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Come on Get Happy! Publicity Rights in the Online Context
July 26, 2012 by Rick Sanders | Category: Blawg, Blog | Tags: fair use, free speech, photography, right of publicity
But it’s Sad, Sad News for Momma Partridge
Even when I was a little kid, I didn’t like the Partridge Family. It came on late in the afternoon (in syndication, of course), after some Looney Tunes-type cartoons. It always seemed to start promisingly, with a little cartoon—featuring cute partridges hatching—and catchy song* for the opening credits. Then it went immediately downhill after that, mostly because it wasn’t a cartoon. Also, I was envious that the littlest kids got to live such a cool life that didn’t involve going to school. And I positively hated Danny.** Honestly, I preferred the Brady Bunch, if I had to endure a live-action sit-com, which is settling a low, low bar.
* Whoa, I just listened to the song again. I should rephrase that. It was catchy for a six-year-old kid in 1974, I guess.
** Yeah, I get that Susan Dey was pretty. But c’mon I was six. Also, at that point in her acting career (she was previously a model), she really couldn’t act.
I bring this all up because the actress who played Momma Partridge, Shirley Jones, recently lost an appeal on a claim that her likeness was … Read More»
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Music Industry v. ReDigi: The Problem with Phonorecords: Copyright
When Is a Phonorecord Not a Phonorecord?
Last time, we finally figured out how ReDigi operates and how it plans to get around the fact that it must make at least one (and often two) intermediate copies of a song file in order to complete the sale of the song file. ReDigi’s solution is to structure itself as an Amazon-style music locker and rely on space/format shifting for those intermediate copies.
But this doesn’t get around the other concern I raised (way back here), which we might call the “phonorecord problem.” Recall that the nub of the RIAA’s argument is that the First-Sale Doctrine is limited the distribution right. The RIAA’s point was that the intermediate copies exercised the reproduction right and, therefore, fell outside the scope of the First-Sale Doctrine. While I thought there might be a different way of looking at that issue, it turns out ReDigi is fine with the RIAA’s argument, since it thinks it has an alternate (and better) legal theory regarding those intermediate copies.
The “phonorecord problem” is more fundamental. Under a strict and plain reading of the Copyright Act, the distribution right is limited to the distribution of physical embodiments … Read More»
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Music Industry v. ReDigi: Cute or Clever?
Is ReDigi a Marketplace or a Music Locker?
I am compelled to blog about ReDigi one more time because, at long last, we actually know how ReDigi operates. And it’s not *quite* how ReDigi says it works on its FAQ. It’s actually far more clever and elegant–at least, legally speaking. This means, among other things, that parts of my previous posts about ReDigi are no longer completely accurate* (because they were based on the ReDigi FAQ and some other public statements by ReDigi). At a minimum, I need to clear that up. But also, ReDigi’s legal theory is worth an additional blog post.
*Among other things, the whole “Do Star Trek replicators infringe copyright” thing was unnecessary, as it turns out. As you’ll see, ReDigi does not destroy the original at the same time it creates the copy–a technological feat that would be remarkable but not impossible. Still, it’s an interesting thought experiment into the nature of the reproduction right, no?
ReDigi ReCap
To recap a bit about ReDigi: it provides an online marketplace for the re-sale of used audio files. It has one very important limitation: only songs you purchased online were eligible–thus, you can’t sell songs … Read More»
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More Artist-on-Artist Fair Use Action: An Iconic Scream, a Rap Icon
Can Green Day Exit Through the Gift Shop?
Are you ready for another installment of Is it Fair Use?, the fast-paced, action-packed game in which I give you a fact pattern, and you take a blind stab at whether the court found or didn’t find fair use. Today’s installment is brought to you by Green Day, and also by the Oscar-nominated documentary, Exit Through the Gift Shop.
Our story begins with the artist Los Angeles artist Derek Seltzer, who created a work of art, which he called, Scream Icon. I’d show it to you, but it’s impossible to find an image that isn’t part of a story that gives away the ending! It consists of a black-and-white portrait of a fanged man in a rictus of a huge, well, scream. AAAAAAARG! Sort of like that.
Seltzer put this image onto posters and stickers, and then posted those images on walls, telephone poles and what-not around town. It doesn’t appear from the opinion that Seltzer had much success selling copies of Scream Icon, though he did license it once to a rock band for use in a music video.
One day, another artist, Roger Staub, happened across … Read More»
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ReDigi: Can the First-Sale Doctrine Ever Apply to Digital Downloads? (Part 18 of our Online Music Series)
The RIAA Strikes Back
So it turns out that the RIAA isn’t cool with ReDigi. So much for the maybe-they’re-secretly-licensed theory. You can read the RIAA’s demand letter to ReDigi here. It raises an issue I hadn’t considered before, so wrapped up was I in applying Vernor and the first-sale doctrine. RIAA questions whether the first-sale doctrine even applies in the first instance. If the RIAA is right, then my previous analyses about ReDigi’s right to the first-sale doctrine are cut off at the knees.
Warning: this is an unusually long post (even for me), but there was no way to split it up without ending with a misleading conclusion. In light of the controversy that ReDigi (and by extension your blogger) has gotten into, I thought it best to keep this as one long post rather than split it up.
The RIAA’s Legal Position
The RIAA’s logic goes like this. When you sell a music file over the internet, you aren’t selling the copy that’s actually resident on your computer (or wherever). You’re selling a copy that ReDigi made of your song. According to the RIAA, the first-sale doctrine applies only to the exact copy of a … Read More»
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ReDigi: Is the Necessary Step a Fair Use? (Part 17 of our Online Music Services Series)
When is Making Temporary, Intermediate Copies a Fair Use?
Last time, we discussed whether ReDigi could avail itself of the “essential step defense,” on the theory that making intermediate copies of the music files was necessary for ReDigi to carry out its (assumed*) right to re-sell the files under the first-sale doctrine. I concluded that the essential step defense probably doesn’t apply because, even if digital content qualified as a “computer program,” the defense is limited to “utilization” of computer programs “in conjunction with a machine,” and I thought utilization was probably limited to executing a program and couldn’t be stretched to cover re-selling the “program.”
* As we discussed here, this is by no means conclusive. We’re assuming the first-sale doctrine applies for purposes of this discussion.
So, there’s no specific right under the Copyright Act to make temporary, intermediate copies of a work as necessary to exercise some other right in connection with that work. But the idea is appealing. If you have the right to do X, a technicality of copyright law shouldn’t prevent you from doing so, right?
Copyright Legal Technicalities and Fair Use Revisited
This causes us to revisit two of the basic … Read More»
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Copyright: Is it Fair Use? Elf On! Elf Off!
Or, the Elf Done Gone.
Welcome to another edition of Is it Fair Use? the game in which I present the facts and you take a blind stab at whether the court found fair use.
Judges clearly live for parody cases. Remember how much fun the judge had in the “What What (in the Butt)” vs. South Park case? This judge has almost as much fun in a case pitting the wholesome The Elf on the Shelf (“Elf On”) against its alleged parody, The Elf off the Shelf (“Elf Off”). I’ll link to the opinion here, but don’t read if you’re playing Is it Fair Use? The judge gives it away in the first paragraph!
Here is how the judge sets the stage:
The motion now before the Court calls to mind the old adage, “You can’t judge a book by its cover.” This time-worn advice instructs us to give moreattention to the substance of a work than its shiny packaging. However, the Court’s ruling on the instant motion turns on whether in the madness of holiday shopping it is likely that the average consumer of Plaintiff’s book, possibly giddyfrom gingerbread lattes
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Copyright: Is it Fair Use? What What (in the Butt) vs. South Park
Welcome to Our Second Episode of “Is it Fair Use?”
This opinion by Judge J.D. Stadtmueller in Brownmark Films, LLC v. Comedy Partners is pretty close to priceless, dealing, as it does, with South Park’s send-up of the notorious “What What (in the Butt)” viral video sensation. Here’s how Judge Stadtmueller introduces the issues and the parties:
Federal lawsuits seldom touch on such riveting subjects and regard so many colorful parties as the present matter. The plaintiff, Brownmark Films, LLC (“Brownmark”), is the purported co-owner of a copyright in a music video entitled “What What (In the Butt)” (“WWITB”), a nearly four minute ditty regarding the derrière of the singer of the underlying work. The music video begins with an array of bizarre imagery – from a burning cross to a floating pink zeppelin – and only gets stranger from there. The heart of the video features an adult African American male ensconced in a bright red, half-buttoned, silk shirt, dancing, grinning creepily at the camera, and repeatedly singing the same cryptic phrases: “I said, what what, in the butt” and “you want to do it in my butt, in my butt.” Meanwhile, the defendants are the entities involved
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I Know Fair Use When I See It: A Copyright Complex
Welcome to the Game We’re Calling, “Is It Fair Use?”
I’m starting a new occasional series called, “Is it Fair Use?” where I set out the facts from an actual copyright or trademark decision involving fair use, and you get to guess how the court ruled.*
* This idea is completely ripped off from one of my absolute favorite law blogs, The TTABlog. It’s highly specialized and wonky, but it is up-do-date, erudite, witty and consistent.
For my inaugural “Is it Fair Use?” I’m going back to a fairly old case (March of this year) that has been in the news again because its interlocutory appeal has been approved by the Second Circuit (for obscure procedural reasons, this had been in doubt).* Some of you will recognize it immediately, even though I’ll suppress some of the more recognizable facts. Don’t spoil it for the others! Even so, it’s hard to resist starting with this case because everyone thought this was an easy, slam-dunk, open-and-shut fair-use case, but no one agreed on what the easy, slam-dunk, open-and-shut ruling should have been.
* This constitutes a perfectly good reason to dredge up an old decision. Really.
The defendant is an … Read More»
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Hart v. EA: Are Publicity Rights in the Game?
Free Speech Sacks Publicity Rights (but Was it Offside?)
A few weekends ago I blogged about publicity rights in connection with a Vampire Weekend album cover. One of my main points was that publicity rights are a lot like copyright, except that it’s a right held by the subject of a work, rather than by the work’s author. Thus, when a work has a living (or in some states, dead) person as its subject, there can be two rights to worry about: copyright and publicity. Publicity is the right to control representations of yourself; copyright is the right to control representations (OK, “expressions”) you make.
Team Publicity Rights vs. Team Free Speech
Publicity rights make intuitive sense. If you’re a celebrity, even a local or minor one, people shouldn’t be able to use your likeness to make a buck. That’s a market for you to control. To this, we add a kind privacy or dignity sheen that arises (in my opinion) from the general feeling of discomfort we get when our likeness is shown to people outside our normal circle of family and acquaintances. Intuitively, the scope of this privacy right changes depending on the intimacy of the portrayal: … Read More»
