fair use

Dumb Starbucks in Los Feliz February 12, 2014

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A Dumb Starbucks opened in my neighborhood over the weekend.

The Guardian asked me to write an op-ed piece on it, so I did.

“Dumb Starbucks was the perfect crime, but Starbucks was smart to play dumb.”

Dumb Starbucks at 9:30 a.m. on Sunday, February 9, 2014. Photo: Lisa Borodkin

Dumb Starbucks at 9:30 a.m. on Sunday, February 9, 2014. Photo: (c) Lisa Borodkin

A casual poll of my Los Feliz friends yielded a generally positive range of reactions. The stunt was funny, and timely. I had just attended a Digital LA panel on the future of Silicon Beach and Hollywood. In a world where there is a demonstrated consumer demand to skip through televison commercials (see Fox Broad. Co. v. Dish Network L.L.C., 2014 U.S. App. LEXIS 1657, 2014 WL 260572 (9th Cir. Cal. Jan. 24, 2014), a/k/a the “Dish Hopper” case), what is the future of the television commercial? I hope this is it.

I did find a funny typo in LEXIS misspelling Illinois’ anti-dilution statute as “antidelusion.” If only states could eliminate delusions so easily.

The only thing diluted by Dumb Starbucks was the coffee.

Anyway, the whole thing was a lot of fun, and I look forward to more terrible advice from Nathan and doomed retail establishments next to my dry cleaner.

Nathan Fielder says he’s going to open a Dumb Starbucks in Brooklyn next week. Let’s just hope it’s in Williamsburg.

#What the HashTag? Legal TweetChat for Web Journalists March 26, 2010

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Cory Doctorow predicted that printed newspapers will become like opera, the province of “rich weirdos.” Despite this, journalism is alive and well in the new media era, and living in Cyberspace.

To help such online journalists, I participated in a Legal Issues Panel on Episode 7 of WJChat through TweetChat with some of the legal leaders in new media journalism. The panel was assembled by Robert Hernandez (@webjournalist), who teaches a course in Online Journalism at USC’s Annenberg School.

My fellow panelists were Kurt Opsahl of the Electronic Frontier Foundation (@EFF), David Ardia and Kimberly Isbell of Harvard’s Citizen Media Law Project (@CitMediaLaw) at the Berkman Center for Internet & Society, and Jack Lerner (@JackLerner) of USC’s Intellectual Property and Technology Law Clinic.

Here is the transcript of WJChat Episode 7. A more coherent digest of the panel discussion is here.

If the formatting looks wonky, that’s because it is. My Columbia Law Review editors would have had a minor heart attack back in the day where we debated such fine points as whether to end possessive plurals with an ” s’ ” or an ” s’s. ” (For grammar geeks, it was decided that official Columbia Law Review style that year was to use the full ” s’s ” because the then-Editor-in-Chief thought the ” s’s ” conveyed plural better than a “lonely single apostrophe hanging out by itself.”)

As a matter of pure Blue Book style, I agree. But I don’t get a credit for my Note on the Columbia Law Review website, since I signed my copyright away. You can read it if you can afford a Westlaw or Lexis subscription.

Perhaps one day we’ll follow @BlueBook on Twitter. Properly, it would be @AUniformSystemofCitation, but that’s over the character length. In today’s Twitterverse, we wouldn’t use an extra character on subtleties such as an extra “s” or whether two spaces follow a period. Life is short, right? Maybe it’s not pretty, but we’d claim attribution for what we write.

That’s a fair trade-off, I think.

But back to the show.

The panel discussed ethical, legal and practical problems of online news gathering and reporting. We focused on issues unique to web journalism – shield laws, web commenting, quotations, expectations of privacy, Creative Commons licenses, retractions, and DMCA agents. At times, there was a division between normative law and empirical law — that is, the split in what we believe doctrines such as the Fair Use defense in copyright may or should allow, and practical rules of thumb easy enough for your average Joe or Jill citizen journalist to stay out of trouble.

Here are some useful resources for online journalists that came out of the discussion:

EFF’s Legal Guide for Bloggers
The Online Media Legal Network
PACER.gov and RecaptheLaw for federal cases
(To this, I add FindaCase.com.)
flickr.com for Creative Commons-licensed photos
archive.org for web history
http://www.copyright.gov/onlinesp/agent.pdf to register a DMCA agent
EFF’s guide to Section 230 Protection
EFF’s Bloggers as Journalists

My final tip? Be true to yourself, be accurate, and check your sources.

“Hope” for the Best: Manny Garcia, Shepard Fairey and the Associated Press February 5, 2009

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Update 3/12/09: The Associated Press filed their answer and counterclaims against Shepard Fairey.

You can read the answer and counterclaims here.. It’s a great read. The answer and counterclaims include lots of embedded color pictures (something I’ve never seen in a pleading before).

The AP’s answer and counterclaims emphasize the artistic merit in news photography, the AP’s non-profit status, and the importance of having a financially independent press.

Is it persuasive? You be the judge.

Update 2/9/09: Shepard Fairey has sued the Associated Press in New York for a declaratory judgment that his poster is fair use. No word on whether Manny Garcia will be joined.

Here’s my post on LAist about the Associated Press’s claims that Shepard Fairey infringed its copyright in AP photgrapher Manny Garcia’s 2006 photograph of President Barack Obama. No lawsuit has been filed, but the controversy illustrates the huge divergence in what people believe to be “fair use” under copyright, and what they think it should be. It’s a dynamite case on so many levels, given the timing, the economic climate, the copyright reform movement and the promise of accountability in the new administration.

There’s a terrific collection of links, discussion and summary of copyright standards and precedents courtesy of Carolyn E. Wright, aka PhotoAttorney.

So who’s right? It’s a great case for setting the law straight on the non-economic rights of copyright holders but a lousy case for damages. Fairey openly admits he copied the Garcia photo but it is also widely reported that Fairey hasn’t directly profited economically from the poster. The AP hasn’t tried to enjoin the “Hope” image and it also hasn’t revealed whether the compensation it reportedly seeks is monetary or non-monetary.

I wonder if proponents or strong copyright will figure out that they stand to gain tremendously if the AP takes this once-in-a-lifetime opportunity to set precedent for the non-economic value of copyright. Shepard Fairy admits he copied the image. When is that ever going to happen again (or with such a high-profile work)? The AP doesn’t need Shepard Fairey’s money. They do, however, need to protect their copyrights. If the AP’s lawyers take the long view, they will restrict their quest for compensation to joint copyright in the image, forcing a ruling on attribution and derivative works only.

At the very least, I “hope” everyone knows who Manny Garcia is by now. His photo really is terrific.

IP Protection for Blog Posts August 21, 2008

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Steve Kwok in China recently asked:

What is the most comprehensive law regarding IP protection for blog posts?

The short answer: the blogger retains copyright but the owner of the blog publishing system may reserve the right to sell the content back to the blogger.

Terms of Service increasingly try to carve out property rights for the owners of sites offering free publishing tools on the Internet. Fair enough, given the theory that a Terms of Service agreement is a contract between the user and the hosting site.

To take it a step further, does ownership of copyright in blog posts create property rights vis-a-vis third parties? The plaintiff in Lenz v. Universal Music Publishing Group, the “dancing baby” Youtube case thinks so.

Most of the commentary on the Lenz case focuses on whether posting the video, which embodied portions of the Prince song, “Let’s Go Crazy,” was fair use under the copyright laws. Fair use is always hotly contested, and always will be, due to the number of factors involved.

However, this case also raises the question of whether posting video to Youtube is a privilege or a right. In the first version of the complaint, Lenz claimed it is a right under her contract with Youtube. Presumably the contract arises from a user’s agreement to abide by Terms of Service. Based on that, Lenz sought damages against Universal for interfering with that right.

“Because Universal’s notice was intimidating, Ms. Lenz is now fearful that someone might construe some portion of a new home video to infringe a copyright. As a result, she has not posted a
single video on YouTube since she received the takedown notice.”

It’s a bold claim. How extensive are these rights, and how would they be quantified?

In the Second Amended Complaint, Lenz dropped the tortious interference claim. However, as user-generated content becomes an increasingly important component of new media business models, it’s worth considering whether others will test similar claims.