What Would Gandalf Do?

Oh, oh. I hate seeing a dispute where the guys who I would like to be the Good Guys are on the Wrong Side, but that may be the case here. The estate of JRR Tolkien, managed by his son Christopher (an indefatigable editor of his father's works), is suing an author for inserting Tolkien as a character into his novel. It may turn out that I know a lot less about copyright than I think I do -- in fact, I can just about guarantee that, which is a sort of paradox, although not the sort that will cause the universe to vanish into a black hole, or even keep me up at night, or --

Excuse me. Anyway, I may discover I'm wrong, but at least under American copyright law, I can't see what possible claim C. Tolkien could make to stop this novel. You can't copyright a fact and it would certainly blow my socks off to learn that JRR Tolkien was, in fact, a fictional character. (It would blow off a lot of socks, perhaps more than all the socks that have ever been lost since the invention of the clothes dryer.) Nor could you make a claim for defamation or invasion of privacy, since Tolkien is dead and you don't get to take those legal considerations with you when you go. And it seems the author is not using any of Tolkien's invented characters. So what use of copyrighted material is there? I don't know; it almost sounds like the estate's lawyers are confused about the difference between copyright and trademark, although lawyers ought to know that sort of thing.

So I'll have to add this to my Google News alerts and see how it turns out. Either Christopher Tolkien is making an ass of himself, or I'm going to learn something I didn't know.

Copyrighting T-Rex?

Here's an interesting case I started to write about, and then forgot to finish. But I'm still going to keep an eye on it. The Black Hills Institute of Geological Research is a private company in South Dakota that specializes in selling prepared fossils and casts. They claim that they loaned some Tyrannosaur bone casts to a Montana company called Fort Peck Paleontology, who never returned them and has been selling their own copies of these casts. BHIGR is suing.

Now I don't know what the terms of the loan were, and since BHIGR is a professional and commercial operation, you'd think they would write these restrictions into any contract they made. If they didn't, that's their mistake. But what intrigues me is that the lawsuit is claiming copyright infringement, not breach of contract. They are claiming they own a copyright on these bone casts.

As a general rule, you can't copyright a fact. The landmark case here is Feist v. Rural (1991), where the US Supreme Court held that a company could not claim copyright of its list of names and phone numbers. The particular medium, method of presentation, any commentary or editing - those can all be copyrighted as creative work. But the bare facts - the list of numbers - could not.

So can BHIGR claim that their bone casts are original, creative works? The president of the company, David Larson, claims that making dinosaur bone casts requires "a blend of scientific and artistic creativity," but otherwise emphasizes the amount of time and effort that they require. That smacks of the "sweat of the brow doctrine," which claims that amount of sheer labor that went into a production justifies the creator's monopoly over the product. That's an attractive, seemingly even a common sense, doctrine, especially to producers. But since Feist v. Rural, it's not the law in the US.

The pitfall for BHIGR is that the creativity lies mainly in their methods, not in the finished product. In fact, it's hard to imagine that they could be successful selling products they claimed were artistic representations of a dinosaur bone, rather than faithful and exacting reproductions of the original. Their website emphasizes, on the one hand, that "Perhaps the most important factors required in making fine molds and cast replicas are ingenuity and creativity." On the other hand, they also boast that they "have successfully developed new methods and materials for molding fossil specimens and producing cast replicas that retain the look and feel of the original fossils." That makes it sound like the value of the casts is not in their artistry, but in their adherence to fact.

I might be looking at this wrong. Perhaps the best example is a photograph of a building: you can still copyright the photograph, even though it's a representation of an uncopyrightable fact. If so, I look forward to the ruling setting me straight.

[Post script] It occurs to me that another comparison that might work in BHIGR's favor would be translations of old texts, which are original works for copyright purposes. Thus the New International Version translation of the Bible is under full copyright, despite the great age of the Bible itself. The 400-year-old King James Version, of course, is in the public domain.]

Don't do this

Irony. I loves it.

A Taiwanese man who won a poster design competition to promote copyright protection has been stripped of his prize after he was exposed as a copycat, officials said Thursday.

Kookaburra loot downsized

New developments in the Men at Work case, where the poor Aussies were being plundered of their earnings by a bunch of lawyers whose only creative act was to purchase an old copyright. The pirates, AKA Larrikin Music, were demanding 50% of their revenue of "Down Under" for a 4-second reference to a children's song. They won; EMI Records appealed; the appellate judge has ruled.

The result: yes, it's infringement, but Larrikin can only get 5%, apparently the lowest rate the judge can set. The judge found the claim for 50% to be "overreaching, excessive and in my view unrealistic".

I'm seeing the verdict spun in different ways - victory for Larrikin, because they still get money, or victory for EMI and Men at Work because they don't have to pay as much. I lean toward the former view, as I said previously: this is piracy, "Old School, let's sail around and find someone productive to plunder piracy." They likely didn't expect to get the 50% they asked for, but loot is still loot.

To cement the image of Larrikin as sanctimonious assholes, their lawyer actually said, "It's just really a pity that Marion Sinclair, the lady who wrote it, didn't participate in income from the song when the song was at its height in the early 80s," even though Larrikin only bought the copyright after Sinclair's death and probably has no intention of sharing their booty with her estate.

It may not be over: EMI is planning to appeal this ruling as well.

Can you own your creative process?

This is cute: Paramount Pictures is now claiming the copyright to video they didn't produce. A guy came across the shooting of Transformers 3 and used his iPhone to record a few minutes of the action. When he posted it to YouTube, Paramaount issued a takedown notice, claiming violation of copyright. Here are a few seconds of the video:



My question, were I a lawyer, would be: "Exactly what is Paramount claiming to have copyrighted?" It can't be the video, because they didn't create it. It can't be the Transformers 3 movie, because Mr. Brown hasn't reproduced any of their film. It can't be the story, because (even granting the dubious premise that Transformers 3 will have a plot) this video hardly reveals the story (we do learn that an automobile will be tossed in the air - in other spoilers, Bruce Willis will fire a gun during Die Hard 37).

If you are creating a copyrightable work, can you really claim copyright over every activity related to its production? If someone were to post a detailed, written description of what he'd seen from his window, would Paramount be able to claim a copyright over that description? That seems far-fetched, as it's obviously fair use commentary or reporting. It seems like the same sort of situation, when you produce a video description of the creative act - which is not a reproduction of the artistic work itself. If you don't want anyone to learn anything ahead of time, you might try to film on a closed location. But this copyright claim looks rather dubious and I'm glad the creator is resisting the takedown notice.

Pirates!

I've been catching up on a truly horrendous copyright judgment out of Australia a couple weeks ago: Colin Hay, Ron Strykert, and EMI records were found guilty of plagiarism for borrowing a couple of bars from a children's song in Men at Work's iconic "Down Under."

Here is the song in question, "Kookaburra."

If you can already place that in "Down Under," then congratulations, go to the head of the class, you are a world class expert on 1980's popular music. For the rest of us, listen to Men at Work and try to spot the borrowing: "Down Under"

Did you catch it? It's in the flute riff at 0:53. Eleven entire notes, not even part of the song's melody. For that, the Larrikin Music Publishing firm claims they're entitled to $33,000,000, despite having had nothing to do with writing or publishing those notes in the first place. Marion Sinclair, the woman who wrote "Kookaburra" for the Girl Guides in 1935, never even bothered filing on the copyright until decades later. After she died in 1990, Larrikin acquired the copyright and started looking for people they could enforce it upon:.

The company has hit the jackpot since buying the rights to Kookaburra in 1990 for just $6100. Mr Lurie estimates Larrikin has netted "hundreds of thousands’’ of dollars from licensing agreements with publishers and authors around the world, who had always considered it to be in the public domain.

"It’s earnt a hell of a lot of money for us since we’ve bought it," Mr Lurie said.

Lurie also says,

"Of course it would be disengenuous for me to say that there wasn’t a financial aspect involved, (but) you could just as easily say what has won out today is the importance of checking before using other people’s copyrights."

Did you hear that last line in the faux-innocent voice of Eric Cartman? I did. Publishers like to talk about piracy, but this is piracy! Not that petty shoplifting stuff that the RIAA likes to complain about - I'm talking Old School, let's sail around and find someone productive to plunder piracy.

Now, Larriken are music publishers, not musicians, but I'll bet they know the difference between musical borrowing and musical referencing, and that this incident is clearly the latter, placed in the accompaniment not because they couldn't think up their own tune, but because of the Australian flavor it would evoke. Never mind; they found a judge who doesn't understand that and they can laugh like Kookaburra all the way to the bank.

Copyright is supposed to encourage creative production by ensuring that the creator profits from his creation. Fair enough. But this copyright trolling - a close cousin to patent trolling - does the opposite. Of the three parties involved - Hay & Strykert, Sinclair, and Larriken - clearly the most creative are being pillaged by the least creative.


[PS. Forgot to mention that the parties are supposed to appear before the judge again this week after negotiating damages. I'll have the update as soon as I see it.]

[Update: The decision is now under appeal.]
[Update 2011: The appeal has been lost]

Yeah. This ain't gonna work.

Lawmaker convicted of rape claims name copyright

A former South Dakota lawmaker serving a prison sentence for raping two foster daughters has sent a copyright notice to news organizations that seeks to prevent the use of his name without his consent.

Sorry, you can't copyright your name, no matter how badly you want it out of the news. For one thing, you can only claim copyright for an intellectual product that you have authored, so your name doesn't qualify. You also can't copyright factual information - such as your name.

I'm not sure, but I think you have an automatic trademark in your name, which allows you to retain the right to be accurately and uniquely identified. In Mr. Klaudt's case, of course, that's exactly the problem ....

Back in July I wrote about a case where ASCAP is suing Verizon, claiming that musical ringtones on cellphones are a "public performance" and Verizon should pay performance fees; this depite - no, in addition to - the fact that Verizon already pays fees to ASCAP for selling these ringtones.

On Wednesday the judge ruled in the case and, wise public servant that she is, entirely agreed with me. Although the words were measured, the upshot was that ASCAP's case was ridiculous and was a misreading of both law and fact in virtually every aspect. A ringing phone is not a "public performance" by either the customer or the provider, signalling the phone to ring is not the same thing as playing a recording, and no amount of wishful thinking allows ASCAP's lawyers to redefine legal standards and the physics of wireless communications to their convenience. They still get paid for ringtone sales, but they don't get to doublecharge by pretending Verizon is both a music store and a radio station.

More trouble for the Google Books settlement

French publishers have brought suit in Paris to stop the Google settlement, because the newly-digitized collection certainly contains many French works without their publishers' permission. The rhetoric is a wee bit hyperbolic: the president of the publishers group Syndicat National de l’Edition refers to the settlement as a "cultural rape," from which you would think scanning books is comparable to, oh, Napoleon filling the Louvre with the pillaged treasures of Europe or something. Ridiculous.

I had to search several articles before I could discover that Google is scanning books from a French library, which is the only avenue I can see for thinking French courts would have any jurisdiction at all; my (shallow) understanding of the Berne Convention is that French books in America fall under American law (the main point of the convention is that they do get the protection of the other country's laws and are not fair game for plagiarism and republishing). So I dunno - it might be a stretch to have Paris courts weighing in on the settlement. But in any event, the challenges are mounting and we may be much farther from that wonderful electronic library than we need to be.

Copyright Office weighs in on Google settlement - not good

The Register of Copyrights, Marybeth Peters, testified before the House Judiciary Committee yesterday and she is quite skeptical about the legality of Google's plan to scan books and create a registry of authors for future compensation. The crux of her concern:

Ms. Peters said that in granting something like a “compulsory license,” a requirement that rights owners license works to others, the settlement essentially usurped the authority of Congress and skirted deliberations.

“In essence, the proposed settlement would give Google a license to infringe first and ask questions later, under the imprimatur of the court,” Ms. Peters wrote in her prepared testimony.

This has always been the biggest legal sticking point in Google's digitization scheme - do they need to negotiate approval first (the opt-in position), or can they go ahead with their scanning and then later restrict books whose rights-holders step up and ask them to stop (the opt-out position). Getting prior permission for millions of books is impractical, to say the least, so Google has always preferred opt-out: we'll scan it, but let us know if you don't want us making it available.*

Peters is arguing that, practicality be damned, the law just doesn't allow it. Like it or not, you need permission first.** The Google registry essentially creates a compulsory license system, much like how songwriters get paid but can't make a radio station stop playing their songs. The latter system, of course, came about by an act of Congress and there's the rub - Google isn't Congress, even if they do have a stronger bank account.

You can read my contemptuous views on the so-called Google "monopoly" here, but the registry is a more serious matter. Even if it's a good solution - and I believe, for the most part, it is - it might not be legal without federal legislation. Unfortunately, so long as it appears only one company is in a position to benefit, that won't happen. Amazon may be building a digital library under an opt-in system, but that leaves an enormous amount of literature - the orphan works - untouchable.

So it's entirely possible that, while there's no illegal monopoly here, the fear of one will prevent an allowable solution - Congress stepping in and creating a compulsory licensing scheme. It will be a tragedy if we lose a chance to make all these books accessible because only one company was bold enough to take on the task***, but that could well be the result. Is it really better to have no grand digital library than to let Google be the spearhead?


___________________
* Where major publishers are aware of what's going on, though, they don't hesitate to opt-out before the scanning takes place. At the UM libraries, the stacks are festooned with pink slips that read "Not scanned at publisher request."

**Unless, like Bobby Bowfinger, you're lucky enough to catch those publisher in some kind of embarrassing situation....

***Ayn Rand fan should be hearing, "Why should only Henry Rearden be allowed to make Rearden Metal?" Seriously, I've seen suggestions that Google should be forced to give away all the digital files they've made at enormous cost.

The future of innovation

IP and technology - the neverending story

So you may have seen these news items about the latest move from the American Society of Composers, Authors, and Publishers (ASCAP). Those pop-song ringtones you buy for you cellphone, so that you sound all funky to the world and id your ex-girlfriend's call before you answer? Those are public performances and your phone provider should be charged accordingly!

This has led to a fair amount of outrage and – as seems typical of ASCAP legal ploys (see footnote below) – almost seems designed to elicit giggles. A phone ring is a public musical performance? How about your neighbor's stereo? What if I roll down the windows of my car and someone hears my stereo? How about little girls singing at girl scout camp?* Are all of these public performances?

Everyone seems to be talking about this potential threat to the owners of the phone, but as I read the documents, that's exactly the line of thinking that ASCAP is hoping to avoid. That's because casual, non-commercial performance of a song or recitation of a text are pretty clearly exempted by section 110(4) of the Copyright Code. If I perform a song for money, or play a recording because it draws more people to my business, then I owe ASCAP money. If I'm just playing my stereo or singing a song, and other people happen to hear it, then I don't. ASCAP doesn't want anything to do with section 110.

Here's what happened: ASCAP was charging performing rights fees to cell phone service provicers. But they were also getting a cut of the sales revenue from the ringtone purchase. When the court ruled, a couple years ago, that a downloaded music file should be treated as a record sale, while a streamed audio file counted as a broadcast performance, Verizon and AT&T decided the money off the sales was all they owed, and they quit paying for performing rights.

ASCAP doesn't like this and they're suing. But here's what they have to do to win their case: they have to first convince the court that a downloaded file triggered by a remote signal is really a form of streaming audio, and then they have to establish that the responsibility for the playing of music lies with the folks who notify you of a call, rather than the person who buys the music and sets it to play when his phone rings.

To argue the first part, ASCAP is grasping onto language in the definition which includes the words “designed for” or “capable of” contemporaneous playback. “Hey! It's exactly the same type of digital file, no matter how you deliver it! It could be played contemporaneously when it's downloaded, so this can treated as streaming audio! Triggering a downloaded file is just a tricky techno-dodge to get around their obligations.**”

If they pull that off, then they still have to establish that the ringing phone constitutes a public performance, and that it is a public performance by the phone company. That's critical, because 110(4) is ASCAP's third rail: if their case touches on it, they're probably fried. So they're trying hard to redefine the core issue. It's not about you playing your phone's ringtone; it's about AT&T or Verizon playing your ringtone for you.

ASCAP argues that, because the phone company can cancel your contract, has elected to sell you the ringtone, owns the network, and sends the signal to your phone, they are controlling the performance. Never mind that Verizon only sends the signal to my phone and I'm the one who decides what, if any, ringtone plays to announce it. ASCAP claims Verizon is playing music for me and they have "complete control" over the performance.

Just to cover all the bases, and make sure bloggers get a good laugh at their expense, ASCAP points out that an airwaves broadcast is always considered a performance, whether or not you can prove anyone had their radio or television turned on. So ditto with phones, right? They say the ringing is “public, regardless of whether some customers' phones may be sometimes switched to vibrate, turned off or located in the home. For a ring tone performance ... to be a public performance, it need not be received by the public every time." By this reasoning, it appears to be a performance, even if I had set the phone to vibrate, dropped it in the woods a week ago, and the battery has run dead. It might even still be a performance if I had dropped the phone into a volcano and neither it nor the digital file even exists any more.

If they were arguing this case before my court, they'd have a pretty slim chance of success. But judges are known to hang a decision on some very technical, literal, and counterintuitive reading of a text. We'll see how this one plays out.

My favorite part is this line from ASCAP's response to AT&T's motion for summary judgement:

“It is difficult to imagine how AT&T could more actively induce the unlicensed performance of ASCAP work than it already does.”

Oh, come on, ASCAP. I know your lawyers have more imagination than that!


________________
* This example isn't chosen at random. Some dozen years ago, ASCAP leaped into a huge pile of PR manure by threatening girl scout camps to either pay up or shut up. I find it ironic that such tone-deaf people are entrusted with protecting the interests of musicians.

** In fact, downloading is the only efficient way to deliver ringtones without wasting bandwidth with every call.

Is the internet a right, pt. II? In France - yes

A couple months ago I mentioned the efforts in France to pass laws that would allow illegal file sharers to be barred from internet service. At that time, the law had been defeated, but was since brought up again and passed.

Now it's been struck down again by the French Constitutional Council. You can read their decision here, if your French is any good. Mine isn't, but the accounts are saying that the Council ignored the practical considerations - do you punish a whole household for one person's misdeeds? wouldn't you just end up nabbing the less savvy and less harmful thieves? - and went straight for the big issue.* Invoking the 1789 Declaration of the Rights of Man, which are enforceable under the French constitution, the Council wrote:

But the Council found the law violated both the constitutional right to freedom of expression and the right to presumption of innocence.

“It follows,” wrote the Court, “that in principle the legislature does not establish a presumption of guilt in criminal matters”. The Court also said exercising freedom of expression and communication, including that performed over the internet, is a prerequisite for democracy.

“Attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued,” it said.

In particular, the Council strongly disapproved that a legal punishment would be determined by a political agency rather than a court of law.

______________________
* In marked contrast with US Supreme Court tendencies, which Ed Brayton critiques here.

Cornell releases public domain works

Cornell University Library Removes All Restrictions on Use of Public Domain Reproductions

In a dramatic change of practice, Cornell University Library has announced it will no longer require its users to seek permission to publish public domain items duplicated from its collections. Instead, users may now use reproductions of public domain works made for them by the Library or available via Web sites, without seeking any further permission.

* snip*

"The threat of legal action, however," noted Anne R. Kenney, Carl A. Kroch University Librarian, "does little to stop bad actors while at the same time limits the good uses that can be made of digital surrogates. We decided it was more important to encourage the use of the public domain materials in our holdings than to impose roadblocks."

This is a nice development. Most libraries have required permission before others can publish digitized versions of public domain works and, while this has often been cited as an example of copyfraud, I think it's probably legal. The library is trying to control their own copy, not the work itself. But as Kenney observes, what's the point? If libraries are going to present themselves as champions of disseminating information, they should quit trying to control it. So sure, some naughty yahoo will take Cornell's digitized document and include it in some commercial product of his own, but isn't it better just to blow that off and let everyone enjoy the benefits of widespread creativity and research?

Good call.


[Thanks to Digitization101 and the Archives Listserv.]

Is internet access a right?

Eric Pfanner at the New York Times asks, "Should Online Scofflaws Be Denied Web Access?" You see, some folks* believe that people who pirate copyrighted media should be denied their own internet connections.** A bill to do just that was defeated in France last week and European consumers are reported as being strongly against any such thing. In fact, according to Pfanner,

Last month, in a pre-emptive strike, the European Parliament adopted a nonbinding resolution calling Internet access a fundamental freedom that could not be restricted except by a court of law.

At first blush, that sounds a little far-fetched, calling internet access a fundamental freedom. What's next, a fundamental right to quarter-pound hamburgers? Plus a constitutional right to fries?

At second blush, though, maybe not entirely far-fetched. The internet has now become the most basic informational, organizational, and administrative infrastructure we have. It's how I get the news, it's how I write to people, it's how I access my bank account and pay many of my bills, it's how I do much of my work at home, and it's almost the only way to hunt for a job nowadays (and often the only way they want you to apply for one). Would losing all that be proportional to the crime of sharing music files?

How often do we punish a person by depriving them of access to fundamental infrastucture? I mean, aside from actually tossing them into the pokey? The nearest equivalent I can think of is taking away their driver's license. But here's an illustrative point about traffic laws: we make this big distinction between moving and non-moving violations. You can have your car impounded for not paying parking tickets, but they don't permanently confiscate the car or prevent you from driving someone else's because of it.

You're still allowed to drive after offenses like that. We only take away your license when you're just too damned dangerous to be allowed on the road.*** It's the crimes that are likely to lead to mayhem and death that justify barring a person from the road. Not property crimes; just threats to life and limb. And internet piracy doesn't offer any equivalent to drunk drivers or street racers. Property crimes don't justify cutting someone off from the virtual world, because that's where everyone is doing real business nowadays.


____________
* Often spelled R-I-A-A.

** Presumably, they could still go online at a library or coffee shop, but not have their own ISP. This gets trickey, because many household connections are shared by several family members and some wireless connections are shared by multiple households. Then there's the possiblity of someone hacking into your wireless account, and ... it's just not as easy as saying "Here's the ISP, so we have the guilty party."

*** And often not even then. It's so crippling to be barred from the road in our culture that we're reluctant to impose that penalty even on maniacs.

Publishers make another play to lock up research

Back in September, I had this to say about the “Fair Copyright in Research Works Act:”

"Imagine that a movie studio just spent $100,000,000 on a terrific new movie, but if they want anyone to see it, they have to give it to a movie theater. Not just the film itself, but all rights to the movie forever and ever. And the theater owner says this is perfectly fair, because the studio doesn't pay for the screening or provide any popcorn."

Like Jason, Freddy, and all those other slasher movie staples, it's back, as H.R.6845 and introduced by Michigan's own John Conyers (D, 14th district). Once again, the the idea is to outlaw the NIH Open Access Policy, which requires taxpayer-funded research to be deposited with PubMed Central, but only after 12 months.

That embargo is, for a front line researcher, a lengthy time. A research library cannot afford to wait a year and avoid paying the subscription prices for journals; they have to buy access to that research ASAP. But that's not good enough for the publishers because, y'know, it's just so cool for business when you can own other people's work without ever paying them a penny.

That Obama image

I'm starting to get intrigued by the case of Shepard Fairey, the artist who created the now-famous "Hope" image of Barack Obama and is now being sued by the AP because he copied Obama's image from one of their photographs.

Fairey doesn't deny that he used this photograph:





as the basis for this poster:









What he argues is that this falls under Fair Use and I expect he has a pretty good chance to win his case. Here are the "four factors" that a judge must way in determining whether Fair Use applies:

1) the purpose and character of theuse
2) the nature of the copyrighted work
3) the amount and substantiality of the portion taken, and
4) the effect of the use upon the potential market.

Under (1), I think Fairey is on strong ground in claiming that he has significantly transformed the original, enough to make it a new creation, with a new meaning that the original did not have. It might not be the most technically impressive transformation - actually, it looks pretty easy and (see below) that would be perfectly in character for Fairey - but it's still a different work than the photograph.

(2) Fairey is emphasizing his view that the photograph is a strictly factual piece of work, not a creative one. Now there's a fine way to insult the entire field of photography and that certainly won't win him any friends. The classic case involved a ruling that phone books could not be copyrighted, as they consisted of purely factual data, but it would be nuts to rule that all photojournalism is no more creative than a phone book. Fairey's on shaky ground with this one.

(3) Fairey has not reproduced the entire photograph, but merely the portion that interested him. I doubt this factor will weight very heavily either way.

(4) You could try to argue that Fairey's work damages the market for the original photograph, but I'm afraid the "giggle test" would trip you up here. The photo had already been filed away under "stock" and no one was asking for it specifically until Fairey made it famous (not - see below - that he intended to).

All in all, I predict that (if the case goes to court) Fairey would win on point 1 and 4, with 2 not being consequential enough to outweigh the other factors. Which would be a nice defense of Fair Use, a principle that is under relentless attack these days.

Unfortunately, it could certainly have happened to a nicer guy. I came across a reference to this attack on Fairey, by artist Mark Vallen, who makes a convincing case that Shepard Fairey is a serial plagiarist who routinely copies other's work, not because he has something to say about that work, but simply because he is "too lazy to come up with an original artwork." He provides over a dozen instances where Fairey obviously copied a work, slapped his own slogan on it, and then passed it off as an original work. In this example:



Fairey's work is in the center and the unacknowledged originals are on either side. That's not transformation; that's just plagiarism. After all, how lazy do you have to be to copy a drawing of an Old Faithful eruption, when you need a picture of exploding bombs:



Not that a WPA poster is likely under copyright - government work, by law, is not. Some of the other work that he's stolen is protected, though, and Fairey's had to withdraw some of his t-shirts when rights-holders objected. Lucky for him, AP's case is not so strong and his Obama poster will likely pass muster as an original work. It might be a first.

University of California Libraries, Springer Strike Open Access Deal

Under the agreement, UC-affiliated authors accepted for publication in a Springer journal will be published using Springer’s Open Choice program, offering “full and immediate open access,” with per-article charges factored into the cost of the overall license. The cost of the license was not released, however, the standard Open Choice author fee is $3000. In addition, “final published articles” will also be deposited in CDL’s eScholarship Repository.

Not mentioned in the article is that Springer's Open Choice allows authors to retain copyright to their article, but requiring them to agree to a Creative Commons Attribution-Noncommercial License. Under traditional publishing, the author signs away all of his rights over to his publisher, most of which are charging ever-growing fortunes for subscriptions to that work. Libraries, as you might guess, are very intrigued by the prospects of open access publishing.

Copyright and citizen journalism

Via Stinky Journalism and the Archives Listserv,

MSNBC Misattributes Photo: Wrongly Claimed Twitter User's Photo as its Own



The photo was originally posted on Twitter and apparently many media outlets did a good job of contacting the photographer to request permission before republishing it. MSNBC (through carelessness rather than policy, let us hope) got caught tagging it as their own.

Copyright bites

This amuses me: John McCain was for the Digital Millennium Copyright Act before he was against it.

Oops, did I vote for that?