance, I own an album called Symphony #2 for Dot Matrix Printers which is comprised entirely of the clicking and clacking of old printers. I know only two people who enjoy it: me and my friend who introduced it to me. However, even though you may not like the music doesn’t mean it’s not a creative work. In fact, I’d argue it took an incredible degree of creativity to create such a unique piece of music.

Perhaps the white noise recording is similar. Perhaps it was specially crafted by the creator to achieve some sort of reaction in its listeners. Perhaps it’s creative in some way that I can’t see. And then perhaps it deserves copyright protection.

That said, we need to remember that copyright law also doesn’t care how much effort went into creating something. In Feist, the Court rejected the “sweat of the brow” doctrine that holds that “copyright was a reward for the hard work” of creating something. Instead, copyright rewards original creative works, no matter how hard it is to create them. 

I think this is particularly relevant when looking at whether a white noise recording should have copyright protection. I think this question requires us to ask how they were made. Did the creator craft the white noise in some way? Did he/she do so to elicit a response in the listener? If so, perhaps this is a creative work. Or is the noise computer generated? Did the creator simply record mechanical feedback? If so, this doesn’t seem creative enough for copyright. Or, did it take a lot of work to create this recording, but it’s not creative at all. If so, then it doesn’t seem to be enough for copyright.  

If I had to guess, I’d still say that this white noise copyright claim is no good. I’d guess this recording was not specially crafted to be creative in some way. Indeed, I think it would be hard to prove that it is, in fact, creative, and not just the product of hard work. However, we need to remember that it may be possible for noise art to be creative. And in that, a white noise recording may deserve copyright protection.

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Last week, I wrote about a case involving How the Grinch Stole Christmas and a parody play that follows Cindy Loo Who later in life. Now a new post at the Trademark and Copyright Law blog reminded me of an important issue about fair use that I should address. That is, what is the difference between parody and satire?

People often think about parody and satire as almost the same thing, but legally speaking they are quite different. The Supreme Court looked at this difference in the copyright  context in the case Campbell v. Acuff Rose Music. Campbell deals with a comedic version of the Roy Orbison song, Oh Pretty Woman. In 1989, the infamous and influential rap group, 2 Live Crew, recorded a parody of Orbison’s song for their album As Clean as the Wanna Be, simply called Pretty Woman. In it, they copied parts of both the music and lyrics of the original.  So, Acuff Rose sued, claiming copyright infringement. 

In its decision, the Court drew a line between parody and satire. It wrote that “parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Moreover, parody must comment on the original in some way. Satire, on the other hand, does not. Instead, it’s commentary may be more general, or it may targeted at something other than the original work. 

Ultimately the Court found that Pretty Woman is, in fact, a fair use. Importantly, the Court held that parody is not presumptively fair use. Instead, you must conduct a fair use balancing testing every single time we look at whether a use is fair or not. 

Still, it’s probably fair to say that we’re more likely to find fair use with parodies than with satires. We can see this from how the Court defines the two terms. Parodies needs the originals; they can’t exist with the original works because the parody specifically uses and comments on them. In this, it furthers the purpose of copyright, to support the progress of the creative arts. Copyright wants to allow people to comment on works, and to build on them in ways that do not usurp the works. Parodies can exist in the market at the same time as the works they use. One does not merely use the other to exploit its popularity. 

Satires that use other works as their bases, on the other hand, do not need the originals to do their satire. The could conduct their commentary without the original, because that commentary don’t target the originals. In this, satires may look like they are trying to trade on the popularity of the original works, instead of going through the effort of creating wholly original works themselves. Copyright protects against people profiting off of the works of others. 

In the end, all fair use analyses are gray, and even the strongest case for fair use has things that weigh against it. Whatever the case, Who’s Holiday is still fair use. 


Posted by & filed under Copyright, Uncategorised.

One of my favorite things about the holiday season is my annual viewing of How the Grinch Stole Christmas. Thurl Ravenscroft’s  voice on You’re a Mean One, Mr. Grinchcombined with Dr. Seuss’s lyrics, makes it an all time classic, and not just great for Christmas music. So, when I read about a recent copyright lawsuit over a play set as a parody follow-up to the Dr. Seuss classic, I immediately wanted to write a blog post about it.

Playwright Matthew Lombardo grew up as much of a fan of How the Grinch Stole Christmas as I am. But instead of just watching, he decided to write a play about Cindy Lou Who, and what she would have been like in later life. Unfortunately, however, the Seuss estate was none too happy with the play, and tried to stop it by claiming copyright infringement. 

But when I sat down to blog about the case and Lombardo’s eventual victory by fair use, I noticed a new post at the excellent website, Plagiarism Today, that does the job better than I ever could. Jonathan Bailey summarizes the whole case in a Seussian-style poem! Check it out; it’s worth every second of your time.

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One common argument you’ll hear for open scholarship  is that by loosening copyright restrictions on scholarly works, we can in turn increase their impact. The argument here is pretty straightforward: if you make scholarly works more easily available, then people are more likely to use them in their own work. However, there hasn’t been much scholarship on the social and economic impact of making copyright regulations more open. So Sean Flynn and Michael Palmedo from American University set out to study this question. 

In their paper, The User Rights Database: Measuring the Impact of Copyright Balance, Flynn and Palmedo look at two common hypotheses you’ll hear in discussions about copyright and openness: 1. “more openness in copyright user rights may drive innovation and growth in the technology sector”; and 2. “user rights that are more open may create larger stockpiles of inputs for creators, leading to more local production of works of creativity.”  

Because of the lack of empirical studies about openness in world copyright laws and how a change toward more or less openness affects growth in the tech sector and productivity in the creative sectors, Flynn and Palmedo created a database of how different countries approach fair use/fair dealing, and how those approaches have changed over time. 

Ultimately they find three things: 1. That more open user rights correlate with higher revenues in tech companies; 2. That more open user rights do not harm publishing and entertainment industries; 3. Researchers in countries with more open user rights produce more and better work. Additionally they find that there is a trend toward more openness, but less developed counties are about 30 years behind more developed countries.

This is an interesting study, for sure, but I want to think more about it before I feel completely comfortable with its findings. Right now, two things give me pause. First, I wonder if the way in which they define “more openness” happens to be associated with countries that already have a greater amount of production from the tech and entertainment/publishing industries. They define open fair use/fair dealing laws by looking at three factors: 1. “Openness: the user right can be applied to an open, as opposed to a defined (aka closed), list of purposes, uses, works or users”; 2. “Flexibility: the user right is applied through a flexible proportionality test that balances the interests of the rights holder with those of the user and general public”; 3. “Generality: the exception promotes uniform application by applying a single flexible test to a group of multiple uses or purposes.” I think, considering these three factors, that the most open country is probably the United States. And of course, some of the world’s most profitable tech and entertainment companies are based in the United States. But is this because of our “open” fair use law, or is it despite our “open” fair use law? Which came first, the chicken or the egg? I’m not sure the paper adequately deals with this question.  

Second, the paper only looks at the laws themselves, not how courts apply them. In the United States, for instance, the law is written very broadly, but I’m not sure it’s treated as broadly as its written. For instance, we at UNT probably don’t use fair use as much as we could, because we don’t want to risk copyright problems, even if the likelihood of being legally safe is greater than 50%. Of course, the less clear the fair use question is, the more likely it is for us not to risk copyright infringement.

Or, what if the US were a fair dealing country? Unlike fair use, which balances a number of factors to determine whether some use violates copyright or not, fair dealing laws provide a list of specific situations that do not violate copyright. Perhaps if the US had this kind of law, our tech and entertainment companies would be even more profitable, because people would know what they could/could not do under the law. We don’t know the answer to this, and I’m not sure how one could study it, but I think the paper would be stronger if it looked at the application of the law, rather than the law as written. 

Either way, even with my concerns, this paper seems like great evidence in support of open scholarship. It’s only a draft, so I hope the researchers continue to work with and refine it. We’ll see where it goes. 

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Jack Sparrow, everyone’s favorite lovable scamp and star of the Pirates of the Caribbean movies is the subject of a new lawsuit, that claims he wasn’t Disney’s creation, but that of three other screenwriters.

As the story goes, Arthur Alfred, Ezequiel Martinez, Jr., and Tova Laiter, submitted a screenplay entitled Pirates of the Caribbean to Disney in August 2000. Disney passed on their script, but did not immediately return it to its authors, as is customary in the film industry, and instead supposedly copied some parts of it. Within the script was a character named “Davy Jones” who is allegedly a lot like Jack Sparrow. So, the plaintiffs argue that Disney read their script, copied the character and some other parts, and made its Pirates movies without getting permission from the plaintiffs. And Disney owes them for it.

In their complaint, Alfred, Martinez, and Laiter argue that the features that show that Jack Sparrow is a copy of Davy Jones is that both are humorous and “good guy[s]”. They write that before Davy Jones, pirates were “traditionally (and historically) evil, loathsome, feared and enemies of mankind … [P]irates in film, while handsome or good-looking, have not been depicted as having a sense of humor, until ‘Captain Jack Sparrow’ in the Pirates franchise.” Accordingly, they claim that they invented the idea of a funny pirate with Davy Jones, and Disney copied that idea in creating Jack Sparrow.

To be blunt, this argument is ridiculous. Apparently they’ve never seen Ice Pirates (1984)Hook (1991), or The Pirates of Penzance (film 1983; Gilbert and Sullivan operetta 1879!), all of which are about funny pirates. And those are just the first that come to mind! I’m sure that with about 5 minutes of research, I could find more funny pirates in film history that existed before Pirates of the Caribbean.

Moreover, even assuming that there had never been a funny pirate before Davy Jones (which is definitely not true), I find it hard to believe that, just because the plaintiffs came up with the idea for a funny pirate, Disney did anything wrong under copyright law by creating Jack Sparrow. First, it’s harder for characters to have copyright protection than you may realize. As the 9th Circuit writes in Rice v. Fox Broadcasting, 30 F.3d 1170, 1175: “While characters are ordinarily not afforded copyright protection … characters that are ‘especially distinctive’ or the ‘story being told’ receive protection apart from the copyrighted work” (internal citation omitted). I doubt a “funny pirate” is “especially distinctive” enough to receive copyright protection.

Second, there is a problem here because of copyright’s idea/expression dichotomy. See, e.g.Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). Copyright does not protect ideas; it protects the expression of those ideas. As an example, J.K. Rowling doesn’t own the idea of a boy wizard who goes to wizard school and fights evil wizards. That isn’t Harry Potter; it’s just a character sketch. However, once Rowling added the other elements of the character like his lightning bolt scar, that his parents died protecting him from Voldemort when he was a baby, so he was raised by his unmagical relatives, and that he goes to a secret school called Hogwarts where he learns magic from Dumbledore, Snape, and McGonagall, we start to see a copyright-protected character.

So, even if Disney took the idea of a funny pirate from the plaintiffs in this case, that doesn’t mean the film studio violated Alfred, Martinez, and Laiter’s copyright. Simply stated: funny pirate + good man does not equal Jack Sparrow. Jack Sparrow is the sum total of all the many character pieces that are in the Pirates movies.

Ultimately, I doubt this case will go very far. But I’m still going to pay attention to it, because it will be interesting to see what happens. Maybe Disney will settle, and we won’t hear about it again. Or maybe Disney will fight back, and we can see if the court agrees with me, or there is more to this story than meets the eye.


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With today’s release of Thor: Ragnarok (a movie I’m quite excited about), I want to point out a case that implicates the copyright of any number of CG characters from movies like it. As reported in this story from The Hollywood Reporterthe owner of software that captures facial recognition used to create and animate characters like everyone’s favorite green smashing machine, the Hulk from The Avengers, is now suing Disney, Fox, and Paramount, over their use of the software and the IP that comes from it.

This case deals with a interesting/strange copyright question. Rearden, the plaintiff, who owns the copyright to this software, argues that he also owns the copyrights to the output of that software: that is, the CG characters. Huh?

While I find it hard to believe that this argument will win the day, this is a case I want to keep my eyes on, if just because these CG characters are everywhere in modern movies. Since the software requires CG artists to create the characters, it seems to me the creator of the software that the artist uses isn’t the owner of the copyright. Isn’t the artist himself a more logical option? Or the producer of the movie, as the employer of that artist. Or perhaps no one owns the character, if the software does all the work on its own. After all, machines, like monkeys, can’t be authors. So I’m doubtful Rearden will win, but who knows? Stranger things have happened in the law.

Either way, I’ll be interested to see what happens.