Sherlock Holmes Enters The Public Domain And George R.R. Martin Does A Happy Dance: Why Longer Copyrights Might Be Better For Artists

Eight months ago, I wrote this article describing why it would be a good thing if Sherlock Holmes entered the public domain. The premise of the article was that long-living copyrights are harmful to artists; they stifle innovation and creativity and incentivize large copyright owners to pursue legal action against even the most minimal use of their copyright. By shortening the copyright lifespan, the monetary value of  properties like Sherlock, would drop, making them less appealing and thus motivating artists to create new works instead. Simultaneously, copyright lawsuits against infringers would drop, keeping smaller independent artists out of court.

Well, last week I got my wish. According to a federal judge in Illinois, Sherlock Holmes and all elements of his character created prior to 1922 are now in the public domain, which means that anyone in the U.S. (but not the U.K.) can write their own personal Sherlock fanfic and profit from it without paying the Conan Doyle estate it's traditionally hefty fee. So, happy Greg, right? Well maybe not. A strange thing happened on the way to victory... I sort of changed my mind.

George R.R. Martin's hatred of fan fiction had something to do with it. In a recent interview, Martin said this in response to a question about his refusal to license Game of Thrones for use in fan fiction:

 [O]ne thing that history has shown us is eventually these literary rights pass to grandchildren or collateral descendents, or people who didn't actually know the writer and don't care about his wishes. It's just a cash cow to them. And then we get abominations to my mind like Scarlet, the Gone with the Wind sequel. 

I've always admired Tolkien and his immense influence on fantasy.  Although I've never met the man, I admire Christopher Tolkien, his son, who has been the guardian of Tolkien's estate who has never allowed that. I'm sure there are publishers waiting in the wings with giant bags of money just waiting for someone to say, "Yes, go ahead, let's write Sauron Strikes Back." I hope I never see Sauron Strikes Back written by some third-rate writer who leaps at the opportunity.

His reasoning makes sense to anyone who has created something worth stealing: he wants to protect the integrity of his creation. Which is pretty easy while he's alive. He can approve or deny any licensing request that he thinks might dishonor the work. But what about after he dies? How do you ensure that the people who become guardians of GoT can protect it the way he wants? Part of the answer, I think, is to make copyrights indefinite, preventing them from entering the public domain. This would effectively turn them into business assets (much like trademarks). For some artists, this could be beneficial.

For the record, I still believe it's important to prevent unnecessary infringement lawsuits and spur innovation - remember, the Constitution supports the protection of copyright for the public good, not just for personal financial gain. For those reasons, I would still support shortening copyright durations. But Martin's words made it clear to me that these aren't the only issues that matter. Isn't artistic integrity something the law should be protecting as well? After all, artists don't just create for the money or recognition. They are driven to create because they have something to say. If an artist can protect the integrity of the work over time, that gives the work greater meaning. Conversely, if copyrights are shortened, the meaning behind the work suffers. For Martin, shorter copyrights would mean those "third-rate writers" would be granted unfettered access to GoT that much sooner. You can see how unappealing that would be for him.

Martin's not alone either. In the late 90's, Disney was on the verge of losing the rights to some of Mickey Mouse's earliest films. In order to prevent them from entering the public domain, Disney lobbied Congress to extend copyright durations. Their efforts paid off in 1998 when Congress passed the Copyright Term Extension Act (referred to derogatorily as the Mickey Mouse Protection Act), which extended the lifespan of all copyrights in the process: individual copyrights were lengthened from life of the author plus 50 to life plus 70, while works of corporate authorship were extended from 75 to 120 years. Time, however, catches us all, and Disney's copyrights will start expiring as early as 2017, so you can bet good money that they'll put the full-court press on Congress to extend copyright terms again. As long as Disney stands to lose its most valuable commercial asset, copyright terms will continue to grow. And the longer Disney has the power to lobby, the more likely copyrights will eventually gain perpetual life. In the not too distant future, Disney may have the right to Mickey Mouse in perpetuity.

But is this inherently a bad thing? I'm not so sure. There are numerous examples of long-term guardianships protecting the integrity of their properties. There's Christopher Tolkien refusing the license any of his father's work for film or television (the elder Tolkien sold the film rights to The Hobbit and Lord of the Rings back in 1969). There's the Conan Doyle estate ensuring that all filmic versions of Sherlock meet the owners' high standards. There's also the Broccoli family maintaining a tight control over the James Bond film franchise for the last 50 years. Say what you will about the quality of any individual work, but no one could argue that these owners have anything less than the integrity of the source material at heart.

In any legislation there are trade-offs, with different issues being important to different stakeholders. For some, protection against big corporations is the most salient issue; shorter copyrights make sense for those people. But for someone like Martin, who has created a sprawling world that is financially viable and popular enough to have imitators, it makes sense for the law to protect the quality of the work. That could mean Martin and his heirs own GoT forever.

So maybe, just maybe, I was wrong about the value of longer copyrights. But no matter what, this isn't an issue that can be settled in a single blog post by lil ol' me.

When The Movies Get It Right: A Great Artist Makes A Bad Business Decision In A Great Film, a.k.a. The Curse Of Llewyn Davis

[Potential Spoilers Follow for Inside Llewyn Davis. Be warned.]

If you’re a working artist, Ethan and Joel Coen understand you. Inside Llewyn Davis is a movie by artists, about artists, for artists. It is sad and soulful, angry but thoughtful, bleak yet hope shines in around the edges, and is totally, utterly understanding of the trials and tribulations you go through.

Oscar Isaac is stunning as the eponymous, transient hero. Seriously stunning. His Llewyn is a homeless bounder, sleeping on friends’ couches night by night, carrying nothing with him but a guitar and a cat, trying to pick up gigs and cash wherever he can.  Unmoored by the untimely death of his singing partner, he is still creatively vibrant, but unable to parlay that into a meaningful solo career. As the movie takes pains to show, he’s no Bob Dylan.

Several times throughout the film, Isaac's performance brought me nearly to tears because I’ve been him. Obviously not in the particulars of his life, but the way he shows the dogged pursuit, the endless failure, and the devotion to the craft despite it all are so familiar it’s scary. We have all experienced that crushing weight when your last best hope for a paying gig (and maybe your entire future) tells you “I don't see a lot of money here” and sends you packing. Maintaining the integrity of your art is difficult enough, but when you add commerce to the mix, how do you ever reconcile the two? This movie is about that very paradox (lest I make the movie sound like a relentless downer, rest assured; as with other Coen Bros films, this one is ferociously funny).

There’s a scene midway through the film where Llewyn signs away royalties and the right to be credited on what turns out to be a popular and financially successful song because he needs the money N-O-W. He’s got expenses to pay and places to be and he can’t sit around waiting for a royalty check to come, if it ever does. I’ve never done that but I know people who did, and the way the scene is played - Llewyn doesn't even take a moment to consider the potential windfall at his fingertips - rings so true that I couldn’t let it lie, I had to write about it.

It’s been going on as long as artists have tried to profit from their art. In perhaps the best known example of this, two Jewish kids from Ohio sold their little-known comic book character to a publisher in the 1930s for 130 bucks. That hero turned out to be Superman and the publisher, DC Comics, made millions while Jerry Siegel and Joe Shuster died penniless. 75 years after Siegel and Shuster were scammed out of the most iconic creation of the 20th century, their estates are STILL fighting with DC Comics over the rights to the character.

As someone who advises artists in manners of law and business, it’s easy for me to sit here and tell you to take the long view. You never know when something you work on will hit big, so it’s better to plan for the future, right? Of course it is! But who can ever know if that will happen? The odds of that kind of success are frankly against you, and plus, you have rent to pay, so why not take the money now?

That’s what Inside Llewyn Davis gets to its very core. That the life for artists is messy and filled with dire financial obligations (a friend of mine coined the phrase “adulthood is a never-ending series of urgent expenses”). The only person who can control how you get paid is you, and like Llewyn, you’re often making that call while shouldering the weight of the world. If there is a lesson to learn here, it’s that you should try to mentally detach yourself from your obligations in order to make a good decision. That may not be easy or even possible in some situations, but there you go.

You can't know if your work will be successful; the only thing you can control is your decision-making process. So find a way to control it. Llewyn didn’t because he’s a hot head. That kind of passion makes him a great artist, but it’s also why he’s essentially a bum.

[P.S. If you can’t tell, I loved the film. You should see it.]

On Being Nice

Last week, I wrote this article about ways to fight back against infringers that didn't require commencing a lawsuit. It was well-received and widely read. In that article, I threw in a blurb describing why you should be nice to your adversaries and how doing so could lead to a better legal outcome for you. To my surprise, I got a lot of pushback on that. Several readers found the advice to be downright controversial. Their general view was "I'm the victim, so why do I owe it to someone who stole from me to be nice?"

It's a legitimate point and hard to argue against. But I'll try anyway.

From my seat, being nice makes practical sense. Judges and juries are people too, and like us mere mortals, they're susceptible to all sorts of biases. And since these are the people who will determine your legal fate, you want them to LIKE YOU. Making an effort to show magnanimity in light of your victimization can do just that. It's really that simple. "But Greg, it shouldn't matter if I'm likable. The judge and jury have a civic duty to do justice even if the victim is a jerk." Yes, absolutely right. Except the law is never as one-sided as it appears from your side. While you may feel victimized, it may in reality be a gray area. Most cases fall closer to the middle than any one side, which is why your appearance, your attitude, and your facial expressions may be enough to sway a jury your way (or not).

I'm not saying you have to be friendly to your adversary. I'm not saying you need to walk over to him in front of the jury, shake his hand, and call him your mate. But neither should you rail against him, call him names, and undermine him. Let your arguments stand on their own without interference from your emotions. You can - and always should - be direct in your dealings when it comes to legal matters, but that doesn't preclude being nice either. In a legal setting you will be adversaries, but that doesn't mean you need to be enemies as well.

Here's another reason. We have a real kindness deficit in this country. American culture is adversarial by design (our government and judicial systems were built on principles of adversity, as juxtaposed with the British system, which is inquisitorial) and when it goes unchecked, it can make us meaner, less trusting, and more litigious. It can lead to situations like one I experienced today. A young Hispanic man approached me while I waited for my train at Back Bay Station in Boston. He smiled and introduced himself in broken English. He showed me his cell phone and told me it wasn't working, and he began to ask if he could make a call on my phone. Before he finished his statement, I pointedly told him "No!" It took him a few moments to register my denial and he sputtered out a few more words before looking dejected and shuffling off to ask someone else for help. Before he left, he meekly thanked me for my time.

I was immediately crushed by how casually cruel I had been. I shut him down before he could even ask for help... how easy it was for me to be so dismissive and disrespectful to someone I didn't know. And the more I thought about it, the more I realized that none of my rationalizations withstood any kind of scrutiny. Yes, I didn't know him. Yes, I didn't trust him. Yes, he might have stolen my phone. But so what? I can afford a new one. I can easily wipe the memory of the old one from my computer so sensitive data couldn't be accessed. Assuming I was right to distrust him, what was I was protecting anyway? I was so disrespectful to someone I had just met, imagine how effortless it would have been if I had actual animosity towards him.

Being nice takes work, it takes effort. It's especially hard when you think someone has wronged you and your instinct is to treat them like the worst rat bastard that ever lived. I ask you to take the higher road; don't act like I did today. Be the better person and treat your adversary with respect. That's how you win allies in and out of court. BE NICE. Because even if you lose your case, you can at least walk out of that courtroom with your head held high.

Reading Contracts Sucks But You Should Do It Anyway Or MTV Will Broadcast Your Address To A Million People

Let's do some role-playing. Pretend you're a young man named Tristan Watson who has agreed to participate in an MTV reality show called True Life: I'm a Chubby Chaser, a doc about men who prefer dating large women. Let's also pretend you agree to do the show on the condition that MTV withholds your identity, referring to you only as "Tee" during the broadcast. This agreement is made via handshake, but the anonymity clause is never incorporated into the final written contract, which you sign. Once the show airs, you discover that not only is your full name used, but MTV also broadcasts your address and even your apartment number. You receive death threats and you lose your job. You sue the network for lying to you about its promise of anonymity and for all the harm it has wrought in your life, but because the contract also includes an agreement that you "will not sue the network for any reason," you lose big time.

Sadly, this is no game. There is a real Tristan Watson and everything I just said actually happened to him. Watson's experience is not a novel one. Contracts that broadly favor one side happen quite a bit in the entertainment world where one party (i.e. MTV) has considerably more bargaining power than the other (i.e. Watson). These lopsided contracts are even more prevalent in the nonsensical world of reality TV, where American teens will sign away their birthright for a chance to become a celebrity and the networks make absolutely no attempt to be reasonable in contracting with said teens. Unfortunately for Watson and those like him, even if the contract hadn't contained a promise not to sue, there are two inter-related concepts in contract law that ensure he was destined to lose his lawsuit against MTV.

1. Absent extraordinary circumstances such as fraud, U.S. courts presume that every party to a contract has read and understood the terms. So pleading ignorance when you discover you agreed to something you didn't intend almost never works. Had Watson taken a few minutes to read the contract before signing it, he would have discovered that the anonymity clause was nowhere to be found and might have avoided the drama following his appearance on True Life. This is a shining example of why you should always always always read your contract, even the ones you write yourself.
2. In situations where two parties agree verbally to a term, but never actually integrate it into the final contract, that term is not considered valid once the contract is written and signed. This is called the parol evidence rule, and it's almost impossible to overcome if incorporating that term would change the contract.

Look I get it. Reading contracts is no fun. They're boring, they're long, they contain a lot of junk, and they're usually written in legalese, making them tough to understand. Believe it or not, lawyers hate reading contracts for the same reasons. It's true! Why do you think we charge you so much money to draft and review your agreements? Because it sucks!! That's why mobile apps specializing in generating simple contracts (like Shake) are making a big splash nowadays.

Sucky or not, however, there's no getting around it. Whether you're a high-bargaining party or a low-bargaining party, then only way to preserve your interests is to get comfy reading contracts. There's no better way to ensure that harmful provisions weren't snuck in there when your back was turned. Because once you put your signature on that piece of paper, that's all she wrote my friend. You are bound to the terms in that contract whether or not you read it.

[Author's Note: I should add that if Watson could prove MTV acted fraudulently, the entire contract would be invalidated, including the promise not to sue the network. Since Watson lost his lawsuit, I'm guessing that he couldn't meet that burden.]

Ask Greg: How To Fight Back When Someone Has Infringed Your Work

Q. I recently discovered that someone was selling T-shirts featuring my illustrations. They've credited me as the artist on their website, but I've received no financial restitution and they didn't ask my permission. I want them to either pay me or stop selling the T-shirts altogether. What are my options for getting them to stop?

A. Let's be honest, you don't want to sue anybody. You don't have the time and you probably don't have the money, and even if you did, the effort and emotional toll it takes is astronomical. So before you go down that road, there are some things you can do to save time and money, and hopefully avoid court.

1. Send the infringing party a “cease and desist” letter. You'd be surprised how often people don’t even realized they're infringing someone else's work. Oftentimes, they think the work is in the public domain simply because it's available online. And even when people do infringe your work on purpose, an officious sounding letter is usually enough to make them stop. While you can always draft a cease and desist yourself, it has more teeth if it comes from a lawyer.
2. Negotiate! If you reasonably feel that the infringer isn't acting with malicious intent, give them a call and see if they're willing to talk turkey. You want to get royalties for all T-shirts already sold, and you definitely want to get a fee for all future sales. If this works, it's a classic win-win. They stay in business and you get a financial benefit. At the very least, you'll get a sense of their motives.
3. Use social media to rally people around your cause. This can be a surprisingly effective way to get public support and put pressure on the infringer to do the right thing. You may have heard this story about a graphic designer who wasn't paid for poster designs he made for Spike Lee's newest film, Oldboy. The designer sent an open letter to Lee recounting his abuses. This was a smart choice on the part of the designer. Even though Lee, like most directors, has no role in the marketing of his films (marketing is almost exclusively the domain of the studio), by going right to the top, the designer started creating groundswell. And if he can get Lee to go to bat for him, the pressure placed on the studio could be overwhelming.
4. Lastly, BE NICE, no matter how much of a jerk the other party is. That old saying about catching more flies with honey than with vinegar - it's absolutely true. I can't tell you how many times I've seen victims of infringement get swatted by a judge because they acted like unrepentant assholes. If you look worse than the guy who actually stole from you, you're going to lose, plain and simple. In general, when interacting with a potential legal adversary, you should follow my patented Famous Three Step Rule For Dealing With Infringers: First time be nice. Second time, be nice. Third time, be nice. You can always be direct, but politeness really can make the difference in your outcome.

If you do all of these and the infringer still won't pay you back or cut you in, it's time to sue. Call a lawyer and get that ball rolling ASAP (you have three years from the discovery of the infringement to bring a lawsuit). And if you have anymore questions, don't hesitate to Ask Greg.

Self-Serving Post: Another Day, Another Webinar

Hello Friends,

Next Thursday, November 21st at 6:30pm, I’ll be hosting a webinar on the Ten Legal Concepts Every Artists Should Know, with a special focus on the fair use and work-for-hire doctrines.  This is sponsored by the RISD Alumni Office so it's for RISD alums and students only.  If you're interested (and you must be if you're reading this blog), you can register here.  I implore you to check it out because I’ll be covering really important topics that affect just about every working artist and artrepreneur.  For those who attend the webinar, I'll provide a copy of the slides I use during the presentation.  And for those unable to attend, I'll provide an abbreviated list of the issues discussed in the webinar.

Vince Gilligan Thinks Piracy Helped Breaking Bad, Turns Out He Might Be Right

Vince Gilligan, the genius/ creator/ writer/ director/ dark wizard behind Breaking Bad said this in an interview with the BBC last week:

If I’m being honest I see that the illegal downloading led to a lot of people watching the series, becoming aware of the series who otherwise would not have been... I see that in some ways illegal downloading has helped us, certainly in terms of brand awareness, so that’s a good side.

At first I met this statement with a heavy dose of skepticism. It's not exactly like Breaking Bad went unnoticed for the last six years... it was a monstrous hit, critically and commercially. A cultural touchstone, it's repeatedly mentioned in the same breath as The Wire and The Sopranos as one of the greatest modern television shows of all time. Whatever awareness could be raised by illegal downloads surely pales in comparison to the massive word of mouth and AMC's multi-media marketing push.

But instead of writing another anti-piracy screed like I did last year, I decided to do some research. And against the odds (and my own prejudices), I discovered that Gilligan may in fact be right. Two years ago, the Swiss government commissioned a study measuring the effect of copyright-infringing downloading. The result? Piracy actually does help copyright holders (take that Congress)! The study, released by the European Commission Joint Research Centre, found that users who download content illegally are actually 2% more likely to pay for content because the money they save on illegal downloads ends up getting spent on other content. Additionally, they often use the illegal downloads to sample material before they buy, helping to spread the word about lesser-known artists in the process. According to the researchers:

It seems that the majority of the music that is consumed illegally by the individuals in our sample would not have been purchased if illegal downloading websites were not available to them. The complementarity effect of online streaming is found to be somewhat larger, suggesting a stimulating effect of this activity on the sales of digital music.

It's worth pointing out several caveats: (1) this study is considered highly controversial in a lot of circles, (2) the focus of the study was on music downloads and did not extend to other digital content, and (3) all of the subjects in the study were Swiss citizens who are generally WAY more law abiding than Americans.

Even still, it's a tempting theory. While I'm not convinced illegal downloads could raise much awareness for a show with the brand recognition Breaking Bad has, you can see where this might benefit artists who don't have the reach or cultural cache that Gilligan commands. After all, with increased awareness comes greater financial success.

But that doesn't mean Gilligan approves of piracy:

The downside is that a lot of folks who worked on the show would’ve made more money, myself included. But you know, like with most things, there’s two sides to the coin. We all need to eat, we all need to get paid, and I get paid very well, I can’t complain.

Which is exactly why pirating content is not something I can ever really support. Sure, Gilligan and stars Bryan Cranston and Aaron Paul are making bank no matter how often the show is stolen (the finale was illegally torrented half a million times), but most of the people who worked on that show aren't making Cranston-money. They're working stiffs like you and me. Money not spent on a show they worked hard on is money they don't get to see. And most artists don't ever get to work on something as high profile as Breaking Bad, so they'll feel that loss all the more.

Here's what I wrote last year on this topic and even in light of the Swiss study, I stand by these words:

[W]hen you legitimately purchase copies of movies and music, you’re telling the artist that you support her. You put her in a place financially where she can continue generating the stuff you love.  When you steal a movie or piece of music, you’re telling the artist that you don’t care if she can make a living and you’re threatening her ability to continue generating that work.  Help me keep artists working and put a stop to the torrenting.

Ellen Page And The Strange Case Of The Misappropriated Likeness

It’s been a weird couple of months for Ellen Page, the elfin actress behind Juno. A few months ago, her likeness was stolen for the hit video game The Last of Us. Now, a video game that she actually participated in and lent her likeness to, Beyond: Two Souls, has featured her in a digital nude shower scene, pictures of which leaked without her consent, and which show the whole shebang.

Let's talk about The Last of Us first. Back in June, the video game made a splash, and not just because it was a critical hit. One of the game's main characters, Ellie, looked suspiciously like Page, so much so that people were asking Page if she acted in the game (she didn't). In fact, early concept art of Ellie art didn't just resemble Page, it was clearly her face.  Behold!

The one on the left is the concept art of Ellie and the middle is the version of Ellie that appears in the game, altered to look less like Page. If you're not convinced by these side-by-sides, just google "last of us ellen page" and you'll see comparison after comparison. What's striking is how even after the developer, Naughty Dog, changed Ellie's appearance, she pretty much still looks just like Page.

Anyway, Page caught wind of this and instead of suing the pants off Naughty Dog, she said this:

I guess I should be flattered that they ripped off my likeness, but I am actually acting in a video game called Beyond: Two Souls, so it was not appreciated.

Naughty Dog is pretty lucky Page isn't lawsuit-happy because she has a solid case for Appropriation of Likeness, a tort that prohibits the use of someone's name or likeness for commercial purposes without their consent (in California, name and likeness are actually protected by statute - California Civil Code Section 3344(a)). If she decided to sue, she could put Naughty Dog out of business.

So now we arrive at Beyond: Two Souls, the game that Page actually participated in by doing the voice and motion capture (see pic above) for her character. At one point, the game features a scene with digital version of Page's character taking a shower, all of her lady parts tastefully obscured. Unfortunately,  pictures from a developers-only version of the game leaked out, showing those lady parts in their entirety (Page, of course, did not pose nude for this scene. She filmed her role wearing a mo-cap suit - a leotard fitted with digital nodes that capture her movement).

Who's to blame? The game's developer, Quantic Dream, seems like the obvious target since it made the nude model to begin with; without the model, this controversy would never have arisen (in the law, we call this "direct causation"). But Quantic Dream claims that it made it impossible to view the model's lady parts within the course of normal gameplay. Their story is that an unauthorized developer took the model and filled in the blanks, as it were. So is Quantic Dream off the hook because someone found a way to view that model in an unintended way? And even if Quantic Dream was the right party, could Page sue the company for Appropriation of Likeness? She did permit the use of her face, after all, but does her "likeness" extend to her other features? Consider also that since Page didn't actually pose nude, all the "blanks" that were filled in by the unauthorized developer were done from imagination - does that alter the analysis? At this stage, it's unknown whether Page had an anti-nudity clause in her contract, and whether a 3D rendering of her body would qualify for the purposes of an Appropriation claim (there's some case law indicating that it might qualify). Basically, there are a lot of unknowns.

Here's what makes the whole thing even more fascinating: Sony, Beyond's distributor, is also the distributor for The Last of Us. This puts them in an awkward situation vis-a-vis their relationship with Page. Twice in one year she's become a victim of a high-profile game they released.  And once the pictures are out in the world, they're out there; there's no getting them back.

It'll be interesting to see if Page decides to pursue the matter legally. In the meantime, I'm sure she's learned her lesson: no more video games with Sony.

Off With Their Heads! Graphic Content On Facebook Is Judged By A Disturbingly Uneven System

I've never seen a video of someone being decapitated. I don't think I could handle it, frankly. Whatever morbid curiosity I possess, there are limits to the lengths I'll go to satisfy it. But if your curiosity was harder to tame and you wanted to watch such a video, then you probably won't have to look very far. A few days ago, Facebook lifted a six month old ban on decapitation videos (the ban originated over a user-posted video that showed a Mexican woman beheaded for committing adultery). Facebook now allows users to share graphic videos of decapitations because, according to a Facebook rep:

When people share this type of graphic content, it is often to condemn it. If it is being shared for sadistic pleasure or to celebrate violence, Facebook removes it.

Condemnation or not, Facebook backpedaled today and removed the video that started the whole mess after a public outcry that included Facebook users and British Prime Minister David Cameron. Facebook insists, however, that it didn't change any of its policies, nor will it inherently prevent other violent videos from being posted in the future. Each video will be reviewed on a case by case basis. Turns out that public pressure was a good tool to use in this case because there really are no legal mechanisms that prevent Facebook from allowing users full reign to post whatever content they want. Here's why...

1. Facebook doesn't owe a contractual duty to protect its users from any kind of harm. In fact, Facebook states pretty clearly in its terms and policies that it does not

control or direct users' actions on Facebook and are not responsible for the content or information users transmit or share on Facebook. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook. We are not responsible for the conduct, whether online or offline, or any user of Facebook.

2. Even if Facebook didn't have contractual protection through the above disclaimer, any tort-based lawsuit against the social network would fail because federal law absolves internet service providers like Facebook from legal responsibility when obscene content is posted by their users. The Communications Decency Act (CDA), which was originally passed in 1996 to regulate pornography on the internet, states that

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

It's worth noting that the CDA also prevents users from suing Facebook if Facebook removes content it deems to be obscene or violent. This means that the CDA is a Teflon-coated Kevlar shielded brick wall sprayed in bullet repellant; Facebook is essentially lawsuit-proof.

So if Facebook can't be sued for letting users post the videos, why did it lift the ban after six months only to backtrack when the public freaked out? My guess is that in the absence of litigation, public opinion is all Facebook can rely on to drive its policies. And, until recently, the public has been largely silent on the issue of graphic, violent content. In other words, Facebook assumed that people didn't care about violent content, so it let users upload the videos until the outcry became impossible to ignore.

But this raises a question that I actually find more interesting. Why has Facebook's handling of violent content been so much less even than its handling of sexual content? (For those who don't know, Facebook has a blanket policy to remove all nude media from user accounts, including breastfeeding pictures.) Call me crazy, but I have a hard time understanding why a photo of a mother breastfeeding her child, even when her breast is fully exposed, is more offensive than a video showing some poor fellow having his head sawed off, even when the reason for posting that video is to criticize and condemn the act. And it's not like the public has been silent on this issue either. When I googled "Facebook bans nude pictures," I got 38 million results.

I personally don't have a problem with Facebook censoring any user content (the First Amendment, remember, only applies to government censorship... Facebook as a private party can censor as much as it wants), but I'd like for its censorship policies to at least have some semblance of uniformity, especially if it won't explain why a photo of a boob is somehow more onerous than a severed head, or why decapitation videos get individual reviews by the Facebook team, while nude pictures get a ban hammer. I hope that we can convince Facebook that sexual content deserve at least the same type of case-by-case scrutiny that it gives to decapitation porn. If not, I fear the puritanical society we may one day become.

Lawyers vs. Apps: A Grudge Match To The Death

I like to give away lots of free legal information on this blog because I think it's important for artists to have a basic understanding about how the law interacts with them. I was once in your shoes. I've had my ideas stolen, my copyrights compromised, and been in situations where a little legal knowledge could have saved me from a jam or two. At the same time, you can't cut lawyers entirely out of the equation simply because you possess that knowledge. Legal information without analysis is just raw data. It can't give you advice or insight. It can't examine your specific situation and provide you with synthesized options based on that data (i.e. just because you know the fair use factors doesn't mean you know how to apply them). No two situations are the same and everyone's needs will differ depending on a variety of unforeseeable factors. Only a properly trained lawyer familiar with your circumstances will be able to navigate that minefield.

Such was my mindset when I wrote this review of Shake last Monday, a new app that allows users to generate contracts right on their iPhones without the need for a lawyer. I wrote that the app had promise primarily because it does something I support: bring clarity to the law. My exact words were, "Shake makes [contracts] easy to make, easy to read and best of all, short. By doing this, it incentivizes people to use contracts in their work, and anything  that gets artists thinking about their work from a legal perspective is a good thing." But the app had several larger issues that I found troubling; namely, the lack of flexibility provided by stock contracts and the ambiguous usage of the term "work made for hire" in the freelancer contracts.

Three days after my review posted, I found myself on the phone with Vinay Jain, the app's chief legal officer, talking about my concerns. The call was very productive and when I hung up 45 minutes later, the following was clear to me:

1. Vinay was open-minded, thoughtful, and took my concerns seriously. Regardless of what he does with my input about the "work for hire" issue, I felt heard.
2. He puts a lot of time and energy into researching contract law and making sure that the intricacies of different state laws are addressed in each of the agreements provided by Shake.
3. The Shake team is committed to democratizing the legal transaction process by making it less intimidating.

In other words, I came away from the call with my reservations addressed and feeling deeply impressed by what the Shake team was trying to accomplish and the manner in which they were trying to accomplish it. The app certainly isn't perfect (what app is, frankly?), but there's room for growth, and it's pretty clear that growth will occur over the coming weeks and months. More important to me, Vinay assured me that the team behind Shake agree that their app cannot and should not be a replacement for lawyers. Per the app's FAQ page: "We designed Shake to let you quickly record agreements for everyday transactions that you otherwise might do with a verbal 'handshake' agreement... Shake isn’t for complex or high-stakes transactions. Are you selling your company? Shake is not for that. You should talk with a lawyer. Are you selling your used computer on Craigslist or hiring a freelance designer for a basic job? Shake is perfect for either of those."

My hope is that if you use Shake, you use it as intended - to make quick and easy contracts where you otherwise wouldn't - not as an excuse to get out of hiring a lawyer just because of inertia or disdain (lawyers aren't very well liked in this country, in case you didn't know). A good lawyer isn't a black hole for your money. A good lawyer protects and elevates you. The people behind Shake seem to understand that, so I will support them.