Tuesday, April 25, 2006

How Copyright is Getting a Bad Name

Last week the Estate of artist Joan Miro demonstrated why copyright has gotten a bad name; not just among those who don't believe in protection at all, but among those, like myself, who have believed that the existence of protection is important and appropriate, and at a fair high level. Marty Schwimmer's Trademark Blog has the pictures and details. The short story is this. Last week, Google, in keeping with an occasional practice of honoring holidays or famous people, temporarily modified its logo on its search page with a stylized version of its name that evoked, but did not copy from Miro's works. When I saw it, I got the point and thought it quite clever and fun. Miro's estate thought otherwise, immediately sending a cease-and-desist letter, claiming copyright and moral rights violations. In my opinion, there was neither. Google did the sensible thing, though, and pulled the logo, to all of our loss.

Through its licensing agent, the Artists Rights Society, the Miro estate is quoted as being "very upset about it." And here is the kicker: the spokesperson is quoted as also saying "A lot of problems could have been alleviated if Google had informed the family first. But I'm not saying the family would have agreed to it." Both remarks sets out well why copyright has gotten a bad name. I guess the problems would have been alleviated by simply saying no. But what is there to be upset about? No Miro work was copied. It was not an attempt to market Miro, but rather to recognize him in a sly, amusing way. It was not a commercial use in any realistic way. This is not the first time the Miro estate has, in my opinion, overplayed its hand. An earlier dispute over Miro and DeChamp typefonts is further illustration of what in my opinion is misuse of the existence of some protection to claim protection that doesn't exist.

Miro died in 1983. Suppressing some uses might have been justifiable (although not Google's) during his life, but not now. In 1994, in the House of Representatives, we rejected lobbying requests by the estates of Tin Pan Alley composers for term extension. I later wrote a law article about it called, in brief "protecting the idle rich." The tragedy is that such unseemly efforts give fodder to those who oppose any protection.

25 comments:

Anonymous said...

Prof. Patry--
I don't think that it's appropriate to lump everyone opposed to copyright together. I think that there are generally two distinct groups of people who advocate this position. One group are people who are simply opposed to copyright altogether. I would agree that these people are worth criticizing.

On the other hand, though, are people who are not opposed to the very idea of copyright, but who simply feel that the public interest is best served by not having copyright. If they felt that some degree of copyright (however great or slight) was better, then they'd support that. They just happen to think that, given current conditions, copyright never results in any net benefit. While I think we can disagree with their conclusion, just as we might disagree with one another as to precisely what configuration of copyright laws does yield the greatest net public benefit, they are at least arriving at their conclusion by the proper method.

They don't deserve to be lumped in with the first group, simply because the answer they've arrived at happens to be the same. It would be like lumping together people who are opposed to terms based on the life of the author because they feel they're too long for the additional benefit provided with people who are against the same terms because of a pathological hatred of widows and orphans.

Of course, there's no tragedy in copyright maximalists like the estate in question giving fodder to those who want to reduce copyright to a reasonable level. It would be nice if it were already reasonable, but if it's not, this sort of thing is what it's going to take in order to make it reasonable.

Anonymous said...

Speaking of copyright getting a bad name, many of us would be interested in your views on the proposed revisions to section 1201 currently before Congress -- especially addition of attempt and conspiracy and the removal of a registration requirement. At the same time there are revisions to the trademark dilution statute that would expressly remove the news reporting, fair use, and non-commercial use exceptions to dilution.

I'm forced to wonder whether either of these bills -- if they became law -- would result in an overplayed hand by those of us in the IP community.

Even Eldred recognized that first amendment issues may arise when a copyright bill exceeds the traditional bounds of copyright law - and conspiracy to attempt copyright infringement of a non-registered work does not sound like traditional copyright law to me - and Moseley recognized that broad statutory interpretations of the existing dilution statute would trigger first amendment concerns.

These efforts represent (to me) three ways to use copyright (and to a lesser extent trademark law) to control expression much more broadly than a mere copyright registration or trademark registration would apparently allow.

One stems from the vagueness of fair use under section 107 -- as with Google's decision to remove the Miro tribute, section 107 is hazy enough that any author (whether large like Google or small like an individual blogger) will practice self-restraint given the lack of clarity on what is acceptable as fair use. I think this is might be called "horizontal controls" on third party legal use of your copyrighted work.

Another stems from the access controls permitted under the DMCA. Since access controls are almost universally software-based, the controls can be narrowly cast by the copyright holder or copyright holder's agent (as in Apple's FairPlay system in iTunes) to protect only rights under section 106 or it can be broadly hewn to limit many uses beyond the traditional scope of copyright, where copyright is used as a wedge to cover a primarily non-copyright economic interest (take, for example, the Chamberlain and Lexmark cases). These are "vertical controls" on third party legal copyright use, access, and distribution.

Finally, via criminalization efforts, some of which have legitimate grounds (such as the original NET Act), and some of which seem more extreme (current bills to revise the DMCA), the end result is a chilling effect on the development of new technologies, academic discussions, and new business models, while doing little to stop large scale piracy that mostly occurs outside the territorial reach of the United States. I call this "punative controls" on third party legal uses of technology, information, and copyrighted works.

The end result of horizontal, vertical and punative controls on purely legal uses of a third party's copyrighted works or other technologies are (1) huge economic dead-weight loss to consumers and would-be competitors, in an antitrust context, as unregulated uses and any attempt to compete in distribution or technology become subject to licensing, proprietary technologies, and criminalization, (2) increased flight of talent and capital outside the United States as new companies, technologies, and academic studies face increasing legal risks in the United States, and (3) a massive increase in public disrespect and dislike for copyright law in general. The current bills in congress, and actions like the Miro representatives' actions, only go further to bolster my belief that these three negative economic consequences of overregulation of the legal use of third party's copyrighted works are slowly leading to the close of a century of incredibly creative, valuable and lucrative development of IP in the United States.

-DTH

Anonymous said...

Google's legal department must have had the day off. What happened to 37 CFR 202.1(a)?

§ 202.1 Material not subject to copyright.

The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained:
(a) ... mere variations of typographic ornamentation, lettering or coloring

William Patry said...

Dear Anonymous 1

I can see how my comments might be easily read that way, but I didn't mean to put all those who have objections to some aspect of copyright into a class with those who question the validity of it entirely. Indeed, the broad brush nature of copyright protection to forms of protection that either are not appropriate for copyright protection at all or that need a very limited scope of protection is what led to thoughtful commentary like then law professor Stephen Breyer's "Uneasy Case for Copyright Protection." A one-size fits all approach has serious disadvantages, appreciating that it is nearly if not impossible a priori to determine how much protection might be necessary.

Then there is the issue addressed in the blog, which is rank overreaching. I certainly agree with the concerns expressed in Anonymous #2s comments, and the efforts of estates to suppress uses out of mistaken belief that they own "property" rather than a limited statutory grant given in the public interest has been played out in other areas. As I recall the bargain struck in the original DMCA bills, was this: "There is a wonderful but dangerous new thing called the Information Superhighway. Copyright owners want to put their cars on the highway, but it is too dangerous to do so without good police protection. Until we get good police protection, it is not prudent to do so. But if we get police protection we will and the public will be better off because of the increased number of cars on the road." Copyright owners got the police protection en masse but the number of cars and the conditions of their use is small. So I don't favor any improvements to the police until there are more cars available.

One route to deal with overreaching has been proposed by Judge Posner and that is use of a vigorous misuse defense. In the Ty Beanie Babies case he spoke to it and in the debate with Judge Kozinski at the Copyright Society in New York City in 2004, he actively enouraged lawyers to start developing it. Gentlemen, start your engines!

Jonathan Bailey said...

One of the things that I feel is giving copyright a bad name is the use of copyright law to settle other kinds of legal disputes on the Web.

There's a lot of reports of the DMCA being used to end disputes that are, in truth, related to trademark, libel, invasion of privacy or other torts altogether.

Using copyright law is easy and cheap, especially when compared to trademark and libel matters. Thus, people favor making just about every case a copyright one for the sake of time and money.

I'm in the process of writing a guide for ethical plagiarism fighting on the Web. It addresses many of these issues and encourages those protecting their copyrights not to engage in acts that give copyright a bad name.

I'm open to suggestions on what to include...

William Patry said...

Jonathan:

I agree that copyright is being misused for things that don't properly arise under it, the Miro example being a good one. For such claims, it is of course, not the existence of too much protection that is at fault, but rather, a delusional view of the law. I hope your guide is successful.

joshua wattles said...

Some time ago, Andy Warhol ran out of rich prominent people willing to pay him a huge commission on a portrait and very cleverly thought up a scheme to make portraits of corporate logos. I worked at one of the first companies he chose and had an artist’s proof of his silkscreen directly behind my desk positioned like a “great seal.” I was impressed. My visitors probably thought it was over-the-top. Warhol, of course, famously turned commercial trademarks into high art but not without legal hassles for doing so usually settled with artworks. I helped settled one such case. So it is not surprising to see the Miro estate turn the tables on a reverse appropriation. Here comes Google, certainly one of the most cash rich companies in the world, appropriating Miro’s works in style and purpose to effect two separate and (likely) equal goals: a tribute to the artist on his birthdate and the advancement of its corporate image for its own benefit. The latter, as a matter of good behavior, would seem to require some sort of permission from the estate.

The Miro estate is purposed with generating value from the artist’s works no differently than Williamson Music exploits the works of Oscar Hammerstein II. When all content on the Internet is audio visual, would Google ever get away with a parody of “The hills are alive with the sounds of Google?” And parody would seem to be the right analytical path here. I think the posters are jumping to an awfully quick and perhaps not fully informed conclusion that the Google graphic in issue did not borrow directly from various works of Miro, of which there are many in the idiom of the parody logo.

Certainly as soon as I saw it I wondered if the Miro logo had been used on Google as available in France where I think it would have been enjoined with damages on droit morale grounds.

Bruce said...

More proof (if any was needed) that anyone can send a threatening letter.

Cynthia Turner said...

Finally, Joshua Wattles brings some common sense and some common decency to this issue.

Google may assert the derivative logo is a "tribute" to Miro. But, the fact remains the exploitation of Miro's reputation and stature reflects positively on Google. If Miro’s heirs, as custodians of the integrity of Miro's legacy, don't wish to have Miro's art exploited by Google, it's their prerogative.

It's irrelevant whether you or I "agree" with the heirs’ decision.

I believe it is a moral rights violation. Many artists do not want their works associated with products, companies or causes they do not support. They exercise those convictions by denying permission or refusing commissions. Miro wasn’t asked, was he?

And what about the likely spectre of Google logos becoming memorialized as collectible prints in the future? If the heirs’ viewed the Google logo as an objectionable use of his work, they had every right to put an end to the use.

The public spectacle of this incident could have been avoided through an advance act of courtesy by Google.

William Patry said...

Of course, Miro's agent wouldn't even say if Google had given them the "courtesy" of asking first whether the answer would have been yes. It is certainly likely the answer would have been no.

I'm impressed that Josh has an Andy Warhol, but as I recall Warhol didn't give Campbell's soup, Marilyn Monroe's estate or anyone else the courtesy of asking them if he could reproduce their iamges; had he done so, Josh might not have his silkscreen at all.

One can endlessly debate whether law and good morals are co-extensive, but assuming as I do that there was no direct copying from Miro's works and that instead the image used was merely in the style of, where was the property right? Does Miro really have a copyright or a moral right in a style of drawing? Did Picasso have such a right in cubism or Seurat in pointillism? What if Google did such a logo in Seurat's style but without copying from a Seurat painting? I have no doubt there would be no infringement of anything.

Lacking any rights, it is simply too bad that an estate doesn't want a for-profit company to evoke the dead cash cow it is living off of. It is, as well, stretching things quite a lot to say that Google was engaging in a commercial use. No one came to the site because of the logo, no extra ad money was earned; and the next day it would have been down anyway.

Are those entitled to pay a whimsical tribute - which is all this was - non-profit entities or individuals artistes? Who gets to decide who the right folks are? If its Miro's estate, the answer is, apparently, no one. The same approach of discriminating against users because they are for-profit entities has been rejected in fair use cases and should be here: all that matters is the use made, not who the user is.

The Miro example and many others argue, in my opinion, for ending copyright at the author's death. For those who think that there is an incentive requirement for copyright, no possibility of incentive is possible for copyright vesting in estates and no likelihood of misuse of copyright is greater than with ownership by greedy, humorless estates and agents whose raison d'etre is trolling the web for innocuous uses to suppress or shake down.

Anonymous said...

Cynthia--
It's irrelevant whether you or I "agree" with the heirs’ decision.

I disagree completely. The decision of the estate, or even of the author if he were alive, is only relevant if we, as a society, choose to give them authority over the matter.

Personally, I would choose not to. They could of course still protest what Google did, but I'd be perfectly happy for those protests to be impotent, and for Google to be free to use their logo as a means of honoring various people and events from time to time.

I believe it is a moral rights violation.

And I believe moral rights don't exist. The entire argument in their favor is bogus, at best, and it's the sort of thing that I would really only expect from the fools that advocate non-utilitarian copyrights. Getting rid of them, and dispensing of any obligation to have them, would be a great step toward reining in copyright to reasonable levels.

Prof. Patry--
The Miro example and many others argue, in my opinion, for ending copyright at the author's death.

Well, that would be an improvement, certainly, but why stop there? Terms of years have the benefit of predictability, and as I think we all know here, copyrights don't function as an incentive when they're particularly long. Frankly, I think that increased formalities (registration, deposit, notice, and frequent renewal) stand the best chance of avoiding granting copyrights to any works save those where copyrights really are an incentive.

Gnuosphere said...

William says:

like myself, who have believed that the existence of protection is important and appropriate, and at a fair high level

I am curious to know what your response to this question would be -

Is it ethical to prevent human beings from sharing published scientific information or culture?

Your thoughts may help me gauge what you mean by "a fair high level."

More on that here.

William Patry said...

Gnuopshere:

Many answer would depend on a number of facors: what is the nature of the work, is it a work of fiction, music, or a motion picture, or is it a scientific work? What was the author's intent when it was published - to encourage wide distribution for learning as in scientific works? What was the purpose of the unauthorized distribution, to encourage people to comment and learn or to consume? By fairly high level I was referring to threshold protection and not necessarily to exemptions or limitations although the two are obviously related.

etbnc said...

I was not familiar with Miro's name or his style until I saw Google's birthday tribute. I clicked the logo to find out more, and I learned about Miro and his art. I do purchase an art print occasionally, and I may have put Miro on my list of things to consider when browsing an art shop--until I read about his estate's attitude. Now I am less inclined to support the Miro estate.

So, Google's birthday banner effectively increased my interest in Miro and created a favorable attitude about his art. Then his estate's reaction decreased my interest and created an adverse attitude.

Those seem like foreseeable outcomes.

I enjoy Google's playful banner variants. They have consistently increased my interest in their subjects. I learn from them.

It seems a bit strange and sad that the estate of a dead artist would object to me paying attention to him, learning about him, or considering support of his work.

From Google's perspective, it looks like "No good deed goes unpunished."

For Miro's estate I suggest, "Be careful what you wish for."

William Patry said...

In my long train ride in to work today I was discussing the dispute with a friedn who is ad ad guy and a published novelist. he said his teenagers frequnetly point out the logo changes and how much everyone gets a kick out of them, and occasionally learns too. I thought learning, however it is accomplished,is the principal goal of copyright, so which of the two parties better promoted the progress of science?

joshua wattles said...

Prof. Patry is wrong in concluding that I own the Warhol silkscreen I referred to in my earlier post. It is owned by and today remains the property of the company that I worked for. That was part of the point of that story which I cut too short. Warhol made the companies pay for his portraits of their logos and then in some cases also retained rights to sell prints to the public. Earlier in his career, he took logos for his art and never intended to pay the corporate owners anything. Situational ethics are hardly surprising in the artworld.

It is very surprising in these posts to see an either/or attitude towards the purpose of Google's use of Miro's work. Communication is multi-layered. In determining if a use of intellectual property should be protected or compensated the layers must be balanced. For example, as much as Google's logo game is a useful educative diversion for its users and their children, it is also an attractive feature of the commercial service that differentiates it well from Yahoo! or Microsoft or AOL search. That differentiation is as much of a planned commercial benefit to Google as a marketing tool as would be Google's use of an amusing artwork in a corporate advertisement running in the pages of Wired magazine (were Google ever to run such an ad).

I agree with Prof. Patry to the extent that if there were no copyrighted elements taken by Google of Miro's work then in the United States the law would be in Google's favor. I don't think that would be true in France.

William Patry said...

Joshua:

I am sorry to hear you don't own the silkscreen, and thanks for the more detailed info about Warhol's practices. I was on a panel awhile back sponsored by the Assn of the Bar of New York at which a Warhol Foundation representative spoke. They seem to have a fairly liberal approach toward other artists' use of his stuff.
Another recent phenomenon in the dead artist estate licensing world has been sneakers. I have a pair of Vans using Warhol's image as a variant of Van's skull design. I also have two pairs of Reebok's (kind of mretro bowling shoe) licensed by the Basquiat estate that use elements of his design (including a very cool sole with his devil motif), and just out a pair of Keith Haring hi-tops by Adidas using some of his drawings. Those are at least a creative use of the artist's works and in ways they would probably approve of. I guess it is unlikely I will see a Miro sneaker.

Gnuosphere said...

William says:

"Many answer would depend on a number of facors: what is the nature of the work, is it a work of fiction, music, or a motion picture, or is it a scientific work? What was the author's intent when it was published - to encourage wide distribution for learning as in scientific works? What was the purpose of the unauthorized distribution, to encourage people to comment and learn or to consume?"

Simply the fact that you are asking such questions implies that in some cases, you believe it is ethical for a copyright holder to stop others from sharing published copyrighted works. I don't understand what difference it would make if it was a novel, music or movie. And of course when I say "sharing" I mean noncommercial use. That is, the distributor's intention is simply to disseminate published information, not to make personal monetary gains.

William Patry said...

It should be clear that I favor an ad hoc approach. When one talks of across the board behavior, that's more like an exemption. In some cases, I think exemptions are appropriate and there are lots of them in the Copyright Act. There might be a case for others. I favor a personal use exemption, for example, along the European models, or Section 1008 of the AHRA without so many limitations tied to the definitions in that Act. But I don't think that one is not making money off of "sharing" copyrighted musical compositions works with 2 million of your best friends is appropriate, while sharing a scientific article with colleagues around the world may be.

Gnuosphere said...

William says:

"But I don't think that one is not making money off of "sharing" copyrighted musical compositions works with 2 million of your best friends is appropriate"

Why not?

William Patry said...

My point was that one person distributing copies of commercially released musical compositions to anyone who access his or her hard drive stands in a very different setting than one who distributes scientific literature to a a relatively small group of colleagues. The first results in a substitution for sales with no offsetting increase in knowledge, while the second will result in a minimal economic impact with the possibility of an increase on learning.

Anonymous said...

Dear Professor Patry,

Following the specific example you've just given:

Do you envision this is the scientist's manuscript or a digital or printed reprint of the published version that may (often) include rights-retained visual works from other authors, licensed under specific terms with the publisher?

Sincerely,
Cynthia Turner

Gnuosphere said...

William says:

"The first results in a substitution for sales"

Is that so? Would not the phrase "complement to" be more accurate and significantly different than "substitution for"? Or do you envision a world of sharing as a world where artists starve in the streets? A world where art will not flourish due to a lack of "incentive." As well, are "sales" the only form of income? Would not the free distribution of works perhaps lead to other forms of income?

The restriction of noncommericial distribution of culture is archaic and not in sync with the networked information economy. Given technological change, the latent oppression of All Rights Reserved is thrust into the spotlight. ARR is not a fair bargain.

It is the view that placing a song online for millions to access noncommericially is not "appropriate" that results in war - for such a view will not naturally mesh in a globally networked world. It is imperative that voices as important as yours see this point. There is room for copyright in a networked world but no room for an attempt to keep people from sharing published information - whether scientific or cultural. WE need your help professor Patry. Sharing a copy of published material with millions of people is entirely appropriate. Stopping one through law is not.

William Patry said...

Cynthia and Gnu:

Sorry for the delay in responding. On Cynthia's distinction between a manuscript or a digital reporint I would think that with a manuscript the most likely way it got posted was with the scientist's permission, amybe under a Creative Commons license and if so that license should be respected. If the posting was withourt permission, that is for me a very different matter and I would not want to see it sent around. Certainly I am continually embarrassed by what I have written; it is bad enough when I put it out because at lerast it is the best I can do at the time, but if I have not made the leap in releasing it, it is likely to be pretty bad and I should be permitted to dtermine when it is released. On Gnuosphere's point, I think we may have a philosophical difference: I argue for an ad hoc approach, and I believe he argues for the widest possible dissemination even over the author's objections. I appreciate the desire to whare information as widely as possible and support it, for example through this blog where I am quite happy to do it for free and have others copy it for free.

Gnuosphere said...

William says:

"On Gnuosphere's point, I think we may have a philosophical difference:"

Perhaps, yes.

"I argue for an ad hoc approach, and I believe he argues for the widest possible dissemination even over the author's objections."

I am not entirely against an ad hoc approach. There are many actions one may take after they have legally obtained a copy of a published copyrighted work. Producing derivative work, selling their own copies, or even putting their name on it - all of these actions I believe are best served through an ad hoc approach. The nature of the work, intent of the author and other circumstances would then determine what sort of restrictions are put in place.

But as for distribution, I do not believe it is ethical (nor sane) to stop someone from making copies of legally obtained, published copyrighted works and then sharing those copies with whomever she wishes. In reality, this was not much of an issue before the digitally networked age arrived. The oppression of such law (All Rights Reserved) basically remained latent. Now that technology has changed the landscape, we need to make a decision. An ad hoc approach in regard to distribution is a green light for laws like the DMCA and technologies like DRM backed by "Trusted Computing". An ad hoc approach in regard to distribution will severly punish the potential benefits a world society free to share can bring. It would be erroneous and hyperbolic to imagine a world where artists don't create because sharing is the rampant norm. I know you have not said this but this fallacious argument has been made by those fighting to keep the new from blasting open the old.

The question is - Why not allow the sharing of all published information?

My conscience nor my reason can come up with a valid answer to this question.