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Copyright Law

Happy 225, US Copyright Law!

Posted by Rebecca Blake on June 02, 2015

The first US federal copyright law was enacted 225 years ago, and the Copyright Office and Copyright Alliance marked the anniversary. The law was signed by George Washington on May 31, 1790, and established the basic principals of copyright law. The Office sent out an email relating the history of the law, noting that it was called “An Act for the encouragement of learning” and protected maps, charts, and books to encourage exploration of the North American continent:

“The first federal copyright law established the principle that authors should have rights to control the use of their works, such as how they are printed, reprinted, published, and sold. It recognized that authors should have meaningful remedies to encourage others to respect these rights and to provide appropriate compensation when those rights are infringed. And it recognized the central role a registration system plays in documenting a public record of creativity, ownership, term, and other legal facts.”

The Copyright Alliance celebrated the anniversary by creating “Copyright is a Conversation,” an online publication that explores the impact of copyright in the key areas of art, expression, creativity, technology, commerce, and identity. Pages for each area include a list of relevant articles and embedded videos. For example, the “Copyright is a Conversation about Art” page includes links to articles such as Blake Morgan’s “Art and Music are Professions Worth Fighting For” and David Newhoff‘s “Copyright Critics Don’t Quite Get Artists,” as well as a touching video by multimedia artist Cat Kaverly discussing her creative response to her fight with cancer.


Copyright Alliance Copyright is a Conversation artwork

Copyright Office Publishes Fair Use Index

Posted by Rebecca Blake on April 30, 2015

Copyright Office logoIn response to widely recognized confusion regarding the doctrine of fair use, the Copyright Office has published the Fair Use Index. The index publishes cases searchable by jurisdiction and category, including type of work, such as Painting/Drawing/Graphic, etc., and use, such as Parody/Satire, News reporting, etc. Selecting search features pulls a grid of cases, with year, court, jurisdiction, category, and outcome listed. The case names link to a PDF with details of the case, including an outline of the background, and a breakdown of the highest court ruling on the case.

The index is a valuable resource for artists and academics hoping to get a better grasp of how the fair use doctrine has been applied.  For example, searching under Painting/Drawing/Graphic pulls up a wide range of cases covering all sorts of graphic use, such as Bouchat v. Balt Ravens (logo infringement), Cariou v. Prince (appropriation of photography – see the Guild’s amicus brief on this case), and Setzer v. Green Day (illustration infringement).

The index was developed support in of the 2013 Joint Strategic Plan on Intellectual Property Enforcement, the proposal released by Victoria Espinel, the White House’s former Intellectual Property Enforcement Coordinator. The Office intends to keep adding key rulings to the database.

Apple Sued by Artist for Trade Dress Infringement

Posted by Rebecca Blake on April 20, 2015

It’s a case that puts a twist on the familiar David vs Goliath, artist-suing-major-corporation-for-copyright-infringement story. As has been widely reported, Miami-based Brazilian pop artist Romero Britto is suing Apple, Inc. and the designers known as Craig & Karl for trade dress infringement and unfair competition. At issue is a brightly patterned piece of artwork created by Craig & Karl, and featured prominently on Apple’s “Start Something New” webpage, as well as in Apple stores. The “Start Something New” campaign features works created by well-known artists using Apple products; the offering by Craig & Karl is purported to have been made on an iPad Air 2 with iOS apps.

Romero’s lawsuit is unusual, in that he’s not making the common charge of copyright infringement. An excellent article by Steve Schlackman in Art Law Journal points out that the offending image does not appear to be derived from an existing Britto work. Instead, Britto is claiming infringement of trade dress, the distinctive visual appearance of a product or packaging (such as Britto’s use of brightly colored geometric patterns and heavy black outlines). According to Schlackman, to prevail Britto must establish both that his work is distinctive, and that consumers are likely to be confuse the Craig & Karl work with his.

According to the complaint filed by Britto, such confusion has already occurred; Britto’s business partners and collectors confused the Craig & Karl artwork with his. According to the Miami Herald, Britto’s own lawyer, Robert Zarco, first saw the artwork at an Apple store in China and assumed it was Britto’s. However, Britto appears to have a steep slope to climb in proving infringement; bright patterns and thick outlines have been utilized by numerous artists (Keith Haring and Walter De Morais come to mind). As Schlackman states, the true test of whether Britto’s work merits trade dress protection may occur should he ever submit it to the United States Patent and Trademark Office.

Below: Screenshots from the Britto’s gallery (top) and the Apple “Start Something New” webpage.

Romero Britto screenshotApple Start Something New screenshot

Copyright and Creators: Addressing Anti-Copyright Sentiments

Posted by Rebecca Blake on March 30, 2015

John DegenJohn Degen, novelist and Executive Director of The Writers Union of Canada, recently engaged in a back-and-forth of the value of copyrights to creators. The discussion was precipitated by a question Degen had been asked on developments in Canadian copyright law. As described on The Writing Platform, “In Canada, a small tweak to copyright legislation resulted in a large loss of income for many writers when the principle of ‘fair dealing’ was extended to include education and interpreted by educational institutions to mean unlimited copying of relatively large portions of works.’ Degen summarized the importance of copyright to creative professionals as, “If you create it, you own it. If someone wants to use what you own, there needs to be a discussion.” He later elaborated on his point in a series of tweets, including one that compared an attack on copyright as a land grab.

This lead to a response from an academic in Finland, who asked whether copyright, as other legal concepts, should “develop and evolve” – a point of view that Degen describes as, “I'm not attacking your rights; I'm merely questioning whether or not they actually need to exist.” In the resulting Twitter exchange, Degen referenced the change in “fair dealing,” describing how a push by academics in Canada led to the elimination of collective licensing of written works for education, and resulting in a loss of income for writers. In the meantime, the price of the educational materials and tuition – ostensibly the reason for the law change – continued to rise. The result, Degen wrote, was “an attack on workers’ rights, creative livelihoods, on academic freedom, on students.”

Degen’s full article can be read on his blog.

Photo of John Degen used with permission.

Guild Joins Organizations in Protesting the “Code of Best Practices in Fair Use”

Posted by Rebecca Blake on March 16, 2015

CAA logoThe Graphic Artists Guild, together with National Press Photographers Association (NPPA), American Photographic Artists (APA), American Society of Media Photographers (ASMP), PACA Digital Media Licensing Association, and Professional Photographers of America (PPA), has published a letter addressing concerns with the College Art Association’s “Code of Best Practices in Fair Use for the Visual Arts.”

Specifically, the letter contests a major conclusion of the study, that “copyright acts primarily as a barrier, encouraging self-censorship; and that artists are in an adversarial relationship with the marketplace.” The letter points out that artists only seek fair compensation to their work, and that the study fails to educate its audience on options for licensing work. The letter also notes that the study fails to address commercial applications of fair use made by museums and non-profits in the creation of objects and coffee table books for sale. Lastly, the letter expresses the dismay of the organizations that none were invited to particpate in the study groups leading up to the creation of the Code.

Some of the weaknesses identifed in the study, including incorrect assumptions of industry practices, misplaced recommendations, and the inclusion of personal opinion as factual information. The letter concludes that “Without participation from all of the stakeholders in the visual arts community there can be no consensus, let alone a set of “Best Practices in Fair Use for the Visual Arts.” As developed, rather than “providing a practical and reliable way of applying” copyright law and fair use, the document creates far more misconceptions than it resolves and encourages misappropriation of copyrighted work rather than the practice of due diligence and licensing.”

The full text of the letter can be read here.

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