July 2018

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IP Mosaic

The IIPSJ MOSAIC IP Law and Policy Roundtable Conference

Purpose and Objectives

The IIPSJ Mosaic Roundtable Conference was established to bring together scholars, law and policy makers, and social activists of diverse and multicultural backgrounds and perspectives to explore progressive and non-traditional ideas in intellectual property law, policy, and social activism. Beginning in the late twentieth century, digital information technology and other innovations sparked a paradigm shift in scholarly assessment of the social ordering function of IP protection, exposing the need to critically examine the law’s social justice obligations in promoting human rights, self-determination, cultural progress, and nation-building and evolution. Because IP law and policy makers traditionally value scholarly analyses in their development and interpretation of IP protection, this emerging body of progressive, social justice-oriented IP scholarship, especially when infused with the experience and insights of social activists and policy makers, can provide them with the doctrinal basis for shaping a more socially responsible IP legal regime.

The Mosaic Roundtable Conference Format

Each Roundtable Conference is organized around a specific IP social justice legal issue, policy, or socio-economic problem, and is comprised of four paper or project presentation sessions; each session is divided into a principal presentation, a commentator’s assessment, and open discussion. Representative Roundtable topics include equitable access to health, medicines, knowledge, and information; socially beneficial application of information technology and related advances to IP development and dissemination; legal protection for traditional and indigenous knowledge and expression; and promoting IP awareness, education, and entrepreneurial and socio-political empowerment in marginalized communities. The Roundtable Conference is also amenable to expansion into a two day format, to accommodate plenary panels, keynote presentations, and “incubator project” and work in progress sessions.

IP protection is intended to play an important role in engendering human development, socio-economic empowerment, and social justice. The traditional tools and experience of scholarly analysis, reflection, and discourse, however, are not always readily adaptive toward targeted social action, or what is sometimes referred to as “public intellectualism”. Through the IIPSJ Mosaic Roundtable Conference, IP scholars can work together with political activists, practicing attorneys, community organizers, and policy makers to produce “activist scholarship”, to collaborate on various “IP Empowerment” policy initiatives and projects, and to otherwise help to shape and effectuate a progressive and contemporary IP socio-legal agenda.

2014:The First Annual IP Mosaic Conference: Diverse Voices in IP Scholarship

Luncheon Keynote: Reconstructing the IP Scholar Activist

2016:The Second Annual IP Mosaic Conference: Impacting and Achieving IP Social Justice through Progressive IP Scholarship

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New to IP

We realize that many entrepreneurs, creators, and inventors may not have a lot of time to research and understand Intellectual Property (IP) law. We created this section of the website to provide some initial information about IP and how to find out more about the IP issues that are relevant to you. We have begun to gather information and resources to answer some of the most common IP related questions. If you have a general IP question* not answered below, feel free to email it to us at updates@iipsj.org.We will continue to update this page as we find new resources and receive new questions.

*Note we cannot provide legal advice but we do include links to organizations that provide free or low cost legal advice.

Intro to Intellectual Property (IP)

The most common types of IP are patents, trademarks, and copyrights.

Learn More:

USPTO

Article: What Are Patents, Trademarks, Service marks, and Copyrights?

Video: Basic Facts: Trademarks, Patents, and Copyrights

U.S. Small Business Administration video: Patents, Trademarks, and Copyrights

Check out our Legal Resources page to find free and low cost services to help you with your IP.

Check back for additional information.

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Copyright Claims for Graffiti Artists

Graffiti: Copyrightable Art, Illegal Activity, or Both?

Graffiti on buildings, in alleys, and on trains – sometimes signed, sometimes anonymous, and usually unwanted by the property owner.  However, often these creations are both beautiful and edgy. A perfect match for marketing clothing whose image so desperately wants to align!  Many brands attract customers based on advertising themselves as street-savvy and edgy.  And, while many graffiti artists often do not seek attribution, for obvious legal reasons, that does not necessarily mean that their artwork is free to use by others.

In recent years, the issue of unauthorized use of graffiti in advertising has bubbled up frequently.  In 2014, David Anasagasti, a well-known street artist in Miami, sued American Eagle for copyright infringement, alleging unauthorized use of his signature “droopy eyes” in their advertisements.  American Eagle used the imagery on their website, as part of their social media presence, as well as in-store displays globally.  The case ended in a private settlement.

In the same year, the Italian brand Roberto Cavalli was sued by a group of graffiti artists from California for allegedly using their artwork on the Just Cavalli line of clothing.

The most recent case sparking off a fresh round of discussion on the topic involves H&M, who received a cease and desist letter from Jason “Revok” Williams, over the use of a mural he created in Brooklyn in their ads. In response, H&M filed a lawsuit asking the court to declare that Williams had no copyright to assert because his art was a criminal act.  Possibly due to pressure from street artists’ and supporters’ calls for a boycott, H&M withdrew the lawsuit in March 2018.

Does Copyright Protect Graffiti?

United States Copyright law, as stated in 17 U.S.C. §102(a) states that copyright protection subsists “in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Copyright protection is derived from the US Constitution, specifically Article 1, Section 8, Clause 8, which states “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Another recent case, 5pointz, turned on the Visual Artists Rights Act (VARA) protection granted to artists of authorized works. While street art, the murals at issue were there with the permission of the property owner.  This case was a little different in that, the artists had permission to create their murals, with a verbal warning that it could be destroyed at any time.  While that case found in favour of the artists, the decision may have had more to do with the “willful” destruction of the street art without sufficient warning to the artist.

VARA, enacted in 1990, recognized the moral rights of artists to their visual works of arts. Codified in 17 U.S.C. § 106A, VARA grants authors of visual work additional rights regarding attribution of the visual art.  Specifically, the moral rights of artists of VARA-protected works must be disclaimed, in writing, which did not occur in the 5pointz case.

What does this mean going forward?

Many of the defendants in recent copyright infringement cases involving graffiti have been slow to respond to why they did not simply ask for permission.  Some, like H&M, may have been hoping to rely on the defence that unauthorized graffiti is un-copyrightable because it is not legal.  Others may have been unable to contact the original artist or assumed they would not take action to protect their intellectual property.

Additionally, property owners, such as those in the 5Pointz case, should not assume that they have the right to destroy or mutilate artwork without obtaining required permits, permission from the artists, or by obtaining a VARA waiver in advance.

Getting a federal court decision stating that graffiti is protected by copyright could have some interesting implications.  It will certainly increase the likelihood that retail companies will do additional due diligence to clear the use of graffiti in advertising or, alternatively, not use unauthorized graffiti at all.  Additionally, while H&M’s production agency did contact the New York City Parks and Recreation Department for permission, the inability to find an author may not be enough to protect against an infringement allegation in the future.

Likely, some types of commercial use will still be allowed – currently, for architectural and visual works the exceptions of Fair Use and Incidental Use apply to accusations of infringement.  For example, the recent Gayle v. Home Box Office, 17-CV-5867 (SDNY May 1, 2018) dismissed an alleged copyright infringement case concerning a shot of graffiti on a dumpster that appeared in the HBO series Vinyl.  Interestingly, the court in Gayle did not directly address the question whether graffiti was generally protected by copyright.  Instead, the court ruled that the graffiti in question was “never fully visible, let alone legible” and was, therefore, de minimus.

However, commercial users – such as retailers, film studios, etc. – will need to be careful to ensure that, if graffiti features prominently in the commercial use, permission is obtained.  Otherwise, a lawsuit could follow.  And, while all of the lawsuits involving graffiti have settled to date, it may not be cheap to do so.

So, while existing graffiti may indeed provide a tempting edge for a new marketing campaign, or as the backdrop for a great commercial, companies will need to decide if it is worth the legal or public relations risk.  If the original graffiti artist cannot be found or is unwilling to allow their art to be used, it may end up being less expensive to start from scratch than to manage the fallout from an allegation of stolen artwork, damaged reputation, and a lawyer for the lawsuit that follows.

by iipsj

Update on Blurred Lines

Blurred Lines in More Ways Than One – Part III

‘As mentioned in Part II, I didn’t expect to write several posts about this litigation, but it turns out that “Blurred Lines” (Williams v. Gaye) raises several copyright issues—doctrinal, cultural, and historical—worthy of consideration and not easily condensed into a single article. In the first post, I alluded to an editorial written in 2015 by scholars Lateef Mtima and Sean O’Connor supporting the outcome in Williams from a historical perspective, asserting that traditional means of registering works and identifying infringement disfavored artists of color.

Citing this OpEd drew some criticism from a few readers, particularly musicians, who noted that people of color comprised two-thirds of the authors of “Blurred Lines” and that the Mtima/O’Connor opinion seems to be a matter of looking for a problem that doesn’t exist, comparable to often-overwrought and ahistorical complaints about “cultural appropriation.” But discussions about cultural cross-pollination in the art are largely separate from the issues these scholars are raising about copyright law. Still, for context, we must acknowledge that a vast amount of American popular music in the 20th century—jazz, blues, rock, funk, soul, R&B, rap, etc.—is more deeply rooted in African-American traditions than Euro-American traditions.

The amicus brief Mtima and O’Connor wrote with colleague Steven D. Jamar was submitted to the Ninth Circuit in 2016 on behalf of the Institute for Intellectual Property and Social Justice. It argues for affirming the jury’s verdict in Williams, concurring in part and dissenting in part with regard to the evidence admitted at trial. Although the jury arrived at the opinion favored by the brief’s authors, the reasons why Gaye’s sound recording was not admitted as evidence points to the fact that “Got To Give It Up” is among thousands of musical works that happen to fall within an abstruse window in copyright history that, the authors argue, especially disfavored artists of color. For concision, I’ll refer to the amicus brief as the IPSJ Brief, which states …

“For reasons not fully known and not linked to any further change in the statute, at some point (in the 1930s we believe) the Copyright Office began requiring written notation deposits, before again allowing deposits of phonorecordings for musical compositions beginning in the 1980s, and again not linked to statutory changes.”

Like many artists who did not receive formal training, least of all in European staff notation, Marvin Gaye composed by getting the music that was inside him to come out through the instruments and the players and then record the finished sounds in the studio. Many composers—regardless of race or culture—work this way today, of course, and their sound recordings are both valid for copyright registration and as evidence in a prospective infringement litigation.

But Gaye’s 1977 hit was subject to the 1909 Copyright Act, and it predated the apparently inscrutable shift in USCO policy that finally allowed sound recordings as registration deposit copies in the 1980s. Although the IPSJ Brief cannot fully explain a rationale for the fifty-year period when only written-notation scores were accepted for deposit (e.g. the statute did not mandate this), the brief’s authors do allude to lingering, judicial ambiguity stemming from White-Smith v. Apollo, which held in 1908 that piano rolls were not copies of compositions because they were not readable by humans.

Had that ruling gone the other way, it might have set a precedent for accepting sound recordings as deposit copies much earlier in the 20th century. And although SCOTUS held that sound recordings are, constitutionally, “writings” in Goldstein v. California in 1973, there is apparently no clear explanation as to why the Copyright Office did not amend its deposit requirements for musical works for nearly another decade.

As a matter of social justice, and in the service of demanding that copyright must empower the broadest diversity of authors, the IPSJ Brief asserts that the seemingly arbitrary emphasis on written notation between the 1930s and the 1980s was especially harmful to artists of color, who composed almost exclusively in aural traditions. Certainly, it is hard to miss the fact that this period encompasses the span of time when certain styles of black music sneaked into the mainstream via white artists beginning in the 1950s and slowly gained wider acceptance as black music by black artists through the 1960s and 70s.

Partly because written-notation scores were required as registration deposit copies, composers like Gaye relied on other parties to transpose their sound recordings into musical notation. This practice led to two recurring problems, according to the IPSJ Brief: 1) the scores did not always adequately represent the compositions; and 2) unscrupulous managers, label owners, et al sometimes exploited the opportunity to falsely assert co-authorship of the compositions. The brief states …

“The Copyright Office should have accepted phone recordings as registration deposits throughout the entire period in which the 1909 Act was in effect. Neither Gaye nor other composers should today be penalized by restricting evidence of their compositions to a stripped-down lead sheet deposit created to comply with an extra-statutory administrative practice, especially where that deposit does not match the work composed by the author in the studio.”

In the “Blurred Lines” case, the jury was not allowed to compare the two sound recordings but was allowed to consider the “lead sheets” and expert testimony by musicologists. As the IPSJ Brief explains, lead sheets are somewhat rudimentary versions of musical scores that are generally of use only to professional musicians, who can interpolate what’s not on the page and play the song (by ear or from memory) the way the composer meant for it to be played. To get an idea of the difference, I’ll borrow a reference cited in the Brief and direct you to the musicnotes.com page for “Got To Give It Up,” where you can play a computer’s interpretation of the score and decide how much those lifeless and literal beeps and bloops sound like the Marvin Gaye song you know.

The IPSJ Brief asserts that only the sound recording correctly represents the originality (ergo the protectable aspects) in Marvin Gaye’s composition—and that the same is true for thousands of compositions made by artists, who worked in aural traditions rather than standard notation during the rough half-century at issue. Thus, the brief’s authors support the evidence presented by the Gayes’ musicologists, asserting that these experts correctly identified the protectable elements in the work, giving the jury fact-based reason to find infringement. Nevertheless, the authors remain critical of the fact that the sound recording of “Got To Give It Up” was not admitted into evidence.

The IPSJ Brief also argues that the outcome in Williams does not, as many fear, “copyright musical style.” To the contrary, the authors assert that the lines separating “style” (idea) from “originality” (expression) have instead been too often drawn incorrectly due to bias tilting toward certain musical traditions. In practical terms, this means that a composer like Gaye can arrange a dozen unprotectable ideas in a manner that is uniquely expressive, and this can only be analyzed in context to his studio-based process rather than on paper alone.

Whether or not one agrees with this analysis—or with the jury in Williams—Mtima, O’Connor, and Jamar offer an intriguing discussion about copyright history and practice during one of the most prolific, experimental, and culture-shattering periods in Western music. As much as it would be absurd to overlook American musicians of color between the 1930s and 1980s, it seems likewise inappropriate to ignore this aspect of the “Blurred Lines” case rather than to view it in tandem with the subjects of infringement doctrine, case law, and circuit court splits that this litigation has inspired other scholars to address.

by iipsj

Fair Use & Creative Control

Copyright in the Community: From Fair Use to Creative Control

This month we’d like to discuss some updates in the area of fair use and also invite you to the official launch of Creative Control, the IP community education and pro bono advice initiative.

What is Fair Use?
Fair use is a legal doctrine within the copyright law that allows the public to use copyrighted works and material without the permission of the copyright owner. The fundamental social purpose of copyright protection is to promote the progress of the arts and sciences: to advance American learning and culture by encouraging authors and other creators to share their works with the public. Consequently, copyright reserves to authors only certain specific uses of their works, such as making a copy, while all other uses, such as reading a book aloud as a bed-time story, are freely available to the public. In addition, fair use allows the public to also engage in the authors’ reserved uses, typically referred to as the authors’ exclusive rights, when allowing the activity promotes the social purpose of copyright.

For example, while making a copy of a work is an exclusive right, it would undermine the purpose of copyright if authors could always control whether their work, or any part of their work, can be copied. Without the fair use doctrine, the author of a news article or a history book could prevent a teacher from copying any part of a copyrighted work for use in a classroom discussion. Similar uses by the public, such as reproducing works for purpose of literary or public criticism or social activism, or reproducing portions or aspects of works to create new works such as “fan fiction”, are other activities that are dependent upon fair use.
Fair Use Recent Court Decisions
Some recent court decisions demonstrate the importance of fair use to the creation of new works and art forms and to free speech. In Drake Winning Sampling Case Over Fair Use Is Big News... But Still Demonstrates The Madness Of Music Licensing, Mike Masnick discusses how courts are reevaluating hip-hop sampling as fair use of portions of pre-existing music.  In Reaction video YouTubers win landmark ‘fair use’ copyright case in the US,” Heather Gay discusses how a court recently held that a YouTube “reaction video”, video wherein viewers of various Internet videos share their opinions of these works, was protected by fair use.
For more information on how courts have applied fair use, visit the Fair Use Index on the U.S. Copyright Office website. The index is a searchable database of court decisions on fair use compiled to aid the public in understanding the types of uses that have previously been determined to be fair use.  For more information on criticism and commentary as fair use, check out “Copy This Podcast Episode 9: Parody Isn’t Always a Laughing Matter.”
Fair Use and Halloween (and other uses…)
In light of the past week’s festivities, you might find interesting a recent op-ed by Joshua Lamel, Fair Use and Halloween, which discusses how fair use supports this All Hallowed American pastime.
Is there an IP social justice development or issue that you think might interest other IIPSJ readers?  Please let us know - and as always, we look forward to your comments and questions.
IIPSJ

Creative Control

The Lawyers’ Committee invites you to the launch of Creative Control - an initiative to elevate and empower online expression. The event will feature local DC artists, thought leaders on protecting your creative works, and one-on-one free advice with attorneys.

The event takes place Thursday, November 16 from 7 -10 pm at RedRocks on H St in NE DC.

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