Thursday, August 30, 2012

Copyright: Day 2 - Graffiti as Fair Use?

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! Also, we don't have class next Tuesday, so no post from me. Professor Wong is still in Asia.

Wednesday, August 29, 2012

Copyright: Day 1

This is not legal advice. Leave audio feedback at (512) 686-6329.

On Monday, I started my second year of law school. For those interested, my courses are Professional Responsibility, Evidence, Criminal Procedure, Patent Law and Copyright Law. Yesterday , I started my copyright and patent courses. For those interested, I will be posting patent stuff over at Specifically, my first post is up.

Yesterday was a bit different than my copyright class will normally be because my professor, Professor Wong, is in Asia with the Dean. Susan Richey was filling in for Professor Wong. Even though I had not given any thought to the fact that a write-up of class could be a derivative work, Professor Richey gave express permission for us to post notes. Of course, these twice-weekly write-ups won't just be my "notes" by my independent thoughts on the readings and lecture.

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. Luckily for me, the readings are the same for next class. Also, "Understanding Copyright Law" from LexisNexis is a "recommended" book for the course.

The readings included a snippet from John Locke's Two Treatises on Government, which interestingly I recently gave up on having the time to listen to the audio book. Also, interestingly, there were no cases in the reading. There was just reading from the book authors and select law review articles. If people want citations to law review articles in the future, I can list those in the future. I assume many of the readers won't have access to the law review articles (or the book for that matter, but duplicating things people won't have seems silly).

Of course, being the first day of class, we started by answering the question "What is a copyright?" Well, the easy answer is that it is an "intangeble property" as opposed (obviously) to tangible property right. In the US copyright is based on economic/utilitarian theory, rather than moral/natural rights. While this is not something we really talked about in class, it is worth mentioning that many of the moral rights Europeans enjoy through copyright, USicans get through common law rights, such as the "right of publicity". This is, at least, one way how the US believes it fulfills its Berne Convention obligations. I'm sure we'll come back to this later in the semester, but since I know we have European readers, I wanted to go ahead and mention it here. I've already written about VARA, which is another way US artists can receive moral rights.

While we (fittingly) really didn't talk much about trademarks and patents, we did briefly discuss how copyright fits into the intellectual property scheme.
  1. Patent is strongest, but shortest right.
  2. Copyright is next strongest right, but still limited in time (though long).
  3. Trademark is weakest, but potentially perpetual.
It is worth noting here too that in some other countries trademark protection is stronger. Some countries ban comparative advertising, for example. Comparative advertising is essentially a First Amendment right. Again, this is not something we discussed in class, but I think it worth mentioning.
I can really only say that I learned one thing from the first class, which says less about Professor Richey and more about the knowledge I had coming into the class. That one thing is that apparently the first copyright existed in Ireland in 550...almost 1000 years before the invention of the printing press. The line from King Diarmiud is "to every cow her calf" though obviously he didn't speak modern English. I don't think this historical fact has a ton of bearing on our modern system, so I'm not going to explain the metaphor, but I did find it interesting.

After 550, some important dates are:

1476 -- William Caxton invented the printing Press
1556 -- Charter of the Stationer's Company, copyright used as a tool of censorship
1710 -- Statute of Anne, first recognition of the rights of authors in English law and first recognition of public domain

Professor Richey used a line which I thought was interesting given the modern context - "when there is new technology, copyright law goes berserk." She didn't really seem to put a moral stamp on that statement. If I were to say something like that, I would certainly mean that we as a society had not learned from the past. She seemed to say it in a descriptive manner. It makes me think maybe we as a community should spend less time complaining about player pianos and more time just fixing things. While a day later I hesitate to call it an epiphany, I think it's similar to what I discovered in Constitutional Law last semester. The framer's designed the Constitution for gridlock. Political douche-baggery is not a bug, it is a feature. Now, the context might be different with broadcast television and the Internet, but still, it was something I came away with. Anyway, we'll see if that statement holds sway with me at the end of the semester.

We briefly discussed compilations vs. databases, some history of the copyright act in the US and derivative works, but those are all topics we'll discuss in greater detail at a later date. In fact, as I already mentioned, the readings for tomorrow as the same as the ones for yesterday, so I may bring you more information on those tomorrow or Friday. I do want to mention one other broad thing before I call it quits for the day. Remember, copyright does not protect abstract ideas, facts or scientific principles.

Lastly, we also went over a list of questions about whether things were copyrightable. Here are a select few. Feel free to leave your thoughts in the comments.
  • movie based on the novel
  • a tourist's instant photograph of a scenic view
  • a professional photograph of the same view
  • an artist's copy of the tourist's photograph 

Tuesday, August 21, 2012

6. Discussion with Creative Commons Canada

This is not legal advice. Leave audio feedback at (512) 686-6329.
This show was edited using GNU/Linux.

Expected Audience:
Individuals interested in the Canadian legal system and international IP issues more generally.

We're back! Rumors of our demise are greatly exaggerated! 
Seriously though, I'd like to apologize to CC Canada, Kent Mewhort and all of our listeners for taking so long to get this show out. Tomorrow I hope to get out our overdue show with CC Japan.

This time Nick and Doug discuss Canadian copyright, the Trans-Pacific Partnership and, of course, Creative Commons with Kent Mewhort of Canadian Internet Policy and Public Interest Clinic and CC Canada.

Click below to read our blow-by-blow show notes.

Monday, August 6, 2012

What legal issues do you spot?

This is not legal advice. Leave audio feedback at (512) 686-6329.

This is going to be an odd post...even by our standards. :) I am both announcing a project called "Sounds of the World Cup" and asking for people's opinions on the project. The project is to be a joint effort between and Music Manumit. The project will be released under CC BY-SA. It is set to be a documentary primarily about fan culture through music.

Let me be clear that is not a fully baked idea, but I have been to the World Cup before, so I do know a little bit about what to expect. On the other hand, I have never been to Brazil, so that will require some additional research. Let's make up a random's 75% percent baked.

The idea is to record game sound and music from each of the 32 represented countries at the 2014 World Cup, as well as festivities in the host cities. We won't know who all of those countries are until October of 2013 and we won't know which cities they will be in until December 2013. Thus, it will be hard to do a budget before then, but if we just assume the worst financially, then I think we will be fine.

The obvious first legal question is licensing of the music and game footage. As you'll see below, language barrier is a concern, but I hope to explain to artists and performers in Brazil of the educational documentary we are trying to make and hope that we get enough live recording to make the video. Otherwise, we can use Jamendo, Free Music Archive and other sources to find music from the 32 nations. Jamendo already has a nice search-by-country feature.

Now, licensing game footage could be harder. I've taken pictures of games in the past, and there has never been a legal issue, but some of the IP-related issues about sponsors in the London Olympics have made a least three people jumpy about this. I'm not particularly jumpy, but we've got some due-diligence to do before we actually file with Kickstarter. As I said on already (link below at the end), this isn't planning on being an expose, so I doubt it will irritate anyone at FIFA. After all, we are planning to release under CC BY-SA, so FIFA would be free to use our footage in their commercials, if we got something good (assuming of course they credited us and made their commercial CC BY-SA...they could always license the BY and SA away for their own use too). I also can't imagine that FIFA would take any interest in us recording fan chants.

I am also hoping to get some commentary from various sports reporters from around the world. I have names in mind, but I don't think this is the place to post them until we have something locked up. There's also a possibility that we'll have some sort of partnership with the USSF. I have no problem saying that since, as an USican, if I were to say "we are working with a national federation," it wouldn't take a rocket scientist to figure out the most likely source. Let me be clear: there is currently NO relationship with the USSF (or FIFA, for that matter).

Brazil is a huge country, so the video team will probably need to split up into sub-teams. I'm hoping we can get press passes for everyone. I don't know how many teams we can have. Of course, each team plays at least three games, so there's the possibility we could just see each team play once. Having footage from each game that would could use would be great, but might not be the best use of resources. That will depend on interest, which countries are in which cities, and which languages we have covered. My brother is the only one that is for sure going with me. He is who went to the last World Cup with me.

I've got a friend from college that does professional video editing and I am planning on getting him on the team. As we "go to press," I have not heard from him. I have no idea if he adds anything language-wise. I am hoping to get a Spanish-speaker involved too. Again, no names until I have things looked up. We have a team member that speaks some French and some Vietnamese, but she can only go for a couple of weeks (also, Vietnamese is probably useless as Vietnam has already been eliminated from World Cup 2014 Qualification). My brother is the other most-likely team member and he speaks German. There is a large German immigrant population in the south, so that could be useful.

I have thought a bit about the budget, but it's going to be hard to plan too much in advance because prices are likely to be more expensive during the event. As I mentioned before, I think the key is to just guess high on everything.

One thing I have not thought at all about is potential donor gifts. That will be a project for another day. I may or may not test the waters with a post here. We try to keep the content strictly legal here and the way I'm convincing myself this particular post works is that I'm asking for audience participation in identifying legal issues.

While not something that will probably give rise to a legal issue, I also want to mention that I've never done a Kickstarter before, so I don't know how long we can make the project for. It seems like we could collect money up until that December because we wouldn't be able to make decisions until then anyway.
So, what legal issues have I missed or over-looked? Any suggestions on the logistical front? Thanks!

As referenced above, I also want to point people to the two discussions about this project that has started on and

How to get in touch:
Music Manumit group usernames: DouglasAWh and revnicklucre. usernames: douglasawh and nrclark.
Status.Net usernames: douglasawh and nrlucre 
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