Today was the second day of my copyright course at UNH Law. Again, Susan Richey was filling in for Mary Wong.
The readings for the day were pages
3-11;
15-18;
21-31
and 33-39 Copyright in a Global Information Economy: Third Edition by Cohen, Loren, Okediji and O'Rourke. In case anyone wants to follow along, the ISDN is 978-0-7355-9196-7. The same as last time.
Like the first day, I didn't learn much, because the course is for people that don't necessarily have the copyright background I have. I did learn one incredible thing though. I got out copyright-hippied by a professor.
Professor Richey thinks there should be a "fair use" argument for mural artists painting murals on the side of other people's buildings.
Now, maybe she doesn't actually think this. Maybe she was just trying to provoke conversation, but she seemed pretty adamant about it to me. While generally I think private property should submit to the public good I don't place smog regulations in the same category as murals. I realize that mural art is different than posting art to Flickr, but from a First Amendment point of view, it seems to me like there is ample opportunity to speak. The private property chilling affect seems pretty limited.
It sounded like Professor Richey was ready to give the fair use exception only to artists and not to advertisements, but as far as I'm concerned, a good advertisement is art.
Now, let me also be clear that people that think graffiti cannot be art are simply wrong. I also think cities should have public places for such art. However, if architecture is art, who is to say that the graffiti isn't, well, vandalism. There is a big difference in Duchamp's L.H.O.O.Q. and someone actually "vandalizing" the Mona Lisa. Thanks to restoration guru Henry Hebert for point out this "innocent vandalism".
Let me also be clear that there are other legal issues in Professor Richey's comment such as federalism and government "takings" which I don't feel the need to discuss here. If people want to discuss those in the comments, have at it.
Aside from that, below are some odds and ends from today's class.
We discussed briefly how you can waive moral rights, but you can't transfer them. We also briefly discussed "neighboring rights" of copyright, which in the US are for musical performers, producers of sound recordings and broadcasters. We also briefly discussed the definition of a joint work. The Nat King Cole/Natalie Cole duet is *not* a joint work, because Nat King didn't intend it to be a joint work (Nat King was dead at the time of the editing to make the track a duet).
Interestingly, it was mentioned that work-for-hire is one of the most misunderstood copyright doctrines. I'll be sure to write more about this issue in depth when we get past this survey portion of the course.
It was also mentioned that moral rights expire upon death. While this may be true of VARA rights, this is not true in all states regarding things such as the right of publicity. Also, I do not believe this is true in all European nations, though it's possible I'm wrong about that.
We also briefly discussed copyright registration, contributory liability, vicarious liability, the first sale doctrine, fair use, and the DMCA. Actually, our discussion of fair use was a little longer than brief, but we just spoke with CC Canada about the differences in the US fair use and the Canadian fair dealing and I don't think our discussion today in class warrants a lot of discussion here. There's already plenty written on Wikipedia about fair use for those that want something before we get to the more substantive parts of the doctrine later in the semester.
Lastly, I wanted to mention that after copyright class Professor Greg Vetter of the University of Houston gave a guest lecture today. My understanding is the video will be post on the UNH YouTube page. Currently the video is not up. I don't think the talk warrants a separate write-up from me. It was *very* basic. I highly doubt anyone reading this entry would find it worth an hour of their time, unless someone is just curious about legal education. If that's really all you want though, let me suggest Professor Goldman's talk on SOPA/PIPA or Judge Gajarsa's talk on the America Invents Act. However, because I am so ridiculously awesome, if someone wants me to do a write-up, I will. Also, I want to publicly thank Professor Vetter for coming to the school to give a talk. While I didn't personally gain anything from the talk, not everyone in the room wrote their master's thesis on free/libre and open source software. It's very clear I wasn't the target audience and I don't begrudge Professor Vetter for that.
That's all for now, tomorrow there should be a patent entry up over at opensourceplayground.org! Also, we don't have class next Tuesday, so no post from me. Professor Wong is still in Asia.
I tend to agree with your assessment. I like free speech, and I like art. I'm actually quite fond of several pieces of graffiti from a purely aesthetic perspective.
ReplyDeleteI know better than to try to split hairs from a legal perspective about the artistic merit of the content of any speech. Having some experience trying to use zoning to keep outdoor advertising under control, I know that, given the opportunity, people (in the legal sense to include individuals and corporations) will find ways - rarely deterred by even the most flagrant violations of zoning laws, or in any case, by the legislative intent of those laws - to use outdoor advertising to make profitable a use of property that the market would not otherwise tolerate: blighted, abandoned properties whose maintenance in their current state of repair - enabled by the income from advertising - contributes blight, safety concerns, and potential squats for criminal activities.
I say this having worked for a group that opposed outdoor non-accessory advertising in nearly every case; my personal feeling is that there are examples of outdoor advertising which are examples of civic responsibility from both an aesthetic perspective and from the persepective of the direction of the income they generate.
Why have I gone on about outdoor advertising when Prof. Richey's suggestion apparently precludes a commercial use of this hypothetical public use idea? Because without a thorough understanding of what she is proposing, it sounds like the kind of slack that advertisers would need to begin to throw up advertising with the kind of lawless aplomb of a graffiti tagger, but with the budget of a massive advertising agency. This already happens (eg http://news.bbc.co.uk/2/hi/americas/4567236.stm); advertisers need no further encouragement to take advantage of a culture of lawlessness around our public spaces.
Of course I absolutely respect what I prefer to think of as an aesthetic craft, rather than an art - architecture. I think that those craftspeople are owed respect for their work to contribute to the visual and ergonomic culture of a place. I also acknowledge that the architect's craft is one in which the product must be released into the world, where tenants may choose color schemes, window treatments, landscaping, additions, and any number of other things that disturb the architect's sensibilities. That's the nature of the craft. As a playwright, I identify somewhat: directors and actors will cut and change what you thought of as key bits. Productions will convey meaning other than what you wrote. It's different to produce work that transforms in its realization than it is to produce work that stays behind bulletproof glass in a carefully climate controlled environment (granted, da Vinci knew nothing of bulletproof glass or climate control... unless he secretly invented both).
Finally, what is the free speech protection protecting, if not the right to voice one's opinion? But do we really want a society in which racial slurs painted on the house of a person from a racial minority are protected? Do we want a society in which anti-Semitic, anti-Muslim, anti-Christian, or anti-Sikh slurs painted on the sides of synagogues, mosques, churches and gurdwaras are protected? Do we want to protect speech on the side of the natural history museum that lambasts evolutionary theory, speech on the side of a medical school that lambasts germ theory, or speech on the side of a law school that lambasts Christopher Columbus Langdell? (In fairness the last one has its appeal...)
Of course it is the right of a person to use her mouth and pen to speak against anything that she wants, but why should any of us have to tolerate that speech permanently emblazoned on our sacred places, our homes, and the places where we revere important thoughts and ideas?
well, architecture is covered by copyright. That's really the only reason I brought it up.
DeleteAfter class, one student proposed that maybe it could work on government buildings, but from an architectural point of view, it seems like government buildings are some of the most artistic. I don't know if that is an interesting thought to you.
Trademark Law is one of the most fascinating laws ever made in the world. The fact that there are copyright lawyer nyc available now to help us keep our intellectual properties OURS, what else in the world do we need? Goodluck on your chosen field!
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDelete