Copyright and fair use (4): Q and A session

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This is a transcript of the question and answer session from the March 1st 2014 SL Bar Association presentation on Copyright and Fair Use.

If you have come to this page first, please read the introductory notes for details on the presentation and its purpose. Links at the foot of this page provide access to the other sections of this transcript.

Audience questions and comments are indicated via the use of indents and italics.

Would the court take into consideration if the message was one that was antithetical to the original artist’s religious beliefs? (Question in reference to the Seltzer v Green Day Case – see part 3 of this transcript)

00:00 Agenda Faromte (AF): I think that if the secondary use, the next use is antithetical to the original artist’s religious beliefs, that would be very positive towards fair use, because you can make the argument that you’re commenting on the original artist’s religious beliefs, that you’re transforming the statement of the original work into something new that comments on a different religious belief. That you’re parodying the original work’s religious beliefs. I think you can make all kinds of arguments, depending upon what the use is, of course.

0042 Tim Faith (TF): It’s a problem among my graduate students as artists, that it makes you uncomfortable as an artist that someone takes your work and does something with it that really offends you. and I think that there’s a lot of really powerful emotions in play when people strike at something that’s at the core of their belief system.

Probably would depend on the specific context

01:05 TF: I don’t know the answer. I do agree that it might depend on the context.  but I went over things like with the Campbell v Acuff-Rose case.  One of the considerations of the court was that Acuff-Rose wouldn’t licence the use of [the tune to] Pretty Woman to 2 Live Crew. That Acuff-Rose found it offensive to what they were going to do with his [Roy Orbison’s] love ballad, so they wouldn’t agree. So the fact that Acuff-Rose was trying to control the use of the work because they just didn’t like the viewpoint, the court was a lot less sympathetic to the infringement side of that, the plaintiff’s side of that argument.

01:46 TF: And you know, when you’re dealing with religious stuff, it’s a real hot button thing, to take a very religious person’s beliefs and making them into something the opposite of the that. I think that clearly I can licence that use [garbled] and that might very well favour a fair use finding, but i guess it depends on a number of factors, and that might not be the only one.

02:13 AF: I agree. I think that when you start saying, “well I as the original artist find this offensive, therefore it shouldn’t be allowed”, that’s when First Amendment arguments stand the strongest.

02:31 TF: And that’s certain true of the Mattel case. That’s really what Tom Forsythe had to say. He was using Barbie doll in an offensive way to Barbie, or to Mattel, and of course they weren’t going to licence that use to him, they didn’t want that in the public, it was bad for profit. And the court said, “well there is a First Amendment consideration we have to take into account”.

Precisely on the issue of derivative v transformative works, there have been certain cases of content which have given me ideas. For instance, I may see an object (a shoe, an accessory etc) that I *generally* like, but find there are a few things I would want to improve. So, I eyeball it, make some sketches, fire up my favourite 3D graphics app and start working on it (to change some aspects of its aesthetics, or to make a rigged mesh accessory as opposed to a sculpted one), but the basic style and purpose of the two products (mine and the original) is similar. What’s happening here?

02:55 TF: I was thinking about that while Agenda was talking, and one of the things that came to mind is Scènes à faire, which is a doctrine which says when you make another work that is similar to an existing work… For example, Michael Crichton wrote Jurassic Park, and there was a guy [Geoffrey Williams]  that had written a children’s book about dinosaurs , who sued Michael Crichton claiming it was copyright infringement. but one of the things that the court said was under Scènes à faire, if you’re going to write a book about dinosaurs, there’s going to be stuff that every book about dinosaurs is going to have in it. for one thing, there’s going to be dinosaurs, and they look a certain way, they act a certain way, they exists at a certain time, and there’s certain context to it, and you can’t prevent everybody else in the world from writing a book about dinosaurs wherever they might be.

03:35 TF: There’s certainly elements, in everybody’s work, when they’re in the same category or they’re about the same general activity or event. You know, I think about all the teenage vampire  movies; they all share common elements, there’s a common kind-of mythology around vampires and werewolves – so to say that you can’t ever use all that if you want to write a book about teenage vampires, well that’s crazy. The copyright Act doesn’t prevent that.

04:19 TF: But it’s not really obvious where you get into infringement.  The line is grey, it’s not black-and-white about where you cross it and get into being an infringing or derivative work of somebody else’s. The creative aspects of an  original work are going to get more protection; so the fact that I developed the plot a certain way, that I have  certain look or feel to a product. There’s a number of things that may be creative expression, and if that’s what you’re taking, then it’s more likely to be seen as infringing, and less likely to be seen as Scènes à faire.

04:55 TF: But the truth of the matter is that when you’re here in second Life, shoes can only be a certain dimension for them to work as shoes. There’s a lot of different kinds of shoes, but there’s a limit … there’s not like an unlimited number of possibilities, I don’t think, in second life. and so there’s got to be some overlap without intention of infringement. But that was sort-of my reaction to it; that there is a line there where you do become infringing, but there’s not a simple answer.

05:24 AF: I’m going to disagree with you. Scènes à faire  are basically for extremely general categories: a shoe is a shoe, you can’t infringe the idea of a shoe, like a vampire is a vampire; if you’re writing a vampire novel it’s going to have vampires in it. But, as Tim said, once you start getting any of the creative elements in there, that’s when you start getting into copyrightable elements. And what is being asked about is the basic style; and the style is creative. We’re not talking about the general concept of a shoe, we’re talking about the style of the shoe.

06:11 AF: What we’re talking about, as I understand it, is if you see a shoe that is something like Betty Doyle just made for Collabor88 – some of you may be following what I’m talking about and some of you maybe not – these boots that she’s got out there, and you like them, but you want them to lace-up. Well, if you’re just adding some lace-ups on some boots, that’s going to be a derivative work. You’re not making an entirely new work, you’re just adding a little change to something that is already out there. and that would be morally derivative work.

06:52 AF: But, if by “style” you’re saying, “it’s a boot with a wedge heel”, that already exists out there and if you’re using something that already exists out in the world as your inspiration, but which I don’t mean a specific boots, but boots in general, boots with wedge heels in general. then you’re fine. You can’t go make a boot with a wedge heel that laces up.

07:25 TF: Well, the other side of it is there’s other things beside copyright. There’s trade dress, trademark and we also have design patents which could come into play to protect various aspects of the same thing. And the rules vary depending on what you’re talking about under US law for what might constitute infringement for a mark or a trade dress or of someone’s design patent, so it depends.

07:51 TF: I think the reality is for artists is that we draw inspiration from the world, and that includes the work of other people who are in our industry or in our Business. I look at other painter’s works, I can’t be blind to that, I’m influenced by it. So it’s not that it can’t possibly be wrong,  because that’s how artists have always made art. It’s ridiculous to say otherwise. But I think that there is a line that you end up crossing into infringement, and you see that sometimes.

08:23 TF: When you watch Project runway, sometimes you see designers do rip each other off, and I think that they’re just in a hurry and they’re trying to get something done, but that like, “that’s obviously infringement”, while I think a lot of it is, if you had to do a ballroom dress or gown, there’s a limit on the total number of possible options to really make it a different dress. and everything has been done; that’s really what the 20th century artist would tell you, is that everything has been done. What do you have to say? So it’s hard. I think it’s really a struggle to make it simple.

What’s the current state of the law as to creation of a similar work independently i.e. without having seen and copied the original?

09:03 AF: That again is something that is entirely fact-specific. That is something that gets litigated constantly. There’s several different tests that are used, and it even depends on where you are, which court is listening to you, and it really depends on … if you can actually prove that two people created the same thing independently and never had any opportunity to see what the other was doing or know that the other was doing it: independent creation, peachy, you’re both fine, they’re both copyrightable. But it’s rare.

09:52 TF: Yeah, it’s either the striking similarity test, which says there’s just no way you could have made that without copying the original; and then it’s a question of access versus substantial similarity, and that’s not really obvious either from the cases [garbled] … you know, a really well-known, famous, internationally distributed shoe is going to require a lot less proof of access under the circumstances than a shoe that I would make, because no-one know me at all in terms of shoemaking. So just because you have a shoe that looks just like mine, that would be hard to prove infringement, I would think.

10:32 AF: Yeah, lack of access is really hard to prove now that the Internet exists.

11:37 TF: It’s a funny place. I think that it’s hard to say that if you’re really in the market, if you really do make art or something in particular, it’s hard to say you didn’t have access at all to someone else’s stuff. I agree with that, for sure. And Second Life and other digital platforms just make it that much easier to be exposed to stuff. But,  you know, it also does have to be substantially similar, and that’s a question of fact right there if it’s really not obvious.

11:07 AF: Oh, someone did mention something about hills looking just like certain sims, and i did want to mention that there’s a case that talks about copyright in Second Life landscaping.; basically sim creation in Second Life, and it’s super interesting and it’s currently going on.

11:30 TF: I think we really are at a turning point, because I think, because there’s just so much going on in the world technologically. For one thing, I mean it’s very easy today to copy stuff where it was much harder 20 or 30 years ago. You know I typed in chat that we have 3D printers. 3D printers are incredibly powerful tools to make a real-world equivalent of something you just have electronically somewhere.; and that didn’t exist ten years ago.

12:03 TF: Google Books, at the time of scanning 20 million books seemed like an enormous undertaking, but i think that today that’s a lot more commonplace, to be able to scale wholesale stuff and index it.  So I think, we will face in the next five or ten years, some pretty important cases because of technology, and it’ll be interesting to see what happens. i think it would be a shame if it destroyed the opportunity for artists to try to make a living, which is always the fear. But on the other hand, artists themselves adopt technology and make art, so it may go both ways with that.

If you have been following the news a lot of content providers are using copyright to take down unfavourable reviews. This has been happening on You Tube and video game reviewers It is a terrible way to censor people

12:44 AF: Yes, that’s certainly happening. It’s not legal, but it’s happening. I can’t really comment on it more than that, but it’s happening. It’s unfortunate that it’s happening and people don’t really have the resources to fight back. but those who are fighting back are usually winning. Not always, unfortunately, but usually winning. and yes, it’s a terrible way to censor people.

13:09 TF: And Agenda, there was a comment earlier in the chat window that we have people who are copybotters and they don’t ever seem to be stopped. And I think the one of the unfortunate dark sides of all this technology is … if some joker in Romania is infringing outright on someone’s works in the United States, it’s really expensive to chase him down. and some counties are not even signatories to the same Berne convention as the rest of us, and they don’t respect anyone’s copyright interest.

13:41 TF: There is, because I think we’ve gotten to be a smaller place, that it’s more of an international world, that it is a lot more expensive and complicated to solve. Back in the day, if I was in Maryland and someone else in Maryland infringed on my works, I could file a lawsuit – that was expensive, but it wasn’t ridiculous – and I could probably prevail on that. But for a small business to hire a lawyer and spend maybe $100,000, and maybe get your attorney’s fees and maybe not; there is an access to justice issue, and I’m not sure how to get an answer to that. I think it’s really unfortunate that a lot of people can’t afford it. but lawyers can’t live off nothing; some of us are maybe independently wealthy, but many of us are just getting by, so you know, I can’t take a case and litigate for two years and never get paid. That doesn’t work. so there really are a lot of other practical considerations with this.

14:41 TF: Agenda and I have talked at more of a theoretical level about what the law sort-of is, but there is a practical reality that’s hard to enforce … and in Second Life itself, I guess you could file a take-down notice. I assume they respond to those; I don’t know how effective that really is. Especially as you can create alternate avatars with different e-mail addresses – it’s hard to police all that stuff and really have it effective.

If I was rich. I would hire lawyers and just pay them to help people who have little money who need things like this.

15:08 AF: That’s what the EFF tries to do, and I’ve got a lot of good friends at the EFF and I try to work with them when I can. If you find yourself with a whole lot of money just sitting around, go support the EFF. That’s exactly what they do.

15:26 TF: Well, thanks everybody for coming by, and if you have any other questions, you’re welcome to message either Agenda or I. I hope that we’ll have future presentations and they’ll be of interest to everybody. And again, thank you.

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