What You Can and Can't Copyright

A few days ago, I was discussing this whole "Facebook Copyright Notice" ridiculousness and in that post I mentioned that your status updates were copyrightable.  That statement created a small stir (insomuch as I am capable of creating a stir) and since then, people have been asking me about what is and isn't copyrightable.  So I thought I'd quickly address it here.

You can copyright all "original works of authorship fixed in any tangible medium of expression."  U.S. Copyright Law protects, among others," literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture."  The list of works protected under the law is not exhaustive and is wide open to future forms of artistic expression not contemplated by the drafters of the law.  Here's what copyright law does not protect: "facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."  To get a better sense of how that works in the real world, take a look at this picture my wife snapped of me last year.

I'm sitting on the front stoop of my brother's apartment in Boston.  Now, the stoop itself is not copyrightable, nor am I, for that matter.  In fact, every "thing" you see in that photo - from my clothing to the keys I'm holding, to the flower arrangement behind me - none of that is copyrightable because they're all "facts" (they may on the other hand be patent protected, but that's an issue for another time).  However, the photograph containing all those things is copyrightable and is in fact the intellectual property of my wife.  That's because it is her "expression" of those facts and it is fixed in a tangible medium (i.e. photograph). [For the record, the photo was taken with Instagram and like Facebook, does not claim any ownership over content you create with it.  It merely takes a license to use and display your content for as long as you own an Instagram account.]

The same goes for other types of communication, like emails or interviews, that deal heavily in facts and are not often considered to be original works of authorship worthy of copyright protection.  However, generally speaking, both are protectable forms of expression.  While the facts contained within the email or interview are not protected under copyright law, it is the arrangement of those facts in a fixed medium (for an interview, a transcript or tape recording. For an email, well...an email) that gives it expression.  There's a good article here discussing the copyrightable nature of interviews.  I should note that the owner of the copyright to an interview can vary depending on the facts of the case.

If you ever find yourself asking if something you've created is protected by U.S. copyright law, just ask yourself:

1. Did I create this?
2. Is it something that can I show people (if it's digital, it counts.  Your expression need not be printed on paper)?
3. It is an expression of something?

If the answer is yes to all three, then you probably have a work that is protected by U.S. copyright law.  Of course, like everything else in the law, some of this stuff can change depending on the specifics of each individual case.  If you are unsure about whether something you've created is copyrightable, ask an attorney.

One last note: as a rule, there's no size limit placed on the work in order to qualify for copyright protection, which is why your two-line status update qualifies for copyright protection.  However, the smaller your creation becomes, the more you move out of copyright and into trademark territory (for example, a phrase like "You're Fired!" or even single words or names like "Superman" or "iPhone".  Logos and branding are also generally the purview of trademark).  In short, your scatological haiku is protected by copyright, but your friend saying "that's a spicy meatball!" is protected by trademark.

Your Copyrights Are Already Protected on Facebook

I was going to let this story slide, but it seems to be driving everyone into a frenzy - including some very intelligent people whom I respect greatly - so I thought I would take a moment to address it here. If you've been on Facebook anytime in the last week, then you've probably seen your friends posting this notice on their timelines:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention).

For commercial use of the above my written consent is needed at all times!

Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates...

Short version: Facebook is not seeking ownership of your copyrighted works, nor is it doing anything with your copyrighted works that you don't already know about. Posting a notice about it doesn't give you any copyright protections than you didn't already have.

Long version: I understand the talismanic purpose of posting something like that. If enough people do it, it functions like a protest against some of Facebook's more heinous sharing strategies; a preemptive strike against a company that seems to change its terms of service on a whim. But posting that notice is not legally binding. Let me state that again so that it is clear and definitive: posting that notice is completely, totally, and unequivocally useless from a legal standpoint. Here's why:

(1) As I've mentioned before, the moment you create a work of artistic expression, it belongs to you. You are the copyright holder and you are never required to declare to anyone that your copyright has attached to those works. By law, it attaches from the moment it is created.  If, however, you have reason to believe that your copyright has been outright stolen by Facebook or as a result of their practices, that's another matter for which you should seek legal representation.

That copyright covers photos, videos, drawings, writings... anything creative that you make. But copyright does not cover facts or ideas. So while your status update may be copyrightable, your relationship status, name, and other biographical information are not. That means Facebook can share that info without your consent. Furthermore, not all the content on your timeline is your copyright. For example, if your friend posts a photo on your timeline, then you are NOT the copyright holder unless you took the photo.

(2) The Facebook terms of service do not claim ownership over your copyrights, and they have not been changed to claim ownership over your copyrights. The Facebook legal terms page clearly states that:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.

Instead, Facebook has a license to use your copyrighted works for as long as you possess a Facebook account, but you can limit how much of your information Facebook shares with advertisers and other users through your use of the privacy settings.  And for the record, that's always been the case.

(3) By creating a Facebook account, you have entered a valid, legally binding contract with Facebook.  As a result, there are two effects. First, you cannot retroactively change the terms of a contract just because you don't like the terms.  In other words, you've agreed to let Facebook license your copyrighted works simply by signing up for an account and you can't rescind that term.  You can't plead ignorance to the terms either because in contract law, it is presumed that both sides know what they're getting into before they sign on the dotted line.

Second, Facebook owes you a duty to live up to their side of the bargain as well.  You've already agreed to let Facebook license your copyrighted materials, so it can't just change its terms of service to say "we now own all the material you previously licensed to us."  To do so would be a breach of contract.

But looking beyond the law for a moment, there seems to be a fear that Facebook can arbitrarily change its terms of service to dupe you into relinquishing your copyrights. Certainly Facebook can change its policy to make users sign away their copyrights but why would it? It would be a massive PR migraine, and considering the IPO debacle, Facebook isn't going to engage in an activity that puts its reputation in further jeopardy. If Facebook were to make a massive change like that to its user agreement, it would only apply to new users who sign up after the change is made, not to any of the one billion existing Facebook users.

(4) The fact that Facebook is publicly traded means nothing and has no bearing on the copyright ownership situation. As far as I can tell, "open capacity entity" isn't an actual thing and therefore doesn't mean anything.  Also, it's the "Berne Convention," not the "Berner Convention."

(5) Your copyrights are already protected, regardless of what Facebook does, but what about your privacy? I've seen a lot of people confusing the copyright issue with the privacy issue, but they're not the same. The copyright issue deals with things that you've already posted to Facebook and whether Facebook's use of your copyrighted works constitutes copyright infringement (it doesn't). Privacy deals with who Facebook can share that information with. I won't get into the privacy issue here except to say that you can't claim a right to privacy when you voluntarily place your copyrighted works  in a public or semi-public place, such as your Facebook profile. [Obviously this is a bigger issue, but since it's not at stake here, I'll save it for another time.]

So once again, don't bother posting a copyright notice on your Facebook timeline. All you're doing is wasting valuable space that could be better filled with kitten videos.

The Avengers and Copyright Reform

In honor of the most shoppingest weekend of the year, I'd like to discuss how The Avengers got me thinking about copyright reform.

You see, following the mammoth success of The Avengers this past summer, Marvel Entertainment (owned by Disney) planned to release a six-film box set just in time for the holidays that contained Blu-rays of The Avengers, Iron Man, Iron Man 2, The Incredible Hulk, Thor, and Captain America. The films would arrive in a package that replicated the metal briefcase used in The Avengers to carry the film's MacGuffin, the "tesseract."  Here's what it looked like:

Unfortunately for Marvel, the release of the box set was put on hold when German luggage manufacturer Rimowa GmbH sued for trademark infringement and trademark dilution, alleging that the silver briefcase for the six-movie collection was too similar to one of its products, and that releasing the box set would hurt its brand.  The good news for consumers is that while it won't be ready for your holiday shopping needs, the set WILL be released in April with new packaging and special features.

When I read Rimowa's complaint, I rolled my eyes at their claim of trademark dilution claim (they may have a good case on the infringement claim... but I won't use this space to weigh the merits of that argument).  "Here we go again" I thought.  "Another instance of one giant company wielding their intellectual property as a weapon against another giant company so they can squeeze out a few more pennies."  Then my next thought was "at least it's Disney getting sued and not some poor struggling artist."

As you know, I'm a big supporter of intellectual property protection, especially as it pertains to individual artists and creators.  But when the copyright holder is a multinational corporation, my support for protection becomes less absolute.  I don't like bullies and I especially don't like it when giant corporations use their copyrights* to trample over innovation, even if that innovation means some copyrights get infringed.  And to my surprise, a Republican staffer named Derek Khanna agrees with me, writing a policy paper on copyright reform that recently caused a stir.  In the paper, Khanna argues chiefly that our current system of copyright law actually harms the free market, hurts the consumer, and stifles creativity and innovation.  Khanna further argues that the powers to protect intellectual property granted to Congress in the Constitution were designed not solely to benefit the creator.  Rather, they were created to benefit the public, and creator compensation was just a way to fulfill that need.  FYI, the actual text of the Constitution, Article 1, Section 8 reads that Congress shall have the power:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Khanna recommends several fixes, most of which I agree with.  Expanding Fair use protections (basically, allowing more people to use copyrighted material for certain purposes without paying for it), lowering statutory damages (current damages can see you paying upwards of $150K for each infringed work.  Khanna argues that it's un-American to charge someone millions of dollars for downloading a few dozen songs), punishing false copyright claims (I've talked about this issue before), and significantly lowering the length of copyright ownership from "life of author + 70 years" to 14 years, renewable every 14 years while the author is alive.  Khanna's paper proved so controversial that 24 hours after publishing it, his Republican bosses removed the paper and issued a letter stating that the paper hadn't been properly vetted.  Which makes sense after all; the major media companies (who are also the biggest copyright holders in the world) are big political donors.

In the case of Rimowa v. Marvel, the stakes aren't very high for the average consumer.  People will get the box set they want eventually and if they can't wait, they can go out and buy the films individually.  Disney is going to be just fine... maybe a few million bucks poorer, but that's about it. The underlying issue here is larger than whether I can go and buy a cardboard case filled with movies.  It even goes beyond how much power our current copyright law grants to companies that can use those copyrights to bully the small artist and innovator.  The issue really boils down to whether companies have the same rights as individuals.  Should a company get the same rights I get under the law?  While Khanna's paper rarely singles out corporations as the biggest profiteers and abusers under our current copyright law, it's difficult to imagine that he wasn't thinking about them directly while writing it.   In one passage, he says that "Current public policy should create a disincentive for companies to continue their copyright indefinitely..."  The whole point of the paper seems to be this: copyright too often is used as a weapon to harm individual creators.  Disincentivize that by making copyright ownership less profitable for the corporate owner.  I wholeheartedly agree.  Actually, I will agree with and support just about any reform that takes the power out of the hands of the corporate copyright owner and gives it back to the individual creator.  Art should belong to the artist.

And if the end result is that I can get my Avengers box set sooner than later, then that will be a welcome side effect.

* For the record, yes I do know the difference between copyright and trademark.  For the purpose of this post, however, I'm treating them as interchangeable because they protect different types of the same thing... intellectual property.

147 Years Later, Lincoln is Still Relevant

[Author's Note: I discuss what may be considered spoilers below, so if you haven't seen Lincoln, or don't want to wikipedia the events surrounding the 13th Amendment's passage, read no further.]

There are two moments towards the end of Lincoln that made me realize why the film should be shown in every high school civics class.

In the first, Lincoln is surrounded by his advisers and they warn him that passing the 13th Amendment at the expense of a negotiated peace with the south is impossible.  In fact, it is tantamount to political suicide. By this point, however, Lincoln is exhausted from all the jabbering and naysaying and decides to put an end to it.  He doesn't want to hear why they CAN'T pass the Amendment, he wants to hear HOW they can pass the Amendment.  He wants to get his way, come hell or high water.  For only the second time in the film, Honest Abe loses his temper and thunders the most quotable line in the movie: "I am the President of the United States of America! Clothed in immense power!" The room goes silent and the point is clear: there is only one item on the President's legislative agenda that matters, passage of the 13th Amendment.

Shortly after, Lincoln goes to meet with the three negotiators hired by Secretary of State William Seward to get the 22 democratic votes needed in the House of Representatives to pass the Amendment. Lincoln not so subtly discusses with the negotiators - played by John Hawkes, Tim Blake Nelson, and James Spader - exactly how to "convince" these democrats how to vote across party lines in favor of the Amendment. Some of those convincing techniques involve bribery, threats, and favors to lame duck congressmen who weren't reelected (one settles for becoming the postmaster of his county).

Taken together, these scenes perfectly encapsulate the thematic bottom line of Lincoln: that politics is about getting things done, even if it means breaking the law to do it. Certainly the film has a lot more on its mind... bravery, morality, how little our political system has changed over the centuries. But make no mistake, Lincoln wants us to see how the sausage gets made, so to speak, and come away with the realization that lawmaking isn't a zero sum game. Just because your bill is righteous and takes the moral high ground doesn't mean it will pass automatically.  It is okay (and often necessary) to do a little evil in order to do a great good. Lincoln certainly believed that during his political life. The 13th Amendment, the largest progressive restructuring of America's social contract, happened mainly because palms were greased, wheels were dealed, and favors doled out... all at the order of the President of the United States (at one point, the vote on the Amendment is stalled when rumors arise that delegates from the south have come to seek a peace. Lincoln writes a note to be delivered to the Speaker of the House denying that such an event has happened... even though it is in fact true.  Lincoln's aide refuses to deliver the fraudulent note. Lincoln smiles, takes the note, tenderly holds the hand of his aide as if to say "I understand", and then gently hands it to another aide to deliver, who promptly sprints back to the Capitol building to deliver it.)

Today, the media saturates the American public with all the ups and downs, and ins and outs of our political system. As a result, we feel like we see a lot about how our laws are passed in this country. We understand that politicians vote along the party line and do not cross the aisle unless they are compelled to do so for a moral reason or because they've been "convinced." Lincoln argues this is indeed the case, but maybe that isn't a bad thing. Lincoln and his supporters have no compunction about buying the votes they needed in a flawed and messy system because they knew that the future of the country depends on the Amendment's passage. And while it's easy to get discouraged by the apparent lack of progress in this country, the film argues that America's system of passing and amending laws is painfully slow by design. It prevents zealots from taking over and changing the nation's social, political, and class structure on a whim. Real change takes a magnanimous effort to overcome the significant political inertia that's built up over time.  The result is this: when that change comes, it's here to stay.

Lincoln knew why the 13th Amendment was so important.  Like a canonball to the gut, it signaled that America was finally on the path towards achieving the heart and soul of the Declaration of Independence: "we hold these truths to be self-evident, that all men are created equal." That's a battle we're still fighting today, but at least we're winning it. Even still, Lincoln doesn't shy away from the messiness of that balancing act. In one scene, he discusses the 'slipperiness' of his interpretation of his powers. In yet another scene, he acknowledges to another character that he has no idea what's in store for the country or it's black population after the Amendment passes. But he knows that this is a battle that needed to be fought, and he was going to use every tool in his arsenal (regardless of its legality) to win that battle.

It's a pragmatic view. It's a realistic view. It's a view that understands morality has a place in politics, but should not get in the way of politics. It is completely unromantic and it cuts against the moral righteousness and manifest certainty we are taught about our country. And that's exactly why it should be taught in our schools. We need to have a much more sophisticated understanding of how our government works. Only then can we get our government to truly work for the people. Lincoln is a masterpiece because it doesn't coddle us and give us the 5th grade version of things. It's a masterpiece because it understands that we can still do great things, even when we do them wrongly.

The Artist Returns... With a Mission For His Readers

Dear readers, friends, and colleagues,

As you may have noticed, I have been absent from this blog for the better part of a month.  The reasons for this absence are myriad and range from interesting (a sudden and epic trip to Beirut, Lebanon) to uninteresting (Olympic-level laziness).  Suffice to say, I plan to make sure that such a lengthy absence occurs never again.  As things calm down over the next few weeks, I expect to return to the blog full-time and give regular updates at least once a week, starting now.

But that's not all.  Back in September, I briefly mentioned a project that I've dubbed The Artist's Bill of Rights.  The time has come to make this project a reality and friends, I want your help.

Here's the pitch: You're an artist, writer, musician, or filmmaker and you want to earn a living doing that.  But as an artrepreneur, you know you have to sweat the business stuff to make a living.  That's where the Artist's Bill of Rights can help you.  It will be a guide to all those young starving artists out there who can't afford to hire a legal team, but desperately need to know how protect themselves and their work.  And while the Bill of Rights isn't meant to be a replacement for real legal representation, it WILL at least give artists a primer on how to find the resources they need and give them a basic education in their legal rights.  When the Bill of Rights is completed, I will provide it FREE OF CHARGE here on this website.

So what do I need from you?  Two things:

(1) Just like the United States Bill of Rights, the Artist's Bill of Rights will have a list of Ten Rights that I think are the most important for artrepreneurs to know.  I've already come up with more than enough to get started, but I realize that my experience in the art world isn't sufficient.  So I'm asking every artist out there this question: what law or law-related issues do you wish you had been taught when you first started going it alone?

These questions can run the gamut from ownership of intellectual property, such as "if I'm commissioned to do a sculpture, who owns the copyright?" to payment questions such as "if a client doesn't like the work I do for them, can they withhold payment?"  They can even be business oriented questions such as "what is the best corporate form for my design business... an LLC or a sole proprietorship?"  As long as the question has a tangential relationship to the law, don't hesitate to ask me.  I will incorporate the most relevant ones into the Bill of Rights.

(2) Maybe you're not an artist, but I'll bet my paycheck that you know one.  Find him or her and direct them to this post.  We live in a precarious time, economically speaking, but there's no reason why someone with artistic talent and ambition shouldn't be able to make a living doing what they're good at just because they don't know how to protect themselves.

My hope is that The Artist's Bill of Rights will be a tool that artists - young and experienced alike - can use to level the playing field and even *gasp* make a living doing what they love without fear of poverty.

I can be contacted through the Get In Touch link at the top, or directly at thelegalartist at me dot com.

Also... did I mention that it would be free?  That's pretty important.  Tell your friends!