Happy World Intellectual Property Day

The theme of this year’s World Intellectual Property Day is “Designing the Future.” According to the remarks of the Director General of the World Intellectual Property Organization (WIPO), “With today’s increasing emphasis on ecologically sound living, 'designing out waste' is now an aspiration shared by many creators. The designs of the future will necessarily be green, and the intellectual property system will encourage designers to produce them, by helping to protect original designs against unauthorized copying and imitation.”  

My vote for a clever, recent sustainable design is Studio Aisslinger’s, Yill, a mobile energy storage unit that can store enough energy from solar panels and other renewable sources to power a modern workstation for two to three days without cords or cables. 

Image from Studio Aisslinger’s website.

Do you have any cool sustainable designs you’d like to share?

Event: Legal Issues for Dance Companies

The New York Foundation for the Arts and the New York State Bar Association are presenting a free, all-day symposium on legal issues for dance companies at NYU School of Law (RSVP required). Topics include copyright ownership of dances, business entities and accounting, and contracting with collaborators. More information at http://www.nyfa.org/level3.asp?id=841&fid=2&sid=78. I will be there for sure!

Artist visa renewals get easier for UK applicants

Good news for artist visa holders from the UK: when it's time to renew your visa, the US Consulate in London may reissue the visa without you having to attend an interview in London. In order to qualify, you have to meet certain requirements such as having provided a full set of fingerprints when you last applied for your visa. More info on eligibility for the expedited process is available here, from the consulate's website. Hopefully, other US consulates will start following the London consulate's lead!

Hardcore Infringement

Oh the irony!  Back in January, I brought you the story of a Dutch court whose decision in a copyright infringement lawsuit plagiarized (and possibly infringed) another lawyer's work. Well, those fast and loose copyright attorneys are at it again. A Chicago lawyer named John Steele has filed a lawsuit suing hundreds (if not thousands) of file-sharers for copyright infringement on behalf of First Time Videos LLC, "a leading producer and distributor of adult entertainment content within the transsexual niche." But Mr. Steele sets a poor example for all the porno buffs out there who just got sued. According to Ars Technica, the complaint that Mr. Steele filed with the court is itself a glittering monument to infringement, with swathes of text lifted word-for-word from complaints filed by another company, the U.S. Copyright Group. Fortunately for Mr. Steele, the U.S. Copyright Group doesn't mind. Says Tom Dunlap, who wrote the filings that Mr. Steele infringed, "I don't know Steele but I'm flattered he likes my pleadings."

In Mr. Steele's defense, he's not an expert in copyright law. He makes his bread and butter from matrimonial cases and his number (if you happen to be in northern Illinois) is 1-800-DIVORCE.

via Ars Technica.

Ladies and gentlemen, the Innovative Design Protection and Privacy Prevention Act

Early this summer, I wrote a post about how fashion designers are bereft of copyright protection. Turns out, Chuck Schumer and the Council of Fashion Designers of America are trying to do something about it. In August, Senator Schumer introduced proposed legislation into Congress that, if passed, would extend limited copyright protection to fashion designs. Specifically, the new legislation would protect any fashion design from being copied for a period of three years from the date the fashion design is made public. You can read the bill here.

Clearly, a lot of designers are in support of the proposed legislation. On the other hand, Johanna Blakley, our fashion theorist in a bullet-proof vest from early this summer, points out that "right now, designers pore over vintage magazines and patterns and visit museum archives in order to find inspiration for the next season’s look, cherry picking design elements that feel fresh and in line with the current zeitgeist. It’s a refreshingly open process unhindered by legal consultations. Those archives could become battlefields where litigants try to find evidence to support their assertion that a design is or is not unique. The geeky librarian in me is worried that some powerful people may attempt to limit access to particularly rich collections of design history and some unscrupulous types may destroy or hide rare materials that prove that their new design isn’t as unique as they claim."

The perils of licensing defunct texts

The unfortunate thing about our present copyright system is that some copyright owners are easy to find and some are not. I wrote previously about how this phenomenon affects academics, so I really enjoyed a recent blog entry entitled "Don't do Art History" by Mary Beard, a professor of classics at Cambridge, about her harrowing experiences trying to get rights to reproduce photos from the Soprintendenza of Pompeii and other characters.

Everything you ever wanted to know about artist visas

I get a lot of questions about artist visas so I added a page on my website about them (plug for my law practice: artist visa preparation is one of my practice areas).

View it at www.justinlynchlaw.com/artist_visas.html.

What's so great about copyright if fashion designers do well without it?

One of the traditional justifications for copyright law is that without it, creative people will be discouraged from creating.  The fashion industry is a counterexample, because it has flourished in the absence of copyright protection for clothing (clothes are considered too "utilitarian" to qualify for copyright protection, in the same way that a recipe or a park bench can't be copyrighted, no matter how fanciful).  Of course, creativity has never needed copyright law, which was only recently invented anyway.  Johanna Blakley, in her entertaining presentation on copyright and the fashion industry, displays a chart that shows that revenues in "low IP" industries such as clothing and food dwarf those of "high IP" industries such as music, books and films.  But the clothing and food industries also have going for them the fact that without clothing and food, we'd all be naked and starving: their survival in the absence of copyright protection is no surprise.  Revenues aside, Ms. Blakley has some interesting observations about how the lack of copyright protection in the fashion industry may contribute to increased innovation.

But the big unanswered question in this presentation on fashion and the law is why Ms. Blakley is wearing a jacket that looks like it was inspired by a bullet-proof vest.   

Photo Licensing 101

Getty Images has launched a new website to educate people on the nuts and bolts of photo licensing. Developed in response to a survey that found a woeful level of misinformation, even among creative industry professionals, about the legal aspects of using photos found on the Internet (for example, um... the importance of getting permission from the photographer, not to mention the model), www.stockphotorights.com provides "an educational resource for image buyers and a go-to place for debate, discussion, news and information for members of the photography community."

The site contains a lot of great information, albeit with a few inaccuracies (for example, the FAQs at one point seem to imply that all photographs are under copyright, which isn't true). Needless to say, the site also encourages image users to license their images from stock photo agencies such as Getty Images. That said, the good thing about licensing through Getty Images and similar agencies is that they will tell you whether or not a model release has been obtained for a particular photo and the purposes for which the photo can be used, and, in the event that they failed to obtain the permissions that they promised they obtained, they will indemnify you if you get in trouble as a result (i.e., they will foot the bill).

The video below, from the site's homepage, explains the various rights that different people may have with respect to a single image: it is necessary that permission from all rights holders be obtained before using an image.

Judges are dance theorists too

                (photo: alexbcthompson)

How many people learn the steps from the Single Ladies video by watching Beyonce on YouTube? Well apparently, a dance you learn by looking at a YouTube video is not choreography, at least not under New York tax law.

New York imposes a four percent sales tax on admission charges at “places of amusement.” However, charges paid for admission to live, choreographic performances are exempt from the tax. The Tax Appeals Tribunal of New York recently decided a case in which Nite Moves, a strip club in an Albany suburb, claimed that its cover charges are not taxable because the pole dancing routines at its establishment are choreographic performances. To support this argument, Nite Moves turned to Judith Lynne Hanna, a specialist on exotic dance and adult entertainment. Dr. Hanna reviewed DVD footage of exotic dance routines performed at Nite Moves and stated that they indeed were live, choreographed performances.

The tribunal differed. Strangely, it seemed to take the view that for a dance routine to be a live choreographed performance, the performer must have actually created the steps.

“With regard to whether it is a choreographed performance, we note that the record sets forth how the dancers help each other when they are getting started, how they view other dancers on YouTube and practice the dances they see on the internet. . . . We question how much planning goes into attempting a dance seen on YouTube. . . . Dr. Hanna said, inter alia, that she saw a range of movements typical of adult entertainment elsewhere and that she saw the individual creativity of the dancers. It is unclear how, based on a 22 minute DVD, Dr. Hanna could divine a particular dancer's 'creativity' as opposed to a dancer on YouTube, for instance, from which the performance may have been copied.”

This is odd. According to the tribunal, the YouTube routines may have been choreographed, but when they are replicated by other dancers, they are not choreographed. The question for the court should not have been “how much planning goes into attempting a dance seen on YouTube,” but how much planning went into creating the dance seen on YouTube. The tribunal's decision also happens to be at odds with the practice of many dance companies that often have dancers consult video footage to learn choreography. (Actually, judges routinely throw logic out the window when strippers are around. For a Freudian reading of why this might be so, you might enjoy Amy Adler's Girls! Girls! Girls!: The Supreme Court Confronts the G-String).

Strip clubs were probably not among the intended beneficiaries of the tax law’s exemption for choreographed performances. But if Nite Moves is not entitled to the exemption, the reason cannot be that its dancers get their routines from YouTube.

The tribunal's decision is here.

06/04/2010 Update: Alistair Macaulay, chief dance critic of The New York Times, has declared the male pole dancing routine in Cirque du Soleil's latest production, Banana Shpeel, "the most enchanting new choreography around Broadway."  

Copyright judges seen running away with stolen paragraph

A Dutch court has held that placing embedded links on a website without permission from the author of the linked content is copyright infringement (an embedded link allows a visitor to a website to view content on an external site, such as a YouTube video, without having to go to that site). Interestingly, the court's ruling plagiarizes a blog post by Douwe Linders, an attorney at Netherlands IP boutique SOLV Advocaten. The offending text, which was lifted word-for-word from the blog post and, ahem, embedded into the opinion without quotation marks or any mention of its provenance, reads: "In case law and legal literature it is generally held that an embedded link constitutes a publication. After all, the material can be viewed or heard within the context of the website of those who placed the link, and placement causes the material to reach a new audience." You would think that judges who come down on the side of authors would follow the don't-plagiarize rule they learned as kids.

Now, in the United States at least, plagiarism and copyright infringement are not the same. The U.S. Copyright Office's fair use factsheet includes "quotations of short passages in a scholarly or technical work, for illustration or clarification of the author's observations" among its examples of fair uses. However, actually using quotation marks and attributing the source of the quoted text would strengthen the fair use argument. After all, Mr. Linders' words "can be viewed or heard within the context of the [opinion], and placement causes the material to reach a new audience."

(via 24 oranges)

Free talk on arts law issues

Artist/lawyer Sergio Muñoz Sarmiento, author of the thoughtful website Clancco.com and attorney at Volunteer Lawyers for the Arts, presents a free talk on his experiences at the intersection of art and law, specifically the legal issues that arise in the implementation of art projects. RSVP required.

Thursday, February 18, 2010 at 6:30

Lower Manhattan Cultural Council

Click here for workshop description and RSVP form.

Adventures in legal advertising

Introducing the very funny law firm commercial. A little off-topic for arts law roundup perhaps, but this blog is also about entrepreneurship. How many law firm commercials have made you laugh?

(via Lowering the Bar)

Tino Sehgal's Immaterial Art

The New York Times Magazine has a very interesting article about Tino Sehgal, the Berlin-based conceptual artist. Sehgal experimented with dance early in his career, but his recent creations, which he calls "staged situations," are conceived as artworks rather than theater, and have been acquired by the Tate and the Museum of Modern Art, among others. Nevertheless, his work builds on the ephemerality of dance (unless it's recorded, a dance performance is gone as soon as it is performed) and takes that quality to its logical extreme. Sehgal is adamant that his work be completely intangible: it cannot be documented in any way, which means it can't be photographed or publicized and is bought and sold without involving any objects whatsoever.

The only objects in the works themselves are human beings. For example, in This situation, the viewer is greeted by six people who intone "Welcome to this situation" in unison and then engage in a conversation inspired by a quote spoken by one of the six, all the while making slow, tai-chi like movements and occasionally including the visitor in the discussion. The process is repeated each time a new visitor enters the gallery.

The legal aspects of buying and selling this art can be confounding. The Times writes: "Since there can be no written contract, the sale of a Sehgal piece must be conducted orally, with a lawyer or a notary public on hand to witness it. The work is described; the right to install it for an unspecified number of times under the supervision of Sehgal or one of his representatives is stipulated; and the price is stated. The buyer agrees to certain restrictions, perhaps the most important being the ban on future documentation, which extends to any subsequent transfers of ownership. 'If the work gets resold, it has to be done in the same way it was acquired originally,' says Jan Mot, who is Sehgal’s dealer in Brussels. 'If it is not done according to the conditions of the first sale, one could debate whether it was an authentic sale. It’s like making a false Tino Sehgal, if you start making documentation and a certificate.'"

So if you document the work in any way, you've suddenly got a forgery on your hands. Sehgal isn't kidding when he says his work is ephemeral.

Two of Sehgal's works will occupy the entire Guggenheim rotunda, January 29 - March 10, 2010. Information about the exhibit is here.

Related post: Another reason for choreographers to videotape their work.

The Smooth Criminal's Patented Shoes

Michael Jackson and his dancers were able to lean forward beyond their centers of gravity (CG in the drawing below) during live performances of "Smooth Criminal" thanks to specially designed shoes patented by the King of Pop:

U.S. Patent Number 5,255,452, filed by Michael Jackson in 1993, explains that “in the past, a professional entertainer, one of the inventors herein, has incorporated dance steps in his recorded video performances, wherein he and other dancers would lean forward beyond their center of gravity, thereby creating an impressive visual effect. This effect was accomplished by the use of cables connecting a harness around the dancer’s waist with hooks onstage.… However, since this requires stagehands to connect and then disconnect the cables, it has not been possible to use this system in live performances.” The shoes solve this problem by allowing the performer, “by engaging the shoes onto an upstanding post positioned to project upwardly from a stage at a predetermined time, to lean forwardly or put his or her center of gravity beyond the front or rear of his shoes, thereby creating the desired gravity defying interesting effect.”

In a description of similar existing patents, Michael Jackson’s patent mentions footwear worn by astronauts which can be locked onto a rail to aid them in working in a zero-gravity environment.

I would provide a link to a youtube video showing the shoes in action, but my ability to do so without committing copyright infringement is an unsettled question.

(via Boing Boing Gadgets)

A Word to the Wise: "We're Not in the Sandbox"

A New York Times report about a contract dispute between a choreographer and the 92nd Street Y highlights how important it is for artists to have an outside eye scrutinize the agreements they enter into.  The Y commissioned Pavel Zustiak, a Czech choreographer, to create a work to be premiered at the Y's Harkness Dance Festival in New York City, and included a clause in its contract that forbade Mr. Zustiak from presenting any work in New York for a period of six months before and three months after the premiere.  Theaters frequently have this type of clause in their contracts with performers.  Mr. Zustiak ran afoul of the agreement when, thinking that the exclusivity provision applied only to performances of the Y-commissioned work, he scheduled a performance of one of his other works at a Manhattan venue less than three months prior to the scheduled Y performance.  Mr. Zustiak ended up paying the Y to guarantee at least $8,000 in box office receipts, and lost $1,200 in the process. 

The article also mentions the ordeal of choreographer Laura Peterson, who lost thousands as a result of not having a contract with a theater that cancelled a production of her show at the last minute.  The moral of the story is that artists need to put their agreements into writing and have someone qualified review them.  To quote one theater director: “From the perspective of an artist, you’re always thinking, ‘I’m so poor, how can anybody be taking money from me, that’s so mean.’  But it is a business; we’re not in the sandbox.”

You Do Not Have A Right To Be Credited, Part I

People often think that if they create a work, they automatically have a right to be credited as that work’s author. And people often think that if they reproduce someone else’s work (say by placing a photo in a blog), then the way to comply with copyright law is to give that person credit.

These are misconceptions. In general, there is no rule of law in America that says that authors must be credited for their works. And that has been the state of affairs in the United States and Britain ever since Queen Anne, whose Statute of Anne was enacted in 1710 to protect authors from the printers and booksellers who were publishing and reprinting books without the authors’ permission, to the authors’ “very great Detriment, and too often to the Ruin of them and their Families.” This was a statute about giving authors exclusive control over the dissemination of their works, so that printers would have to pay authors for the privilege of publishing books. The idea was that these economic rewards would provide sufficient incentive for authors to write books. And since lofty things like authorial attribution have little to do with hard cash, the Statute of Anne leaves them alone. Copyright law was, and still is to a great degree, concerned with providing economic incentives to creativity: art is a commodity.

Things developed very differently on the European continent, most notably France. There, maybe because writers were the ones making up the law in the aftermath of the French Revolution, the right of attribution is just one of many so-called “moral rights” that authors enjoy. Protection for these non-economic rights is so strong in Europe that someone once got into trouble for placing his business cards next to a collection of art book covers, possibly causing one or two people to mistakenly think that he was the author of those book covers (the one-sentence judgment of France's Cour de Cassation is here).

If you are a creative artist working in the United States, however, all is not lost. In an effort to bring its protection of artistic works into line with international standards, the United States does provide for a right of attribution in the case of certain works of visual art. Also, you can include a provision requiring proper attribution in any license agreements you enter into. I will discuss these possibilities in Part II of this entry.

Enclosing the Commons of the Mind

Did you know that we have scores of films crumbling to dust in libraries all over the country because transferring such works to more durable media would require the permission of the copyright owners – who are nowhere to be found?

Did you know that IBM makes twice as much money from its non-copyright protected software than its patent portfolio (which is, ahem, the biggest patent portfolio in the world)?

If you didn’t know these things, you might enjoy downloading a lecture by James Boyle, the witty and urbane author of The Public Domain: Enclosing the Commons of the Mind. His topic is the vitality of the public domain to creativity. Copyright policymakers often make their decisions based on an assumption that since the purpose of copyright is to incentivize authors to create, enhanced copyright protections must lead to more creation. But, Boyle argues, this assumption is made in the absence of empirical data. He notes that the World Intellectual Property Organization (WIPO) had until recently no economists on staff, apparently because copyright policymakers have scant regard for actual data on how their own policies might affect creative output.

The problem in Boyle’s view is that we all (copyright policymakers included) have a bias against openness. This bias is not based in reality. Who would have thought that Wikipedia would be more reliable than Britannica? Who would have thought that open-source software would be so successful (see IBM example above)? These are examples of Internet-based creative works that have flourished in the absence of conventional copyright protections. They are also creative works that have been immeasurably beneficial to humanity.

In Boyle’s words, “we built the Web for science and make it work [only] for porn, shoes and books.” That is because, although the Internet is uniquely capable of gathering together stores of information from an infinite number of inputs, we have a copyright system that often inhibits access to such information in ways that are of little benefit to authors. For example, the films crumbling to dust that I cited at the beginning of this post. Most books published after 1923 are both copyright protected and out-of-print and have outlived their economic use to their authors (many of whom are actually dead). Think of the knowledge that would be at our fingertips if we could make all this commercially unviable work available on the Internet.

Boyle’s lecture is available here. You can also go to iTunes and download it as a podcast. My synopsis does no justice to how engaging a speaker he is. You should take a listen.

PS. Appropriately, you can either buy his book on Amazon or download it for free.

German Court: OK to Reprint Nazi-Era Newspapers

The state of Bavaria unsuccessfully tried to prevent a publication from reprinting Nazi newspapers by claiming it held the copyright to the papers. But the court held that the rights on editions published before 1939 have expired. Read the full article here.

Another Reason for Choreographers to Videotape Their Work

Many choreographers are understandably wary of videotaping their work because they don’t want someone to use the recording to steal their choreography. Especially for choreography that is new or otherwise not well known, the chances are high that someone who plagiarizes it will be able to present it at a venue without anyone in the audience realizing that the choreography is stolen. However, besides the fact that not videotaping choreography isn't always the best business move (is preventing plagiarism more important than building an audience by publicizing your work?), it's not wise from a legal standpoint either. Copyright law only protects choreography that has been captured on video (or written down using dance notation). That means that choreographers need to record their dances if they want to have legal recourse in the event that someone comes along and copies their choreography without permission.

In order for a work to be protected by copyright, it has to be fixed in a “tangible medium of expression.” Such media include paper, canvas, zeros and ones (in the case of software and digital recordings), film, fabric, stone, concrete, bottles and cans… and on and on and on. Choreography that exists only in the brains of the dancers who perform it has not been fixed, and therefore is not protected by copyright. The same goes for a song that a musician performs at an open-mike but never writes down or records.

To provide themselves with a remedy against unauthorized copying, choreographers need to videotape their work. There’s no need to share the recording with anyone (although registering the copyright with the Copyright Office at the Library of Congress by filling out a form and sending in a video is a good extra precaution, not to mention a prerequisite for suing someone for copyright infringement; the whole process, including video submission, can now be completed online: www.copyright.gov/eco/index.html).

Remember, no recording equals no copyright protection!