If Art Can Be Used To Harm Artists, What Are We Fighting For? A Brief Rant

With all the injustices going on in the world (Ferguson, Gaza, Ebola, Boko Haram, Net Neutrality, the Emmy's being held on a Monday night, etc.) it's hard to gin up outrage over anything else... but my parents didn't raise me to be a quitter.

Today's outrage comes courtesy of Ultra Records. Last month, Michelle Phan, a Youtube Makeup Tutorial Star (a profession that certainly did NOT exist ten years ago), was sued by Ultra Records for using the music of some of its artist in her videos; specifically, the music of Kaskade, Late Night Alumni, Deadmau5 and Haley. Ultra claims that Phan used over 50 songs without their permission, an allegation her spokesperson denies.

If the story stopped there, I would be plenty mad. Even if Phan did use the songs without permission, why is it necessary for a corporation to gang up on her and drag her into the legal system? Why are they suing her for $150K for each infringed work, the maximum statutory amount (totaling over $7 million in damages)? In most cases, a simple cease-and-desist would have been enough to resolve the issue. By suing her for that much money, Ultra isn’t even trying to disguise its greenlust. It’s the equivalent of going pheasant hunting with an elephant gun.

What pushes this case into the realm of the absurd is that Kaskade, one of the musicians Phan is accused of infringing, doesn’t support the lawsuit. In a series of tweets, he’s come out in support of Phan, stating that “[c]opyright law is a dinosaur, ill-suited for the landscape of today’s media.”

Maybe he’s right. It's ridiculous that someone like Phan could be held accountable for millions of dollars for infractions that amount to little more than being a music fan. And whether or not a court finds her liable, the mere fact of being dragged through this process can be debilitating for someone like her who is trying to find a modicum of success on her own. What can be changed? How can copyright law better address a world where media is much easier to use and reuse? I don't really have an answer, although I suspect that disincentivizing lawsuits and shortening copyright term limits are ways to get the ball rolling.

Look, I know it’s hard out there for independent record labels. Being in the business of art is difficult enough in the best of times, and we are not in the best of times. When you factor in illegal torrenting, uncountable revenue streams, and strong-arm tactics by larger companies, you don’t always think straight. And the result is that labels like Ultra and organizations like the RIAA end up brutalizing the little guy in a show of force that that far exceeds the initial infraction.

That’s why I spend so much time railing against these large corporate copyright holders on this blog. Copyright law was never meant to be used a bludgeon to ground out the petty infringers, although that’s how it’s often used. It was designed to make society better and, while we’re at it, throw a little patronage to creators of valuable intellectual property to show them that their toiling hasn’t gone unnoticed.

I know this doesn’t seem like a big problem in light of everything going on in the world right now, but I think it’s yet another clear indicator that our priorities in this country are far afield: focusing on the privilege of the big over the rights of the small. And if we don’t pay attention to this problem, it’ll just get pulverized by something bigger and louder. In times like these, I like to remind myself of a quote that’s often misattributed to Winston Churchill. And even though he didn’t say it, I think it perfectly sums up the battle before us. When Churchill was asked to cut arts funding in favour of the war effort, he simply replied "then what are we fighting for?"

My Take On The Great Monkey-Selfie Copyright Controversy

Happy Friday friends! No doubt you've all heard about the Monkey-Selfie heard 'round the world and I thought I'd weigh in briefly with my take. In 2011, nature photographer David Slater set up his camera in the Indonesian rain forest to photograph the indigenous fauna. When he turned his back for a moment, a black crested macaque took the camera and started snapping selfies. That photo (possibly the greatest selfie in history) was later placed up on Wikimedia Commons and Slater sued to have it taken down, claiming copyright infringement.

Wikipedia, the company behind Wikimedia Commons refused to remove it, however, because it argues that Slater doesn't own the copyright and thus cannot enforce his claim. According to Wikipedia, the monkey took the photo, and because a monkey cannot own and enforce a copyright, the photo is owned by no one and exists in the public domain. Slater of course disagrees, and has spent thousands fighting this case. He even claims that it's even starting to ruin his business.

The case has sparked an interesting discussion online and I've seen many arguments in favor of Slater (it was his camera equipment, he did all the legwork required to get the photo and pressing the shutter was only the final step in a long series of steps that he, and only he, participated in, etc.) and as many against (ownership of the equipment doesn't impute copyright ownership, Slater didn't press the shutter and that's all that matters, there was a lack of intent and creativity on Slater's part, etc.). There's a rundown at Slate from a bunch of law professors explaining why Slater will lose.

Far be it from me to quarrel with a law professor, but I think Slater will win this fight for one very simple reason: copyright laws in this country prioritize financial reward for creativity above other rights. Chris Sprigman, a law professor at New York University, says in the Slate article that, “copyright’s not there to reward people for their labor—it's to incentivize people to create new books or poems." While I agree with Professor Sprigman that the original intent of including copyright protection in the U.S. Constitution was for the benefit of society as a whole, I don't think the legislative history really supports that argument very well these days... especially as far as corporate copyright holders are concerned. The Mickey Mouse Act extending copyright term limits is a great example of Congress prioritizing economic rights over moral rights.

And boy oh boy, if Slater wins, there's a ton of money to be had in monkey selfies. When you consider the fact that the only party in this case that could be financially harmed would be the monkey (who, for obvious reasons, cannot represent himself or be represented in the case), there's really no downside in granting the copyright to Slater. All the rest is window-dressing that a court can easily rationalize away.

What do you think?

The Supreme Court Kills Aereo Because It Found a Loophole

In the aftermath of Wednesday's 6-3 Supreme Court decision stating that Aereo was in violation of the U.S. Copyright Act, there arose in the tech world an amount of hand-wringing that would make Helen Lovejoy green with envy.

When the decision came down, most media outlets proclaimed the demise of the innovative tech start-up. Others lamented the decision and lashed out at the bipartisan group of justices that wrote for the majority. Still others rushed to argue that no, the decision didn't mean the end of Aereo. A friend of mine, a subscriber to Aereo's service, is in the midst of the traditional five stages of grief. In a single day, he's cycled through denial, anger, depression, and now he's onto the bargaining stage, devising solutions to save the company so convoluted you'd need to divert physicists from the Large Hadron Collider to fully comprehend them.

The dust still hasn't settled and it will be a while before we know if Aereo can survive, but here's what we do know: Aereo used a series of antennaes to pull live broadcast signals out of the air and stream them to its subscribers. It did this without paying licensing fees to the networks who own the shows, unlike other broadcasters. Aereo argued that it was merely an equipment provider and not a broadcaster and therefore didn't need to pay licensing fees (hence why their rates are $8 a month as opposed to Comcast's $99). Six of the SCOTUS justices didn't buy it. Roberts, Ginsberg, Kennedy, Breyer, Kagan, and Sotomayor found that despite the technological back-end that made Aereo so unique, Aereo still functioned largely as a broadcaster of copyrighted material as defined by the 1976 amendment to the Copyright Act. They also said that Aereo was a "public performer" of the copyrighted materials. Taken together, these issues meant that Aereo has been violating copyright law since its inception two years ago.

Clearly, a lot of people don't agree with the decision, and this TechDirt article explains why. In essence, they claim that the SCOTUS used a "looks like something that infringes test" to get to their desired result. They looked at the surface and, without really understanding how the technology works, decided that it must be a broadcaster. Critics of this approach cite this as another example of the anti-technology, intellectual laziness that's hung over this particular line-up of justices for some time.

The critics are right in one regard: in determining a case, the justices should always try their best to understand how a particular technology works. Simply relying on a "looks like" approach is not the way the highest court in the land should operate.

But I'm not convinced that's what happened here. I've read this decision cover to cover (unlike other SCOTUS decisions which can be punishingly long, this one clocks in at a reasonable 35 pages). I wanted to hate the outcome. But to my eyes the justices did in fact understand Aereo's technology. They simply weren't convinced that the technology stood far enough apart from those of more traditional broadcasters to exempt Aereo from having to comply with the Copyright Act. This decision doesn't read like a "if it looks like a broadcaster then it must be" approach. It seems much more logical and considered than that.

However well considered the intentions though, bad law can still come out of it. Whether the Court intended it or not, the decision effectively gives cable companies and broadcasters - powerhouses that already lord over us - even more authority to run the board however they want. As I write this, Fox is using the three-day old Aereo decision as leverage in its legal battle against Dish Network.

It also raises a question of legitimacy, as do most of the recent decisions from this heavily partisan Court. In the decision, the justices state that the decision is narrowly tailored towards rectifying Aereo's specific actions rather than attacking technological advances by other start-ups in general. In other words, it looks like the Court is singling out Aereo for punishment, rather than deciding the law. And it does raise the question as to whether this case was really about technology, or whether it was a facade for something more sinister: loopholes (Scalia says as much in his dissent). Aereo thought it found a technological loophole so that it wouldn't have to pay licensing fees to the networks like Comcast, Time Warner, and AT&T have to. Was this a case of revenge? Were the broadcasters expecting the Supreme Court to act as a bludgeon for their interests? If so, that's the bigger concern.

Supreme Court Deathmatch: Aereo vs. The Entire Broadcast Network Industry

For the last six months, a friend of mine has relentlessly tried to get me to ditch my Xfinity hookup and replace it with Aereo, an online TV subscription service. To hear him tell it, it’s the greatest thing ever invented - immediate and live access to broadcast news, sports, and TV shows from the big 10 networks such as NBC, CBS, ABC, FOX, PBS (no cable channels though), all for a measly $8 a month. I think I’ll wait though. I’m happy with my yesteryear technology and I derive a certain amount of comfort from mindlessly flipping through hundreds of channels I’ll never watch. More importantly, Aereo may not even exist in six months. That’s because tomorrow the Supreme Court will hear oral arguments in the case of American Broadcasting Companies, Inc. v. Aereo, Inc. And if Aereo loses, according to its own CEO, the company is kaput.

For those who don’t know, Aereo is a startup that takes television broadcasts from networks and retransmits them to you live via the internet. You can also store these broadcasts in a cloud-based DVR, all for the cost of two cups of coffee. As it turns out, even though you’re paying Aereo, Aereo is not paying the networks; it's just ripping these broadcast signals out of the air and streaming them to you. That didn’t make the networks too happy, so they banded together and sued Aereo for copyright infringement.

This isn’t an easy case and I don’t envy the justices the amount of work they'll have to even understand the technology at play (read this article if you want to know how behind-the-times the SCOTUS really is). Ultimately, this case turns on whether Aereo’s retransmission of broadcast television constitutes a “public or private performance” of copyrighted works. Private performance is perfectly legal, like when you buy a DVD and show it in your home. Even if you invite 100 friends over to watch, you’re safe. But let’s say you rent a theater and charge for admission - that would make the performance public, and that becomes copyright infringement.

In this case, the networks argue that Aereo’s actions constitute public performance because:

1. Aereo streams “live TV” to a wide variety of subscribers;
2. Aereo charges fees for its services;
3. Unlike other retransmitters, Aereo doesn’t pay licensing fees to the networks for permission to broadcast their content.

In opposition, Aereo argues that it does not transmit “to the public.” It transmits only to its paying user base. Furthermore, the choice about what gets retransmitted at any given time is made by the subscriber, not Aereo. Some lower courts have already sided with Aereo, but if I’m being totally honest, I empathize with the networks, even though siding with a corporate copyright holder gives me the willies. Creating and broadcasting content is back-breakingly hard and terrifically expensive. Even some of those low-budget reality shows for third-rate cable channels that look like they were shot on iPhones… oftentimes they have budgets in the tens of thousands of dollars per  episode. And there are lots of working-class content creators behind those shows. Remember, most people in the entertainment industry aren’t millionaires; they’re regular people working paycheck to paycheck, relying on a steady stream of work from networks and studios to pay their bills. It’s easy to think of the producers and directors and say “who cares?” But the people who get hurt first and hardest are the below-the-line talent: the grips, boom operators, location managers, scouts, production assistants, etc. What will happen to those jobs if the networks believe that pouring money into original content is no longer a profitable business model? And if you’re one of the networks, do you want to continue operating in an industry where it’s permissible for competitors to poach your signal and rebroadcast your content without owing you a fee for your trouble?

I don't know what's going to happen, but in a corporate-friendly court like this one, I can see the Supreme Court buying an argument that Aereo’s continued existence will irreparably harm the bottom lines of not just the networks, but the big telecoms like Comcast and Time Warner (soon to be a single world-killing behemoth). I don’t want to see Aereo go down because the use of technology to better peoples' lives is an intrinsic part of the American ethos. But I also don’t want to see a wholesale dismantling of the entire entertainment industry (alarmist I know, but still possible).

I’ll update this post with some thoughts after Tuesday’s oral arguments. In the meantime, I’m going to stick with my cable hook up, and I’ll tell my friend to  start budgeting for cable again if Aereo goes down the poop chute.

Protecting The Brand: Katherine Heigl Sues Duane Reade To Protect Her Publicity Rights

Katherine Heigl has never been a lovable celebrity. Throughout her career, she's bad-mouthed her projects and coworkers to such a degree that Hollywood and the public have largely turned on her. Some have even dubbed her "Hollywood's Most Hated Actress." Lately, it appears she's taken a page out of Sheryl Sandberg's playbook and is leaning in to that title; last week she sued NY-based drugstore chain Duane Reade for $6 million after they tweeted a picture of her leaving one of their stores after shopping there. If she wins, she plans to donate that money to charity... her own charity.

To be sure, this lawsuit isn't going to win her any fans. But then it's not really designed to; it's designed to protect her publicity rights. And using that as a guidepost, Ms. Heigl may actually have a point. Here's the tweet in question:

Heigl's complaint alleges violations of the Lanham Act (the law governing trademarks) as well as New York Civil Rights Laws Sections 50 and 51 (which govern privacy). I'm not going to address the trademark issue here because she would have to prove that Duane Reade's use of her picture would likely confuse the public into assuming she was affiliated with Duane Reade. I just don't think the facts are compelling enough to make that claim (the average person will not conflate shopping at a store with endorsement of it). As I see it, this case is more likely to turn on the privacy issue anyhow.

Section 50 of the NY Civil Statutes says that:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

That kind of says it all, doesn't it? The image of a person (famous or not) cannot be used in advertising without their consent - which Ms. Heigl obviously did not give. In common law, this would be referred to as "appropriation of likeness" which is considered one of four privacy rights. So does the tweet count as advertising? Based on the nature of the tweet and the wording, I think a convincing argument can be made. After all, why would Duane Reade tweet that picture if there wasn't a business motive behind it? It's not like the picture was taken by an awe-struck fan... the picture was taken by a paparazzo which was then used by a corporation whose message on Twitter and Facebook was clearly that "Ms. Heigl is a patron of our stores."

Even still, this infraction seems relatively harmless... certainly not worthy of $6 million of Heigl's wrath. And it does raise some questions about the nature of publicity rights as used by celebrities. On the one hand, social media has made it difficult for people to know where the line is between advertising and simply pointing out "here's a celebrity!" While I think the tweet counts as advertising, I could be convinced otherwise with some clever lawyering. There are also First Amendment questions at stake - can a corporation never tweet a picture of a famous patron? Is such a tweet automatically advertising by its nature? And would banning those types of tweets violate the right to free speech? On the other hand, celebrities rely on their images to get work, and having that image appropriated for a use they never approved could result in a loss of work or even ruin business relationships (e.g. what if Ms. Heigl just worked out a deal to be a spokesperson for CVS? The tweet of her shopping at a competing drugstore could destroy that deal).

I know, I know. It's hard to care about how Duane Reade's tweet may negatively impact Ms. Heigl. That's the level of damage she's done to her personal brand. And this lawsuit, however justified, doesn't do anything to help her image. For her sake, I hope she realizes that legal protection of a brand is not the same thing as public protection. The former is fine, but if she wants to continue acting, it will be crucial for her to work on the latter.