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.

Man of Steel, Man of Immigration

Last year during a set visit to the Plano, TX set of the new Superman movie Man of Steel, a reporter asked the film's director Zack Snyder whether the film would feature a young Clark Kent coming to terms with his powers while growing up in Kansas - a topic that was heavily tread on Smallville's ten season run.  Snyder responded, "You need a Superman that has built-in sort of values... I always remember everyone saying like, 'You're not going to show him growing up in Kansas, are you?' I'm like, 'Why make Superman?.... to understand him, you have to understand the Why of him.'"

The point he was making, inelegant though it be, demonstrates a key understanding of what makes Superman tick.  For decades, comic book writers were unabashed about the Why of Superman, the reason he is the way he is: he was raised in a loving household by two good-hearted, God-fearing, and hardworking American parents who accepted him despite his many differences and taught him the value of responsibility.  Clark Kent had the idealized American childhood, and that childhood made him grow up to become Superman.  It's something we could all aspire to, which is why he became a symbol of American exceptionalism - strength and dominance, tempered by benevolence and justice (sadly, it's also this fundamental goodness that makes Superman unpopular today.  He comes from a very 1950's mode of un-ironic thinking that makes people unable to identify with him).  His DNA may be Kryptonian, but he is a Kent, a Kansan, and an American in all other aspects of his being; his mid-western roots are the wellspring of his value system.  It's the ultimate nature vs. nurture question, with the writers hewing towards nurture at every opportunity.

But the Why of Superman also highlights an interesting dichotomy: Superman wears his homegrown American values on his blue spandex sleeve, but he is still an illegal alien.  Even though America is his adopted home, he is not a citizen and that makes him, politically speaking, someone to fear.  America has a long and storied history of xenophobia that is sadly still present today; treating aliens like second class citizens, regardless of whether they crossed into the U.S. from the Sonoran Desert or across the vast gulf of space.  The Immigration and Nationality Act, the law governing U.S. immigration policy, is designed to create a nearly impenetrable barrier to entry into the U.S.  Superman, the classic immigrant, would be no exception to our immigration policies.  And that means if Superman applies for U.S. citizenship through the usual channels, he's more likely to end up on a boat to Belize than taking the oath of citizenship.

So what are the usual channels that will fail the Last Son of Krypton in his efforts to become an American citizen?  Generally speaking, the only ways to become eligible for citizenship are through family-based or employment-based visas under INA Section 203(b).  I think we can rule out a family-based visa right off the bat.  For Superman to be eligible for one of those, he would have to be sponsored by a parent, sibling or spouse.  And to benefit from any one of those relationships, he would have to divulge his secret identity and his relationship to Jonathan and Martha Kent.  To do so would not only open them up to potential threats from the likes of Braniac, Bizarro, and General Zod, but also to potential criminal liability - they did, after all, harbor an illegal alien, a criminal offense punishable by upwards of 20 years in prison (I think it's safe to assume that Clark, being legally adopted by the Kents, possesses the appropriate documents - a passport and social security card - but cannot use those documents in his guise as Superman).

No if Superman wants to protect his alter ego and his family, his only other option is to get a job.  And his gig at the Daily Planet isn't going to cut it for the same reason that a family-based visa won't work for him. For an American employer to hire him, the employer would have to A) give others a chance to apply for the job by advertising the  opening to all qualified candidates and B) prove that he is the most qualified for the job, and C) that no American citizen was as willing, able, or qualified as him.   The employer would also have to prove that in hiring Superman, it was offering the "prevailing wage" and "prevailing working conditions."  In most cases, this is a difficult threshold to overcome, but not so for someone who can run faster than a locomotive and leap tall buildings in a single bound.  Frankly, I think most employers could report with a straight face that Superman is the best possible employee for whatever position he's hired for.

Those employment-based visas are limited, however.  The government allocates only a very small amount of them each year, although preference are given to "priority workers" who have

extraordinary abilit[ies] in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. 

The last time I checked, there was no case-law describing how to categorize an immigrant who was powerful enough to push planets out of orbit and could take a vacation inside the sun, so I'm just going to wing it here and say that I think a credible argument could be made that Superman's abilities would fall into the "athletics" column.  Luckily for him, there's no question about Superman's feats drawing national and international acclaim.  Hell, any professional sports team could bring him on without a second guess.  And when you think about it, Superman's knowledge of Kryptonian technology could allow him to fall into the "sciences" column, making him a valuable commodity for defense contractors like Raytheon and Northrop Grumman, especially in light of the repeated extraterrestrial attacks his mere presence seems to draw towards Earth.

There's only one problem with this option.  Superman has no papers of any kind; no foreign passport, no identification card, no temporary visa.  He arrived as a newborn infant with no documentation and never passed through an authorized port of entry.  This makes him not only an illegal alien, but an undocumented one to boot, which means that no employer could hire him without opening their business to criminal liability.

So despite his extremely useful skill set, Superman can't avail himself of the usual channels since he lacks proper documentation.  That means the only other option available to the Man of Steel is to apply for asylum as a refugee under INA 208.  A refugee is defined as

any person who is outside any country of such person's nationality or, in the case of a person having no nationality,is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...

It's safe to say that when Congress passed this bill, they hadn't contemplated its potential effect on aliens of extraterrestrial origin whose home planet had been destroyed by a nearby supernovae.  While Superman could argue in front of an immigration judge that he is "unable" to return to his place of origin since it no longer exists, it's not for any of the reasons outlined in the legal definition, making it difficult to know how a judge would look at his application for asylum (I suppose it could be argued that being the biological son of Jor-El, a renowned Kryptonian scientist who fell into disgrace due to his theories that Krypton was about to explode, could open Superman to some form of political persecution).  It's certainly plausible that Superman's particular status could be found to fall within the definition if he hires a savvy immigration attorney to make a compelling case, or the judge is able to make the facts fit the legal definition of "refugee."   But there's yet another hurdle even if this occurs; INA 208(2)(A) clearly states that asylum can be denied if the alien can be removed to a "safe third country"

in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection...

Which basically means that the U.S. can deny Superman asylum if they determine that he can live safely in Canada.

Based on all of these factors, Superman is f**ked.  But that doesn't mean the story ends.  When an alien is denied citizenship for any reason, it falls to the U.S. Immigration and Customs Enforcement branch (otherwise known as ICE) to deport that alien back to his or her country of origin.  But how do you deport Superman?  Assuming he can be somehow captured and subdued, he can easily be back across the border within the hour.  And even if deportation were possible, where do you deport Superman to?  He's not "from" anywhere on Earth, and the technology doesn't exist to send him back to Krypton, which would essentially be a death sentence anyway since there's a massive empty void where the planet used to be.

So Superman is here to stay, but failing some extraordinary intervention on behalf of Congress or the President, the U.S. will functionally remain closed to him.  There is hope, however, that this will not always be so. Word on the street is that our immigration law could change this year to create a path to citizenship for aliens who are already present in the U.S. without documentation.  The bill appears to be gaining bipartisan support and has been flogged repeatedly in the news by Republican Senator Marco Rubio.  If it goes through, it could make citizenship attainable for the Man of Steel.  And I think that such a bill is the right thing to do.  Not only for the millions of immigrants who want nothing more than to live and work in this country, but also for a man who stands for truth, justice, and the American way.  He's spent his life fighting for America; it's time to make him one of us.

Thor's Dark World: Why Over-Delivering is a Breach of Contract

Thor: The Dark World, the sequel to Marvel's 2011 hit Thor is currently deep in post-production and is slated for release this winter.  If you've been following the production of the film like I have, then you've heard rumors that Marvel President Kevin Feige and the film's director Alan Taylor are in the midst of a major disagreement.   The nature of that disagreement remains a mystery, but one recent rumor claims that the fight is over - of all things - the running time of the film.  Taylor apparently wants the film to run for two and a half hours, while Feige wants the film to clock in at two hours even.  Evidently, the conflict has gotten so bad that editing has halted and a mediator has allegedly been brought in to resolve the situation.

Now this rumor may be complete BS (although the rumor mill has been swirling for weeks that Taylor was taken off the film, right before composer Carter Burwell's exit a few days ago), but I thought it was unique opportunity to highlight an interesting little wrinkle in contract law.  Namely, that over-delivering on a contract is technically a breach and can result in a lawsuit for damages.

Holy Hell?  You can actually be sued for giving the other party more than they originally bargained for?  Yes you can, and if these rumors are true, it's exactly what Feige appears to be accusing Taylor of - breach of contract by delivering more movie than was originally requested.  It feels counter-intuitive to say that getting MORE than you paid for is somehow a negative thing worth suing over, and to some extent that's right.  It's rarely considered a bad thing to get more than you asked and if you were to sue over it, a judge would probably dismiss the case and maybe even hit you with a Rule 11 sanction for bringing a frivolous lawsuit.  That's probably why Marvel is bringing in a mediator instead of suing Taylor outright.  Why waste the time and money to sue the guy when a judge would just dismiss the case because of its inherent ridiculousness?

But a breach is a breach, even if benefits the aggrieved party.  There's a reason why high-level contracts like these are so time-consuming and expensive to put together; the parties have very specific needs and demands. You can bet your bottom dollar that if a provision ends up in a contract, no matter how absurd it seems,  it's important to the parties that it gets carried out exactly as written.  Any deviation from the terms of the contract is considered a modification, which is not enforceable without the approval of both sides.

And anyway when you think about it, over-delivering on a contract can actually be a negative thing in some situations.  Movie studio generally hate long films because they can't schedule as many showings - 5 to 6 showings per theater per day for a two hour film as opposed to 3 or 4 for a three hour film - meaning the film will make less money during its theatrical run (Although Avatar and The Lord of the Rings films bucked that trend). Marvel is not, after all, a charity.  They want to make as much money as they can, and they've contracted with their talent a certain way to achieve that goal.  If Taylor's contract does indeed specify that he is to deliver a two hour film, and he breaches that provision by delivering a movie that's 30 minutes too long, then it could actually be detrimental to Marvel.  Marvel will be required to spend extra time and extra money they hadn't planned on to edit the film down to the requested two hours.  Reasonable minds can argue whether it is financially or artistically prudent to predetermine a film's running time before a director has even been hired, but Marvel has determined what it wants, has contracted to get what it wants, and is perfectly within its right to enforce that.

When Foreign-Born Artists Make the U.S. Their Home, a.k.a. Common Immigration Misconceptions

Here's something a little different.  A few months ago, I was asked by the Rhode Island School of Design Alumni Office to contribute a short legal column for the upcoming Spring/Summer issue of RISD XYZ, the school's alumni magazine.  This particular issue focuses on how art and design can function as a way to communicate across cultural and ethnic barriers.

I balked at the idea at first.  I don't know squat about international law so I wasn't sure that I could contribute anything worthwhile (learning American law is difficult enough).  But after a little back and forth with the editor of the magazine, it was suggested that I draft a column discussing some common immigration issues that are routinely faced by members of RISD's sizable international student body.  It's not unusual for students to come to RISD with the goal of making the U.S. their permanent home, so even though immigration law is not my area of specialty, I decided to write the column to give them a little boost when navigating this elaborate area of American policy.  Coming from a family of immigrants, I do actually know a little something about the trials and tribulations that accompany the path toward citizenship (but don't worry, I do have some actual immigration law training).

Then I decided that this isn't an issue faced only by RISD students; every year thousands of foreign-born students come to American universities with the hope that America will become their permanent residence.  So why not put it on my blog?  For that reason, I've reprinted below the un-edited version of what will appear in the magazine.  As always, this is a cursory overview of an immensely convoluted topic.  If you're seeking citizenship in the United States, seek out an attorney who specializes in immigration law.  This is one area where you can't afford to skimp.

*****

Making The U.S. Your (Legal) Home [the title may change when the magazine goes to press]

By Greg Kanaan '02 FAV

RISD is well known as the top art school in the world, so it’s no surprise that students are drawn here from every nook and cranny of the globe.  Twenty-five percent of the student body is made up of international students representing fifty-four separate countries.  Upon graduation, many of those students will choose to stay in the United States to make their living… a difficult prospect to say the least.  As the son of an immigrant, I can tell you first hand how arduous the immigration process is (my cousin is currently going through the years-long process right now).  It doesn’t help matters that the Immigration and Nationality Act, the law governing U.S. immigration policy, is one of the most incomprehensible and byzantine laws ever written.

 That’s why I’ve singled out the three most common mistakes I’ve seen RISD alums make when trying to obtain legal residence in the U.S.  Avoid these and your path towards citizenship will become just a tad easier.

 1. Thinking student visas count towards a green card.

Nope, they don’t.  Everyone knows that it takes years to get a green card - anywhere from five to twenty-three depending on your particular circumstances and nationality (those coming from Mexico have a longer wait than most other nationalities, as you might imagine).  I once met a man who gained citizenship after twenty-nine years of residency, some of which were spent here as an undocumented worker.  Unfortunately, the student visa you got allowing you to attend RISD doesn’t count because it’s considered an M1 temporary “non-immigrant visa,” which is issued under the assumption that you’ll return to your country of origin when it expires - i.e. when you graduate.  The citizenship clock doesn’t start running until after you leave school, which means that the four years you spent in the U.S. don't count towards citizenship.

 2. Assuming that freelancing counts toward an employment-based visa.

Unless you have a parent, sibling, or spouse who is a citizen or Legal Permanent Resident and is willing to sponsor you for a family-based visa, your best hope for citizenship is through full-time employment.  Freelance work, no matter how frequent, will not get you a visa.  You need an actual legal employer, and the employer has to jump through some pretty significant hoops to get you.  They must A) advertise the job to American citizens, and B) prove that you’re qualified for the job, and that no American citizen was as willing, able, or qualified as you are for the job.  Basically, you have to be the best candidate they’re ever likely to see, and that's a tough burden to overcome.

 3. Leaving out important information in the application process.

We all make mistakes. But don’t lie about those mistakes during the application process... especially if those lies can be rebutted by the public record.  The ICE officers (Immigration and Customs Enforcement) who are tasked with looking into your case are tenacious and thorough; if you lied or withheld information, they will find out eventually.  This means that if you have a DUI or anything else you think might compromise your chance at citizenship (such as prior immigration violations), admit to them right away.  You probably won’t get squashed for driving under the influence, but you’ll DEFINITELY be denied citizenship if you’re caught lying about it.

These pointers are just the tip of the iceberg.  As I mentioned above, the Immigration and Nationality Act is extremely dense and very difficult to wade through, even for those trained in its intricacies.  So if you really are planning on emigrating, please do yourself a favor and seek out a licensed immigration attorney to help you get through it.  One wrong step could mean years lost in a process that isn't designed to be helpful to you.

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.

Ask Greg: Why You Don't Need To Register Your Copyright or Trademark Even Though You Should

I get lots of questions from artists with legal conundrums. Lots. And most of those questions tend to be variations on some common theme. So when I notice a pattern emerging, I'll wait for a bunch of similar questions to build up and then do a blog post on it - usually framed around an interesting new story, personal experience, or some other flight of fancy. Sometimes I'll discuss it in such a way that the question I'm answering is buried in the overall telling, that way it's not obvious that I'm addressing an issue that several people are facing. The question I'm answering today is a little different though, since it may in fact be the most asked question I receive. So instead of addressing it in conjunction with some framing device, I'm just going to attack it head on so there's no ambiguity. And if you like this no-nonsense approach, let me know in the comments section and I'll make Ask Greg a recurring column.

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Q: When should I copyright my work?

A: Never. Never ever. Let me say this as clearly and as loudly as I can: you never need to copyright your work because under U.S. Copyright Law, copyright attaches to the work automatically from the moment the work is "fixed in a tangible medium of expression." That copyright is there to protect your right to own and exploit the work and it exists independently of any other considerations: you don't need to tell anybody that the copyright belongs to you and you don't need to attach the famous © symbol. You don't even need to sign your work (although you should absolutely do all those things anyway). There. Question answered, your job is done.

Okay not really. Because this question isn't really asking whether you should copyright your work, it's asking whether you should register your work. And that is a wholly different calculus. I've talked in the past about where you should register your work (the most common is the U.S. copyright website) and how you can get that registration, so I won't go into that again here. Instead, I will tell you why registration is worth it, even though you don't have to.

Why You Don't HaveTo Register Your Work

Because Copyright Law already protects your ownership over the work. The law doesn't stop working for you just because you elect not to register your copyright with the government. Also, registration fees can really add up since each piece of work must be registered individually. So the more art you create, the more expensive it will get for you to register your art. Someone asked me last week if they could batch register a group of works at the same time. The answer is no, unfortunately. Registrations protect individual works of expression, so unless the separate pieces are meant to be viewed as part of a whole (i.e. short stories in an anthology), they have to be registered solo.

Why Registration Worth Is It

Well first off, if you decided to sue someone in for infringement - i.e. someone uses your work for profit without your permission - you will have to register the work with the Copyright Office before you can bring the lawsuit into court (it's cheaper to register online). So frankly, having that registration beforehand is just easier. But beyond that, registration is a great way to protect your copyright because it creates an official government record demonstrating when your work was created. They even send you a fancy registration certificate for your records. So if you do eventually sue someone for infringement, that registration is proof that your work preceded the infringing use. Of course, having a copyright registration isn't the only way to prove that your work came first... but it is the best way by far. That's partly because as an official government record, copyright registrations are granted a lot of authority in a courtroom setting (government documents are self-authenticating, which means your lawyer doesn't have to prove that the registration is what it claims to be. This, by the way, is good deal for you - the less time your lawyer spends proving a document's authenticity means you're spending less on attorneys fees).

You can read all about registration procedures and a few other benefits here if you're so inclined. The basic gist is that registration isn't really necessary most of the time unless you need to sue someone. Think of it this way: Copyright registration is like auto insurance. You may never need it, but if you get into a car crash, it'll save your butt. That said, if you don't register your copyright but you do suffer from infringement, there are still all sorts of ways you can go after the infringing party - cease and desist letters, DMCA takedown notices, and demands for licensing fees, among others.

Added Bonus: What About Trademark Registration?

While Copyright Law protects works of artistic expression fixed in a tangible medium (i.e. art), Trademark Law protects any word, name, symbol or device, used by a person in commerce (i.e. a logo you use in business, your company name, or even a catchphrase). Trademark registration shares many of the same characteristics as a copyright registration - the main difference is the manner in which the work gets infringed.

Similarities: Just like copyright, you don't need to register your trademark in order to have protection under the law. Once you start using a trademark in commerce, it will automatically have some level of protection against infringement. If you do decide to register your mark with the U.S. Patent and Trademark Office (USPTO), it will requires a fee and you'll get a tony little certificate of registration indicating that there is now an official government record of your trademark.

Differences: Unlike copyright, if you don't register your trademark with the USPTO, the protection you'll have over your mark will be regional only - an official registration gives you nationwide protection (for example: I start a company called "Greg's Beets." If I register my company name, then anyone in the country who uses that name could be subject to a trademark infringement lawsuit. On the flipside, if I don't register the "Greg's Beets" corporate name with the USPTO, my mark will only be protected within the state). If you want, you can actually register your mark directly with the state as well: the USPTO website has a page devoted to all the state sites where you can register your mark. Most registrations have to happen with each state's Secretary of State.

One Last Note About Symbols

When you have a piece of copyrighted art, you are allowed to use the © symbol whether or not you choose to register with the Copyright Office. The © is a gift and you should absolutely use it at every opportunity because it signals to the world that your work is protected (a lot of people assume that if the © is missing, the work is not copyrighted; even though that's not true, don't give them the opportunity to think that).

The same applies in trademark situations: You are allowed to use the ™ symbol even if you don't register your mark and your work is protected whether or not you use it. But as with the ©, you should still use it. The ™ indicates that you intend to use the mark in commerce. It's just good business to get in the habit of putting a ™ on your trademarks.

That said, do not use the ® symbol without officially registering your mark with the USPTO. That mark is reserved squarely for marks that have been registered and use of it could result in a fine of some kind.

Protecting The Brand: Beyonce Knowles vs. The First Amendment

Remember when Beyoncé performed during the Super Bowl halftime show and this hilarious meme-birthing picture was taken?

And then she flipped out and tried to have it scrubbed from the entire internet?  Well, three months later and Queen Bey is back at it.  She's currently on her Mrs. Carter Show World Tour and she completely banned outside photographers, while releasing only pre-approved flattering pics to various news outlets.  Beyoncé's goal  is to have total control over her image, so instead of newspapers and websites running photos of her looking like She Hulk, she'll instead look like this:

Reasonable minds can argue whether the kind of control she's attempting is even possible in the internet age (hint: it isn't).  But I'm more curious about the effect that this kind of totalitarianism will have on her brand.  The conventional wisdom is that Beyoncé isn't doing herself any favors by limiting press access to her and having relentless control over the pressers that do get access.  On the face of it, it makes her seem out of touch with reality.  But is that harmful to her brand?  I'm not so sure. The people who love Beyoncé are already convinced of her beauty, talent, and semi-royal status and are willing to write off the unflattering pics as aberrations.  And the people who don't love her?  Well they certainly won't be convinced by these autocratic methods, but I don't think she's trying to win them over anyway. Beyoncé knows herself and her audience, and as long as they keep her rich and famous, that's probably enough.

I've seen it argued that Beyoncé's grasp on her self-awareness is tenuous at best if she thinks she can control her image to this degree, but I would argue that she's read the situation better than we giver her credit for.  After all, she hasn't sued anyone to take down the unflattering pictures (to my knowledge, she only sent polite email requests to various outlets), and that fact tells me that she knows where the line is between egomania and villainy and she's not willing to cross it.

So my guess is that while this probably won't make her MORE popular, her brand is as safe as any celebrity brand can be.  But I say that with one caveat: she should avoid alienating the press, because they're the ones who can bring about her destruction.  If you've seen Beyoncé in interviews - as well as the remarkably self-serving HBO documentary she directed about herself - it's clear that she is a person of extreme self-confidence.  And the confidence she has in her abilities has driven some of the press to turn on her and lose their own grasps on reality.

In particular, the National Press Photographers Association.  They're claiming that the restrictions placed on them by Beyoncé and her management team is preventing them from doing their jobs, and that violates the First Amendment.   No, sorry fellas.  I understand that you're angry at having your access to Beyoncé cut off, but the First Amendment isn't applicable here.  Constitutional Law 101 tells us that the First Amendment only prevents the federal government (and state governments through a process known as incorporation) from restricting your freedoms of speech, press, religion, etc.  It says nothing about whether a person or organization can restrict your First Amendment rights... because they can!  Behold the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As you can see, not a word leading you to believe that individuals (like Beyoncé!) or corporations (like Beyoncé!) can't place restrictions on the press at events.  In fact, all of the Amendments in the Bill of Rights are there to prevent the government from limiting your rights.  But they apply only to the government.  So while Beyoncé's ban on photogs at her concerts may not be the best PR move, there's no legal reason she can't do it.

Illegal Graffiti Gets Copyright Protection Because It Is Still Art

Everyday on my walk home from work, I see this or something like it tagged to the side of my apartment building:

Graffiti intrigues me because of its contentious nature in "civilized" society.  The artist in me is excited by the skill and craftsmanship involved in making something like this (although I can barely read it; it might as well be written in Klingon).  But the law-abiding citizen in me tempers that excitement with the knowledge that graffiti, unlike most other forms of art, is predicated on using someone else's property as a canvas... often without their consent.   And because graffiti is usually illegal, it raises a decorum problem that often confuses people into thinking that the normal rights of copyright ownership don't apply - i.e. "you can't copyright protect vandalism because it is illegal."  But that's bunk.

I've known a fair few graffiti artists over my lifetime and I can safely say that they're not a populace that's overly concerned with asserting ownership rights over their work.   Primarily because asserting ownership would be an admission of guilt resulting in some form of criminal penalty such as a fine or even jail time (there's a reason Banksy can't revealed his identity, after all).  The other part of it is the political motivation that often accompanies graffiti: that property ownership is a social construct anathema to the public good.  Why else vandalize someone else's building with such artistry and flair when a sledgehammer or molotov cocktail can drive home the same point in a fraction of the time?  [Author's note: of course, there's always the possibility that the graffiti was commissioned by the property owner, in which case, the tagger is not burdened with criminal concerns and will want to assert and maintain copyright ownership. Here's an interesting NY Times article from 2007 about graffiti artists who were upset when their commissioned works were mistaken for vandalism and photos of the graffiti ended up being published in a book without their permission.  If you're a graffiti artist who is hired by a paying party, you should really check out my last post on work-for-hire.]

But make no mistake about it, graffiti artists, even the covert ones tagging buildings without permission, do have ownership rights over their work.  Graffiti is absolutely 100% protected under U.S. Copyright Law and I'll have words with anyone who says otherwise.  Our copyright law lists the following types of works that are granted copyright protection:

1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings; and
8. architectural works

And while graffiti (along with many other forms of art) is never explicitly mentioned anywhere in our copyright laws, it's clear that the list was purposefully left open-ended to grant protections to art forms that hadn't yet been invented and hadn't been contemplated by the drafters of the law.  I should also point out that nowhere in our copyright law does it say that a type of art forgoes protection simply because it could be illegal.  That's what this article by Celia Lerman argues and I agree without reservation.   Copyright law places no judgment on art, the motivation behind the art, or the form in which the art takes.  It is, for all intents and purposes, judgment neutral.

The fact that an artist can own the copyright to a piece of illegally made art that emblazons the side of someone else's property creates an interesting dynamic when a third party takes a photograph of that graffiti (like the one I took above) and attempts to profit off of it.  That's infringement of copyright and doing so without the artist's permission could actually result in the artist taking you to court and winning monetary damages (if the artist isn't concerned about the criminal ramifications, obviously).  Luckily, I'm in the clear because I can assert Fair Use over my photo since it was taken for non-commercial, educational purposes.  But if you're like the photographer in that NY Times article I linked to above, watch out!

So ownership over the copyright to graffiti is vested in the artist regardless of its legality.  But that's not the end of the story, because that art, while owned by the artist, is completely reliant on someone else's private property.  And property is kind of a big deal in this country.  The right to property is mentioned explicitly in the Fifth and Fourteenth Amendments, and the Third Amendment is built entirely around it.  Let's not even go into the entire legal disciplines that arose around property law and made my life in law school an unwinnable shit-show.  Property is important, which means that the needs and wishes of the property owner will almost always supersede the rights of the graffiti artist.  So when my landlord decides to blast off the graffiti adorning my building with a power washer, he can do that without fear of legal repercussions from the artist (although why bother?  The taggers are just going to show up again).

The truth is, despite the political hand wringing over it, graffiti is just like any other type of art form and gets the same protections.  What makes it difficult at times is its relationship to the surrounding environment.  And unfortunately, as long as graffiti remains illegal, the oath I took to uphold the law will mean I have to walk a fine line between the rights of the artist and the rights of the canvas owner.  It will be, for the foreseeable future, an issue that tugs on my Gemini heartstrings.

The Work For Hire Doctrine - A Primer For Freelancers

It strikes me that in the eight months I've been curating this blog, I've never actually explained the Work For Hire doctrine in any meaningful way.  I've only tiptoed around it, and that's just ridiculous when you consider the fact that artists generally aren't independently wealthy and need to work for a living.  Since most artists make their living by creating their work on someone else's dime, that means they're relying on the Work For Hire doctrine even when they don't realize it.

I bring this up because last Thursday I hosted an alumni-only webinar for my alma mater on important legal topics for artists and artrepreneuers and I made the Work For Hire doctrine a prominent part of that presentation.  Based on some questions I got during the lecture, I decided that now was the time to discuss Work For Hire and clear up some important misconceptions about it (especially as it pertains to freelancers) that seem to throw people for a loop.  So without further ado, here's my brief primer on Work For Hire.  Buckle up, it's about to get informative!

What Is Work For Hire?

The Work For Hire doctrine is a very specific legal principle that arises under U.S. Copyright Law.  The basic premise is that in certain situations, an employer will automatically own the copyright to work you do for them as a matter of right.  But the manner in which an employer can assert that right depends heavily on whether you're hired as an employee or an independent contractor (or freelancer, to use the non-legalese equivalent).

The Employee Work For Hire

If you're hired as an employee, the work you create for your employer doesn't belong to you, it automatically belongs to the employer.  No ifs ands or butts. In employment situations, the ownership over a copyright to a piece of art is no longer determined by the artist's handiwork; it's determined by the motive and desire of the employer.  How will you know if you're in an employment situation?  Look for the traditional trappings of employment, like salary, benefits, co-workers, office, boss, limited control over your work, etc.  If you find yourself in this situation, then unfortunately, the only way you can retain a copyright to work you've created for the employer is if the employer gives it to you in writing.

Here's an example of how that plays out: if a company hires you to design a logo and website for them, but you're paid a salary, you work out of their office, and your employment is indefinite (as opposed to job-specific), that probably means you're an employee.  You won't have any rights of ownership over the work except the right to display that work in a portfolio.

...But you and I both know that most artists don't work as employees; more often than not they work as freelancers.  And when you're hired as a freelancer, the rules change dramatically.

The Independent Contractor/ Freelancer Work For Hire

If you're hired as an independent contractor or freelancer (you should look for factors like greater control over the work, using your own equipment, working on your own time, short employment periods, etc.), the employer will own the copyright to your work as a matter of right ONLY if all of these requirements are met:

1. The work is custom-made/ commissioned

2. Both parties agree in writing that it's a Work For Hire

3. The work falls into one of these nine categories: (A) a contribution to a collective work, (B) a part of a motion picture or other audiovisual work, (C) a translation, (D) a supplementary work, (E) a compilation, (F) an instructional text, (G) a test, (H) answer material for a test, or (I) an atlas.

So if you're a freelancer, this means that you will own the copyright if any one of these three requirements isn't met!!  Let me repeat that because it's super important... your work must meet all of these requirements to be a Work For Hire; if just one of these requirements isn't met, it isn't a Work For Hire and the employer doesn't get the copyright.  One of the biggest misconceptions I see with freelancers is that they usually assume once they complete the work, they no longer have any ownership rights over that work and they walk away, not realizing that they still own the copyright.

Let's return to the website example.  You're hired to design a logo and website for a company, but you do the work on your own computer, on your own time, and you send the company invoices for your work.  The work is obviously custom-made and let's even say that you and the employer both agree in writing that it's a Work For Hire.  Well, it isn't, because unless the websites constitutes a collective work, web and logo design aren't any of the previously mentioned nine categories.  That means it's not a Work For Hire and you retain the copyright to your work.

On the other hand, if you were hired as a cinematographer on a film, then as long as you and the employer agreed in writing that it's a Work For Hire, then the copyright WOULD be taken by the employer, since films are one of the nine categories considered under copyright law. If you're a film producer and you're hiring above and below the line talent, it's a good practice to put in writing that the work these independent contractors do are Works For Hire because you don't want to get sued for copyright infringement.  Remember a few months ago that anti-Islam film that caused all those riots in the Middle East, "The Innocence of Muslims"?  Well one of the actresses, Cindy Lee Garcia, sued the film's producer Nakoula Basseley Nakoula for copyright infringement.  As it turns out, even though their employer/independent contractor relationship met most of the requirements (custom work, motion picture), there was never a written agreement between the two that it was a Work For Hire.  Unfortunately for Nakoula, he has bigger problems than a copyright infringement lawsuit (for example, the jihad against him by radical Muslims for his film's denigration of the Prophet).

Of course, even if your employer has no right to the copyright, you can always convey the copyright (through sale or gift) to the employer if you choose to; the employer only has a right to it in the circumstances I mentioned above.

A Bundle of Sticks

Let's say you're a freelancer and you retain the copyright to the work you did for someone, that doesn't mean you can do whatever you want with it.  After all, someone paid you for that work and they have an expectation that no one will try to profit off of it... even the artist.  It's a reasonable assumption.  When you do work for someone, you can't just treat it like it's yours, even if it is.  That's because ownership isn't the only right that accompanies a copyright.  There are several other rights (such as the right to display, the right to make copies, the right to make derivative works, among others) that go with a copyright as well.  We copyright attorneys refer to this as the "bundle of sticks" and ownership is only one.  When you're paid to do a work of art at someone's request, you end up giving up a lot of those rights, even if you retain ownership.  If you were to exploit the work as if you had complete dominion over it, you could actually end up facing a variety of copyright or trademark infringement issues over exploiting your own work, and that's a pickle you don't want to be in.

So now you may ask "Greg, what's the point of owning a copyright to the work if I can't exploit it?"  Well, chiefly it's because you may want to limit how the employer uses and profits off your work.  Since you both possess some of the rights to the work and neither of you possess all of the rights, both parties are limited in their abilities to exploit that work.

How To Move Forward

So you own the work you did for someone else but now you can't really do much with it, so what do you do?  Maybe it's better to set up some sort of licensing agreement with the employer that's renegotiable at specified intervals.  Maybe it's better to convey the copyright outright and then walk away from the work.  It really depends on the situation, the client, and the potential for profitability of the work you do (for example, if you design a logo for a company and the company becomes famous, the potential for financial exploitation is probably much greater than if you do a mural for a client's building).  As far as I'm concerned, one thing is absolutely clear: if you're a freelancer, you need to discuss what to do with that copyright in every contract you sign with a client/employer.  After all, there's no reason you both can't continue to profit off the work you were hired to do.

And if you're an employee... well just take solace in the fact that you have a job.

Self-Serving Post # 1: Come To My Webinar!

Hi dear readers,

Next Thursday, April 18th at 7:00pm I'll be hosting a webinar on the three most important legal topics that I think artists and artrepreneurs should know about.  This is for RISD alums only and it's sponsored by the Alumni Office.  You can register here.  I implore you to check it out because I'll be covering some of the topics I'm most passionate about and have talked about on the blog before.  After the webinar ends, I'll make my slides available here for anyone who wants it.