Weird Al and Parody: Why It's Better To Ask Permission Than Beg Forgiveness

There’s a saying that’s become popular in recent years: "it’s better to beg forgiveness than ask permission.” There’s a lot of appeal there for the Type-A, take-charge types and I completely understand it... if you want results, just do it since apologizing after the fact will be easier than fighting through red tape beforehand. Grace Murray Hopper, a former Navy admiral coined the term and you can see why. She was a career military woman and computer scientist and likely spent a great deal of time fighting through bureaucracy and institutional misogyny to get anything done.

In that context, the phrase has a lot of cache. As a lawyer who advises artists, however, I think it's a one-way ticket to bankruptcy. I've said as much before, but I bring it up again because Weird Al Yankovic is back with his latest album Mandatory Fun, and as always happens when Weird Al resurfaces, people are amazed to discover that he asks permission from other artists to parody their songs. Here's a snippet from a recent NPR interview with him:

NPR: Is it true that you don't need permission to do a parody of a song?

Weird Al: Legally, I say it's a gray area. I could get away with not getting permission, but I've never wanted to get away with that. I think it's more taking the high road to make sure that the artist feels like they're in on the joke. I want them to know that it is in fact an homage, it's a tribute. Like I say, it's more a poke in the ribs than a kick in the butt.

Not only is that an ethically sound practice, but it’s also correct from a legal standpoint. It’s generally understood in the entertainment world that parody - the art form Weird Al trades in - is considered fair use (i.e. it's not considered infringement under U.S. copyright laws). That's because a parody is designed to poke fun of a work of art rather than directly profit from it.

HOWEVER! That’s not the whole story. There are gray areas when dealing with fair use, and Weird Al gets that. He knows that parody alone doesn't give him unlimited permission to use someone else's copyright without permission. There are other factors weighed by the courts in determining if something is fair use, such as the commercial nature of the parody (i.e. is it financially profitable?), and the effect it has on the market for the work that's being parodied (i.e. does the mere existence of the parody cause consumers to stop buying the original work?). Depending on these and other factors, Weird Al knows that his work could, in some situations, be considered copyright infringement.

So he doesn't leave it up to chance and say "Whoops my bad" whenever he gets caught. He asks permission up front and if an artist refuses, he doesn't parody the work (here's a list of artists who refused to let Weird Al parody them). What Weird Al knows - and other artists out there would do well to remember - is that when your livelihood depends on using the copyrighted works of others, sometimes it's truly better to ask permission than to beg forgiveness. With money on the line, they may not be so inclined to forgive you.

What My Wife's Pregnancy And Derivative Works Have In Common

Three weeks ago, Steph and I decided to publicly announce that we're expecting our first child (September 1st, dear readers! Mark your calendars). It was crucial to us that the announcement be memorable and fun, and almost immediately, Steph hit upon the idea that the announcement take the form of a movie poster. I'm a film buff after all, so I think she knew I couldn't say no. My initial concept was to do a horror-themed one sheet in the vein of Saw, but Steph didn't like the idea of equating our bundle of joy with murderous psychopathy, so we quickly settled on another well-worn trope: the bright, colorful, goofy posters for terrible Matthew McConaughey romantic comedies like Failure to Launch, or How to Lose a Guy in 10 Days. The poster would feature us against a white backdrop, Steph as the beautiful, glowing mother-to-be, while I acted the part of the hapless but gold-hearted man-child.

Concept in hand, we hired a friend and professional photographer, Alex Jones, to shoot the poster. I wanted this thing to be perfect and my camera gear - an iPhone 5 - wasn't exactly going to cut it. I also knew Alex could deliver what I was looking for with minimal direction; he did my headshots last year and those were universally praised. As expected, Alex's poster shots went above and beyond. And after two days of experimenting with layouts, fonts, and colors, here's what we came up with:

The announcement was a big hit with friends and family and it was also a creatively satisfying experience. So why am I telling you this? First, I'm proud of the way the poster came out and I just want to brag a little. Second, I thought the poster was a good example of the weird world of "derivative works."

A derivative work is an adaptation, translation, or modification of an existing copyrighted work. You see them all the time without even realizing it. A film based on a book, a photograph of a sculpture, a cover of a song, an English translation of a Russian novel, a collage of cat meme pictures... all of these are derivative works. And with the internet providing unlimited free access to all sorts of visual content, it's become pretty easy to build a career as a derivative work artist. As a result, I frequently get questions from collage artists and photographers asking where the line is when it comes to using the works of others in their own work.

Unfortunately for them, that line is pretty clear; the only person allowed to make a derivative work of the original is the owner of the original! It's codified in our copyright law as an exclusive right, which means that if you author a derivative work without permission of the copyright owner, you could actually be liable for copyright infringement (exception: photographing or painting exterior structures like buildings and sculptures for commercial gain are generally not copyright infringement if the structures are easily visible from a public place). Without that permission, your only recourse is the fair use doctrine, which I've been pretty vocal about being a lousy way to get out from under a copyright infringement claim.

To complicate matters further, if you author a derivative work, you will own the copyright in the parts of the work that are unique to you, even if the derivative was unauthorized. The original copyright, of course, will still remain with the owner. This weird overlap can lead to some sticky situations with both parties claiming some copyright interest in the work and neither being able to profit off the other's creation.

So looking at our faux-movie poster, how does this dynamic play out?

1. The copyright to the original photograph rests with the artist. Contractually, Alex maintains the rights to all his photos unless he conveys them away. The only right I possess is the right of non-commercial display (meaning I can show people the photo but I can't resell it).
2. The modifications I made to turn the photo into a poster do not constitute copyright infringement in this case because I had permission from Alex - I hired him specifically to carry out a preexisting vision - and because I'm not making any money from it. If Alex had not given me permission (either explicitly or implicitly), I would have been liable to him for copyright infringement.
3. While Alex owns the copyright to the photo, I own a copyright interest in the overlay changes I made to transform his photo into a movie poster. Yes I can actually claim a copyright in the layout, the wording choices, the color choices, and the overall aesthetic effect of the piece.

You'll notice that a big reason I'm safe is because I'm not making money off the poster. That, obviously, is no consolation to a working artist who needs to make money to survive. So my blanket piece of advice for artists who rely on the works of others to create their own: do your best to get permission, use older work that's in the public domain, or avoid using preexisting work altogether. And if you're not interested in that, please talk to a lawyer to see if your intended use is protected by fair use.

Ultimately, I think your time is better spent creating new work rather than defending yourself on an infringement claim because you used old work.

[Author's Note: I don't actually know Judd Apatow and A.O. Scott.]

Copying is Copying: Homages, Tributes, and Fanboyism Are Dangerous For Artists

As far as the law is concerned, copying is copying, no matter how noble your intentions.

I'm an artist too, so I get it. We are constantly bombarded by stimuli, so it's hard not to be inspired by those images. And it's even harder to avoid relying on those images when we make our own work. My advice is to try even harder than that. Because, unfortunately, copyright holders (often, but not always, large corporations) are less inclined to care about why you copied them and more inclined to sue you into oblivion if that's what they feel is required to protect their work.

Case in point: last month, a Boston-based company called Autonomie was sued for trademark infringement by Converse for making a sneaker so similar to Converse's iconic Chuck Taylors that it's nearly impossible to tell the two apart (the shoe is actually manufactured by a British company called Ethletic). Here are the shoes side-by-side.

But this isn't just ripping off for the sake of ripping off. Autonomie is all about using eco-friendly materials and fair trade practices so as to produce "high-quality garments at competitive prices to consumers that wish to make purchases with a social and environmental impact without having to sacrifice their own personal style, or break their wallet."  That's a pretty good reason, right? Too bad. The law says this is trademark infringement because there's a high likelihood that the two shoes would be confused with each other, thus steering profits away from Converse. In trademark law, this is called "blurring." Autonomie's reasons may be noble, but noble doesn't go very far in court.

Remember the whole Robin Thicke/ Marvin Gaye copyright infringement situation that came up a few months ago? Thicke was so inspired by Gaye's work that he wanted to make a song that sounded like something Gaye himself might have written. The end result was that Thicke's fanboyism got him in a legal tussle with Gaye's family.

The reasons for copying rarely matter from a legal perspective. There are very few mechanisms in the law that allow it, and they only apply in certain situations. Fair use, is the most commonly used exception but the only way to find out if it protects you is to get sued, go through months of litigation and thousands of dollars in legal fees, and find out in court. As far as I'm concerned, getting sued and winning is the same as losing because the amount of time and money required to defend yourself would never be recouped.

Copyright holders don't care what your reasons are. They only care if your work will take money out of their pocket. So don't pay homage. Don't pay tribute. Don't use the copyrighted works of others unless they give you written permission. If they don't give you permission, be creative and find another way to express yourself. Be original always in all ways, because copying someone else, even if your intention is to honor them, is the quickest way to get legally smashed. And instead of making art, you'll be paying off copyright fines.

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.]

Fairly Useful: Why Fair Use Is A Simple, But Dangerous Legal Doctrine

I always knew that I would get around to writing a post on Fair Use much like I did a few weeks ago with the Work For Hire doctrine.  If I'm being honest, I should have done this a long time ago.  I have a fluctuating list of 15 to 25 topics for this blog and Fair Use has sat squarely at the top for almost six months. The only reason I neglected it: a healthy man-sized dose of procrastination (by which I mean I was more interested in writing about other topics).  But two things happened this week that made me realize I had to finally tackle the purple-fanged monster sitting at the top of my list.  First, I was asked by several readers to discuss Fair Use in greater depth than I have in the past.  And second, I was accused by a reader (who is not a lawyer, by the way) of not understanding how Fair Use works, an allegation that made me so mad I almost hulked out.  I'm certainly not perfect (my wife will regale you with stories confirming this fact), but I can guarantee you that if I'm writing about it on this blog, then I know what I'm talking about.

So in an effort to prove that naysayer wrong and shore up my ego, here's my take on what you need to know about Fair Use, a widely misunderstood doctrine that is used by artists and non-artists alike, oftentimes without even realizing they're doing it.

What is Fair Use?

Normally, when you use someone's copyrighted work without permission, that would constitute copyright infringement (only the owner has the exclusive right to reproduce, sell, or otherwise use their work) and you could end up having to fork over a handsome fee to the copyright owner if you're sued and you lose.  However, Fair Use is a legal defense that you can assert in certain situations that gets you around that pesky infringement thing.  In essence, Fair Use allows you to legally use someone else’s copyrighted work without their permission.  That's all it is.

But while the general concept of Fair use is easy to understand, it's not always easy to apply in practice.  That's because, like most things in the law, there's no hard and fast rule about it.  You have to apply a number of different factors (four of which are used regularly) to the situation and balance them against each other.  I've listed them below in their original Legalese, along with  modern English translation:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
   • English Translation: What is your intended use of the original work? Profit?  Parody?  Education and criticism?  Has your use transformed the expression or meaning of the original work?  Profit is generally frowned upon, but parody, education, and news reporting/criticism are more likely to be given Fair Use protection (without Fair Use,  CNN would get sued every hour of everyday). The more your use changes the original work, the better a Fair Use defense will be.
2. The nature of the copyrighted work
   • English Translation: Is the original work published or unpublished?  Fiction or Non-fiction?  Fair Use is generally more applicable if the work is non-fictional (based on facts) or published.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
   • English Translation: How much of the original work are you using?  All of it? Some of it?  The less you use, the more likely you can assert Fair Use.
4. The effect of the use upon the potential market for or value of the copyrighted work
   • English Translation: Does your use deprive the copyright owner of income or undermine a new or potential market for the copyrighted work?  Basically, if your use can take money out of the copyright owner's pocket (even if you're not using it for your own personal financial gain), then that's infringement.

I could spend days discussing each of these factors in greater depth, and maybe at some point down the line I'll devote individual blog posts to the vagaries and intricacies of each one.  For now I'll just say that none of these factors intrinsically carry more weight than the others and judges have a lot of discretion over how to balance them.  For instance, a lot of people assume that if they don't profit from the use of someone's copyrighted work, that will be enough to allow them to apply Fair Use.  But some courts have de-emphasized the importance of financial gain; if the copyright owner's bottom line could be negatively affected, then using their copyright can still be infringement (and thus not Fair Use) even if the infringing party never makes a cent.

Misconceptions

Like the profit issue I just mentioned, there are a bunch of  other misconceptions people regularly make about Fair Use, so I thought I'd mention a few of the more common ones here.

1. Acknowledgement of the source material will give you Fair Use protection.  Not even a little bit.  While it's a good CYA move to credit the artist/author/copyright owner anytime you use their work (whether you asked for permission or not), simply giving them credit doesn't get you off the hook.  You can still be sued for infringement and found liable, based on how the factors above are weighed.
2. The copyright owner can prevent your Fair Use of their work simply by adding a disclaimer.  Also not true.  In the past I've seen artists try to prevent unauthorized use of their works by attaching a note or disclaimer saying something to the effect of "this work is not subject to Fair Use."  Um, yeah buddy, it is.  Sorry.  Fair Use is always applicable and takes precedence over the author's desire, assuming of course that your use falls within the above-mentioned factors.
3. If you copy the entire work, you don't get Fair Use protection.  Like I said before, the amount of the work used is only one factor that is considered.  Now using the entire work certainly won't help you and I generally advise against it, but depending on the other three factors (especially if your use transforms the meaning or expression of the original work), your may be able to use the whole piece and have that be a Fair Use.
4. Fair Use will prevent you from being sued.  NOPE!  This is probably the biggest mistake I see people make and it's an assumption that makes Fair Use extraordinarily dangerous, so watch out.  Do not assume that Fair Use is some "get-out-of-jail free" card that will protect you from litigation.  Fair Use does not prevent you from being sued.  Ever.  Fair Use is what lawyers call an "affirmative defense" and it can only be asserted after you've been sued.  This is why it's really important that artists don't rely wholesale on their understanding of the doctrine, even if they're right!  While Fair Use can be an effective tool, it can only be exercised once you're in the middle of a legal kerfuffle which will cost you lots of time and money.

As with many of the topics I discuss on this blog, I over-simplified here and left some stuff out for the sake of brevity.  My goal here isn't to give you a Master's level understanding of the details and intricacies of Fair Use - or any legal doctrine for that matter.  Rather, I'm trying to make you aware of the forces you play with when you use someone else's copyrighted work.  Whether your use of something qualifies as Fair Use actually depends very heavily on the specifics of your case.  And even if you think your use qualifies for Fair Use protection, don't simply make that assumption and leave it there.  Ask for permission to use the work, and if you elect not to ask permission, seek professional legal advice to see if your intended use is covered by Fair Use.  

Fair Use is no mystery, but if you don't treat it with respect, it can do irreparable harm to you.  Just ask Shepard Fairey.