Robin Thicke Sues Marvin Gaye's Family To Prevent Being Sued By Marvin Gaye's Family

John F. Kennedy once said that "victory has a thousand fathers, but defeat is an orphan."  This is never more true than in the entertainment world, which is why Robin Thicke, Pharrell Williams, and T.I. (aka Clifford Harris Jr.) have decided to sue Marvin Gaye's family and Bridgeport Music in order to deny their parental rights to Blurred Lines.

The Gaye family claims that Blurred Lines ripped off Marvin Gaye's Got To Give It Up, and they're demanding a substantial monetary payout.  If they don't get it, they'll sue for copyright infringement.  In response to the threat of legal action, Thicke preemptively sued them and is seeking a declaration from the court that Blurred Lines doesn't infringe Got To Give It Up.

Before we go any further, listen to both songs and compare for yourself.

Here's the SFW version of Blurred Lines:

[youtube=http://www.youtube.com/watch?v=yyDUC1LUXSU&w=560&h=315]

And here's Got To Give It Up:

[youtube=http://www.youtube.com/watch?v=fp7Q1OAzITM&w=420&h=315]

The lawsuit also contains allegations by Bridgeport Music that Blurred Lines plagiarized Funkadelic's Sexy Ways:

[youtube=http://www.youtube.com/watch?v=JxKOQ3SfGhg&w=560&h=315]

Now I consider myself something of a musical ignoramus, but even I can tell when one thing sounds like another thing.  While there are some similarities between the songs, primarily because of the up-tempo beat, I think it's pretty clear that Blurred Lines is a wholly separate entity.  Which means no infringement took place because copyright law doesn't protect individual elements of a work when those elements are commonly used in an industry or genre (known in the legal biz as "scènes à faire").   So in the hip-hop/R&B world, where uptempo bass-heavy beats are the norm, that similarity by itself would not be enough to constitute copyright infringement.  There would have to be greater similarities between the songs in the lyrics and melody for a court to find some form of plagiarism.

So, if Thicke isn't in danger of losing an infringement case, then why did he sue the Gaye family in such an aggressive fashion, especially after stating in his complaint that he has the "utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies"?  Certainly Thicke and his partners aren't content to share the glory with 997 other fathers.  Blurred Lines is THE most talked about song of the summer.  It's a legitimate phenomenon.  Why should they share the substantial revenues they'll accrue with another artist?  Even if that artist inspired them to begin with?

But I actually think this lawsuit is less about money than about sending a message.  See, Blurred Lines is a real winner, and if Thicke can be bullied into settling out of court for several hundred thousand dollars in order to avoid a long and costly trial... well that's a pretty easy way to make a few bucks.  Sadly, this type of thing isn't uncommon in the entertainment world.  In fact, it's downright mundane.

"Your hit song/TV show/movie has something vaguely in common with my lesser known song/TV show/movie and if you don't pay me, I'll tie you up in litigation for years."

It's a very common tale.  My guess is that Thicke decided to take the fight to the Gaye family to show that he can't be bullied.  Will this type of preemptive lawsuit work or will a judge dismiss it and basically tell Thicke to wait until he gets sued?  I have no reason to believe it won't have the desired effect.  If it does, I think you'll see a lot more of these preemptive lawsuits.  If it doesn't, the moral of the story will remain the same: you can't be a hit without people bleeding you for everything you're worth.

Licensing Getty: A Cautionary Tale For Artists Using Stock Photos In Their Portfolios

[Yesterday I got an email from a reader telling me a pretty scary story.  She's permitted me to share it, but for the sake of confidentiality I'll change her name to "Jean".]  

Five years ago, Jean was hired to design an ad for a local business.  As part of the design process, she incorporated a stock photo from Getty Images, an online stock photo library.  Jean's client liked the work and paid Getty a licensing fee to use that photo in the ad.  The terms of the licensing agreement stated that the image could be used in print ads only.  Jean put the ad on her personal portfolio website.

Last July, Getty's netbots discovered the ad w/image on Jean's website.  Because the terms of the licensing did not include website use, Getty sent her a letter accusing her of breaching the license agreement and demanding $8,000 in usage fees.  The netbots also found two images that she had used in mock-ups for other clients, but those mock-ups were never approved by the clients and the images never licensed.

Faced with a pretty scary situation, Jean did what a lot of people would do: she took down the images.  This seems to have placated Getty because no more demand letters were sent.  But did she really have to take them down?

Well, there are two issues determining whether Jean should fear Getty's wrath.  1) Did Jean's use of the image constitute copyright infringement?  2) Did Jean's use of the image constitute a breach of contract?

Regarding Copyright Infringement

Most IP lawyers agree that displaying your work in a portfolio, even when the copyright is owned by someone else, is permitted under fair use.  That's because portfolios are non-commercial in nature, and don't generally compete with the copyright owner's financial interest.  Jean's case is slightly different because the artist and the client aren't the only parties involved.  There's a third-party copyright owner (Getty) who is laying claim to the image.

But even with that wrinkle, Jean is okay leaving the ad featuring the licensed image on her site.  It doesn't conflict with Getty's market and she's not profiting from its display.  She's using it as an example of her prior design work.  No copyright infringement here.

Regarding the unlicensed images, I think removing them was the right decision.  On the face of it, fair use applies to these images just as they would to the licensed image.  But fair use is a squishy doctrine and in the absence of a license agreement, a judge could look at Jean's website and reasonably believe that she's not an innocent infringer (using images without permission from a website whose sole business is to license those images could indicate intent to pirate).

Regarding Breach of Contract

According to Jean, Getty placed very specific conditions on the use of the licensed image - print ads only, no web.  Any violation of those terms constitutes a breach of contract, which is why Getty sent her an $8,000 bill.

Getty is fiercely protective of its copyrights.  Their licensing agreements regulate every possible use of their images: the size of the image, number of times the image can be used, what mediums the image can be used in, and even placement of the image in the final artwork.  When I was a producer, I would license stock photos from Getty all the time and they negotiate like Iranian hardliners.  One time, I was trying to get their permission to use a single stock photo for a fifteen-year term in a documentary.  No matter how hard I pleaded, I couldn't get them to budge from a ten-year commitment.

That said, standard agreements like these don't usually make third-parties liable for breaches of contract.  Meaning that since the agreement was between Getty and the client, the terms of the contract likely didn't apply to Jean.  Therefore, Jean is not liable for breach of contract.

So What Can Jean (And You) Do?

Realistically, Jean had no legal liability for displaying her work on her website.  But to prove this, sadly, Jean would have to risk being sued by Getty.  And as I've discussed before, going to court and winning, especially on a fair use case, is still a loss because of the time, money, and effort she would have to invest in defending herself.  So the trick is to minimize liability before Getty can even send you a letter.

So, for all you designers who use stock photos in your work to stay (legally) safe, here are a few things you should always do:

1. All photos should be properly licensed by you or your client
2. Web use and/or portfolio use should be explicitly permitted in the license agreement
3. Even if the licensing is done by the client, read and understand the terms of the licensing agreement to understand your liability to the other parties (i.e. if the client pays the license fee, are you as the artist liable to Getty as well for a breach of the contract?)

Remember, as an artist, your portfolio is the face of your business.  The less work you can show, the less successful your business is.  But because Getty's first instinct is to throw lawyers at you, each of you has to determine for yourself whether fighting back is a viable option.  Following these three tips will help minimize that possibility.

[Author's Note: I'd be interested to hear from other lawyers out there if you've had different experiences working with Getty.  Ditto for artists.  Hit me back in the comments section below.]

Sony Wins "Midnight in Paris" Lawsuit, Inadvertently Proves My Case About Copyright Duration

"The court has viewed Woody Allen’s movie, 'Midnight in Paris,' read the book, 'Requiem for a Nun,' and is thankful that the parties did not ask the court to compare 'The Sound and The Fury' with 'Sharknado.'" - District Court Judge Michael P. Mills

*****

Last October, William Faulkner's estate sued Sony Pictures Classics, the distributor of the hit Woody Allen film Midnight in Paris, claiming that a line used by Owen Wilson's character in the film was pulled straight from Faulkner's 1950 novel Requiem for a Nun without permission from the estate.  Such a use, the estate argued, constituted both copyright and trademark infringement.

Just for comparison's sake, here's the line from the book: "The past is never dead. It's not even past."

And here's the line from the film, said by Owen Wilson's character Gil Pender: "The past is not dead! Actually, it's not even past.  You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

When I heard about the lawsuit, I rolled my eyes.  "This is exactly the kind of frivolous lawsuit that makes people hate lawyers," I groused to my wife.  The line was so minimal and seemed like a clear-cut case of fair use.  The suit didn't seem like a credible attempt to protect Faulkner's legacy; it looked like a cynical ploy designed to cash in on a box-office hit.  Judge Mills, as evidenced by the above quote, agreed.  In an opinion issued yesterday, he dismissed the Faulkner case against Sony, finding that film's use of the Faulkner quote fell within the fair use exception to copyright infringement.

But the content of the opinion interests me less than what this case means to copyright policy.  Because whether Judge Mills intended it or not, the dismissal speaks volumes about a problem with the way this country shields copyright holders from piracy.  Namely, that copyrights are allowed to live for too long and that results in too many lawsuits.

Back in April, I wrote this Sherlock Holmes piece discussing why the current scheme of copyright duration should be changed to better serve the current copyright landscape. Right now, any work of art fixed in a tangible medium is protected by U.S. Copyright Law for the life of the author plus 70 years.  I argued that allowing copyrights to last for so long actually stifles creativity and innovation in the following ways:

1. Artists are less incentivized to create new works because of the looming spectre of legal action
2. Owners of profitable copyrights like Sherlock are less incentivized to create new works of art as long as they can continue to profit from those copyrights
3. Copyright owners like the Faulkner estate are incentivized to pursue legal action against even the most minimal use of their copyright because the length of the copyright's life acts as a mandate to keep the work protected at all costs

And that's exactly what happened here.  Under our current copyright law, Requiem for a Nun is still protected 62 years after publishing and 50 years after the death of the novel's author.  It will continue to be protected until 2032.  This permits the descendants of the author to pursue all uses of that work anytime they see green and to concoct unreasonable arguments in defense of that green (the Faulkner estate, as part of its now dismissed trademark claim, argued that the use of William Faulkner's name in the film is likely to deceive the audience into believing that an affiliation exists between Faulkner and Sony).  And while the verdict in this case was proper, it won't be the last time this happens.

A shorter copyright duration is better because it allows the author and his immediate family to profit from his creation, but it also devalues the property after the author's death by coming into the public domain sooner.  And that's a good thing.  If Faulkner is no longer profitable, then that frees up people to use his characters in new and interesting ways, while also incentivizing the estate to create something new.  Someone argued with me once, claiming that letting the work into the public domain would open it to bastardization, copying, and retread.   But I fail to see how that's a bad thing.  If a filmmaker wants to stage a remake of Sherlock Holmes starring Justin Bieber as Sherlock and Chester Cheetah as Watson, well sure that will probably suck big time, but that doesn't diminish Conan Doyle's original writings.  Those remain untouched and intact.  And anyway, the integrity and profitability of a work are not often related.  If they were, the Broccolis would never have greenlit a James Bond movie where Denise Richards played a nuclear scientist.

The purpose of copyright protection isn't to provide a golden parachute for the author and his beneficiaries until the end of time.  It's mean to foster originality and ingenuity for the betterment of society.  Hell, even the head of the Copyright Office, Maria Pallante, suggests shortening the duration of copyright to life of the author plus 50 years.

The point is, until we revamp our copyright law to stop favoring the corporate copyright holders, we're going to continue seeing lawsuits like Faulkner v. Sony any time a large copyright owner sees a potential conflict with its interest.  When I look at Judge Mills' decision, I don't see a single judge smacking a plaintiff for filing a frivolous lawsuit.  I see an indictment of a system that allows the suit to be brought in the first place.

Fairly Useful, Part Deux: Why It's Always Better To Ask Permission Than Beg Forgiveness

[It's the summer!  Which means all the movies in theaters are sequels, so why should this blog be any different?  Last week I wrote a follow-up to my Death of the Unpaid Internship article and it was a colossal hit.  Can lightning strike twice?  I shall endeavor to find out.]

Several months ago I wrote a post called Fairly Useful: Why Fair Use Is A Simple, But Dangerous Legal Doctrine.  The purpose of that post was to provide a bird's eye view of Fair Use, a concept that many artists know about but don't generally understand.  In that article, I said that Fair Use is "extraordinarily dangerous" when misunderstood and that if you're going to use someone else's copyrighted work, you're better off asking for permission.  Whereas that article was all about discussing the elements that make up a fair use claim, this article will elaborate on why asking permission is better than begging forgiveness.  And, as I often do, I will illustrate why with a story from my early producing career.

*****

I was on the second week of a location shoot somewhere near Bowdoin, Maine and I was looking for an eye-catching outdoor backdrop in front of which to film a conversation between our on-air personalities.  We drove around for what felt like hours looking for a suitable location and discovered that if there's anything  Maine lacks in multitudes, it's eye-popping outdoor backdrops.  Fortunately, we found our way to a quasi-civilized area and parked in front of a deli with a colorful and swirly logo.  Since we weren't going to film inside the deli, I decided not to ask for permission to film the logo.  Here's why:

1. We weren't bothering the deli owner or his customers.
2. We weren't on the deli owner's property.
3. The logo, while conspicuous, was in the background.
4. We would be there for a total of five minutes and the scene, when edited, would last ten seconds.
5. The show's format required a lot of driving, which meant that much of the filming took place inside a car... I was desperate to break up that monotony.

These were all bad reasons.  It didn't matter that we weren't in anyone's way, that we weren't on private property, or even that we'd be gone before the traffic light changed from yellow to red.  On the off-chance the owner saw his logo on TV, we would be, in the words of our in-house counsel, "royally buttf***ed."  He could sue us for copyright infringement, and while the issue was in dispute, we wouldn't be able to use the scene.  Either the show would be pulled from all future time slots - causing a significant problem for the network since ads are sold weeks and months in advance - or we would have to reshoot the scene and cut it into the show, which is the kind of expense that can only be made after firing an unwitting associate producer and using his salary to cover the cost of the reshoot.

Which isn't to say we would lose a lawsuit if the owner decided to sue.  This was a straightforward a case of fair use because it met all the requirements under the law.

1. The use was transformative because it didn't comment on the logo or the deli.  It was simply a tacit acknowledgment that the deli existed.
2. The use was non-commercial (even though the show was made for commercial reasons, that profit didn't arise due to use of the logo).
3. The use was minimal since it was in the background of a scene lasting no more than ten seconds.
4. The use did not negatively affect the market for the deli - if anything, I figured it was a bit of free advertising.

But that didn't matter.  As our lawyer explained to me when I returned from the shoot, getting sued and then winning (by successfully defending on a fair use defense) was still a loss because the amount of time and money required to defend ourselves would never be recouped.  If I had asked for permission, the best case scenario was that we would be allowed to film the logo.  The worst case scenario: the owner would either charge us a licensing fee, or say no outright and we would have to film somewhere else.  Either way would have been easier and cheaper than plodding through arbitration hearings or waiting to see if a judge would buy our fair use argument.

Lucky for me, history didn't pan out that way.  The owner was alerted to the sight of several video cameras milling around near his property and came to investigate the hubbub.  Even though I was a lowly associate producer, I was the only one in charge at that moment, so I took full responsibility (which mostly looked like groveling and blaming the cameraman).  Ultimately, the owner approved of what we were doing and signed a release for the logo.

*****

For artists, it's tempting to throw the dice and assume that you won't be sued.  Suing for copyright infringement is damn hard, and requires registration with the Copyright Office.  And many of those that threaten to sue are either bluffing or have dramatically underestimated the cost of following that threat all the way through.  But as a lawyer, I can tell you that despite all that stuff being true, taking the risk is still not worth it.  For every empty threat that gets made, I can point you towards a legitimate copyright lawsuit.   And when the time comes for you to actually beg forgiveness, it never works - especially with corporations.

You should always always always ask for permission because even if the copyright owner says no, that loss is nothing compared to what you'll lose if you wind up defending yourself in court.  Because even if you successfully make a fair use argument, it's still a loss.  As an artrepreneur, your money is time - and that should be spent making and selling your work, not defending yourself in federal court.

So the next time you find yourself wanting to use someone else's copyright work in your own art, ask them for permission.  The worst thing they will say is "no."  Compared to a years-long legal battle, that's not such a bad thing.

Death of the Unpaid Internship, Part 2: Black Swan's Revenge

Two weeks ago, my wife and I were driving home from an unsuccessful apartment hunting trip.  In an attempt to get my mind off the stress of looking for a new home, she asked me what I thought about the recent ruling in the Black Swan internship case.

For those who don't know: Eric Glatt and Alexander Footman, two interns who worked on Darren Aronofsky's Black Swan sued the film’s distributor Fox Searchlight, claiming that the company’s unpaid internship program violated minimum wage and overtime laws.  They argue that they were wrongly classified as unpaid interns when they should have been paid employees.  Well about three weeks ago Federal Judge William H. Pauley III ruled in favor of Glatt and Footman, stating the two should have been paid for their work, and the failure to pay them was a violation of the Fair Labor Standards Act (FLSA).  In his opinion, Judge Pauley said that Glatt and Footman

worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training. The benefits they may have received - such as knowledge of how a production or accounting office functions or references for future jobs - are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer. They received nothing approximating the education they would receive in an academic setting or vocational school. 

Which essentially means that Glatt and Footman did not fall under the federal definition of "intern" and should have been paid as employees as a result.  Judge Pauley went on to say that even though Glatt and Footman knew what they were signing on for, the FLSA

does not allow employees to waive their entitlement to wages.... An employer is not to be allowed to gain a competitive advantage by reason of the fact that his employees are more willing to waive [FLSA claims] than are those of his competitor.

You can read the whole decision here if you like.  It's a pretty big deal and I'd be lying if I said I didn't make a celebratory fist-pump when I read the news.  [For the record, I'm only talking about internships taken by non-students, not educational internships, or volunteerism/ pro bono work]. I've made it known in the past that I'm no fan of the unpaid internship for adults who are no longer in college, which is why my wonderful and patient wife didn't bat an eyelash when, stressed out from looking at a string of ugly apartments, I snapped back, "Any company that refuses to pay employees for their work doesn't deserve to exist!"

That's a pretty militant proclamation and having some distance from the heat of the moment, I've decided that I support the content, even if the delivery and word choice don't properly communicate how I truly feel.  I shudder at the idea of being labeled an anti-corporate socialist (although I'm sure someone will accuse me of it), so allow me to clarify my stance.

1. Unpaid internships for non-educational purposes are bad for employees because experience cannot pay the rent.
2. Unpaid internships for non-educational purposes are bad for the market because they force entry-level workers to work for nothing, suppressing wages for everyone up the ladder, and thus reducing taxable and spendable income for workers.
3. Unpaid internships for non-educational purposes are bad for our culture because they perpetuate the [absolutely wrong] belief that being taken advantage of is somehow the same thing as "paying your dues."

When a company elects not to pay an intern while profiting off his or her work, that tells the world that it's okay to get something for nothing, and that's not how capitalism is supposed to work.  I know first-hand what Glatt and Footman have gone through, taken advantage of and then cut loose.  The last time I wrote about this, a friend asked me if it was okay to accept an unpaid internship in the same industry she had already been working in for several years.  She had just moved to a new city and was concerned that she was an unknown commodity in her new location, despite her years of experience.  To her, the unpaid work would be a good way to break into the industry in that city and build a name.  While I understood her thought process, I strongly disagreed with her and told her to hold out for actual paying work.   To me, her willingness to go without pay signaled something rotten about how exclusionary our industries have become (especially the glamour industries like entertainment, publishing, and fashion), even to people who have experience within those industries.  Here is someone with six years of direct expertise in her field, who has skills that are immediately transferable and applicable, yet she felt that her only recourse was to start over from the bottom, as if she were a 19-year old freshman.

The longer I think about it, the less flexible I become on the matter.  Are there ever good reasons to accept unpaid work?  I'm sure someone will argue that building a reputation at the beginning of a career is a worthwhile excuse.  A few months ago I might have even been convinced.  Obviously every free-thinking adult should consider all the options before committing to a potential income drought and weigh those options based on the facts of each individual situation.  But looking at it from the macro view, I find those arguments unconvincing in the light of Judge Pauley's ruling - I personally believe you're better off finding a mentor and/or developing your own projects... you're going to be unpaid anyway, might as well develop some entrepreneurial skills while you're at it.  That's why I align myself behind the FLSA standards (found here) and feel comfortable stating categorically that unpaid internships are only acceptable when done for college credit and in conjunction with a legitimate educational institution.  The rest of the working world is starting to catch up too.  Two weeks ago, three former interns sued Gawker Media for violating the FLSA, and a few weeks before that, a former Condé Nast intern sued the company for paying her $1.00 an hour under its internship program.  Hell, one law firm is specializing in these Fair Labor internship cases by identifying individuals who held unpaid internships and reviewing the conditions of their employment for possible wage-and-hour violations.

So this is all good news right?  Well anything is possible.  It's certainly possible that the Black Swan case and all the subsequent unpaid internship cases might cause a sea change in the way employers run their internship programs.  It's possible that they'll start paying interns for their work.

But I don't really think that's going to happen.  My fear is that the current system will just continue to lurch forward in spite of the Black Swan ruling.  Or worse, companies will strip out any real work or educational opportunities and relegate interns to picking up coffee, dry cleaning, and lunch orders.  Lord knows there are enough people out there willing to bet that an unpaid internship is a lesser evil than complete and utter unemployment... I can understand that.  But the system only changes if we all make the commitment together.  I hope Glatt and Footman's win is the beginning of that change.