On Copyright, Creativity, and Compensation; Reason, February 12, 2024

 DAVID POST, Reason; On Copyright, Creativity, and Compensation

"Some of you may have seen the article by David Segal in the Sunday NY Times several weeks ago [available here] about a rather sordid copyright fracas in which I have been embroiled over the past few months...

What to make of all this? I am not oblivious to the irony of being confronted with this problem after having spent 30 years or so, as a lawyer and law professor, reflecting on and writing about the many mysteries of copyright policy and copyright law in the Internet Age.

Here are a few things that strike me as interesting (and possibly important) in this episode."

Lawyers weigh strength of copyright suit filed against BigLaw firm; Rhode Island Lawyers Weekly, January 29, 2024

 Pat Murphy , Rhode Island Lawyers Weekly; Lawyers weigh strength of copyright suit filed against BigLaw firm

"Jerry Cohen, a Boston attorney who teaches IP law at Roger Williams University School of Law, called the suit “not so much a copyright case as it is a matter of professional responsibility and respect.”"

Opinion: Harvard’s Claudine Gay should resign; The Washington Post, December 23, 2023

Ruth Marcus , The Washington Post; Opinion: Harvard’s Claudine Gay should resign

"Perhaps the most disturbing example is the least academic — Gay’s borrowing of words from another scholar, Jennifer L. Hochschild. In her acknowledgments for a 1996 book, Hochschild described a mentor who “showed me the importance of getting the data right and of following where they lead without fear or favor” and “drove me much harder than I sometimes wanted to be driven.”

Gay’s dissertation thanked her thesis adviser, who “reminded me of the importance of getting the data right and following where they lead without fear or favor,” and her family, “drove me harder than I sometimes wanted to be driven.”

Now, can I just say? Acknowledgments are the easiest, and most fun part, of writing a book, the place where you list your sources and allies and all the people who helped you get the manuscript over the finish line. Why not come up with your own thanks? What does it say about a person who chooses to appropriate another’s language for this most personal task."

Poet and translator to sue British Museum for copyright and moral rights infringement; The Art Newspaper, July 7, 2023

Anny Shaw, The Art Newspaper; Poet and translator to sue British Museum for copyright and moral rights infringement

"Sharples notes that the legal case will not only focus on copyright, but also Wang’s moral rights, in particular the right to attribution—or the right to be named or identified as the author."

She Took the White House Photos. Trump Moved to Take the Profit.; The New York Times, March 31, 2022

 Eric Lipton and Maggie Haberman , The New York Times; She Took the White House Photos. Trump Moved to Take the Profit.

"There is no legal prohibition on Mr. Trump assembling and publishing photographs that a White House staff member took during his tenure; under federal law, those photographs are considered in the public domain and not subject to copyright. There is a public Flickr account, now managed by the National Archives, that has 14,995 photos from the Trump White House, a third of them listing Ms. Craighead as the photographer."

This Woman's Boss Kept Taking Her Work, So She Added A Hidden Signature To Her Presentation, And It's Deliciously Petty; Buzzfeed, March 7, 2022

Alexa Lisistza, Buzzfeed ; This Woman's Boss Kept Taking Her Work, So She Added A Hidden Signature To Her Presentation, And It's Deliciously Petty

"In hindsight, she said, "I think [managers passing off work as their own is] common because in this field of work, it’s like a lion cage. You need to fight your way up. Literally. No matter who gets hurt."...

Sometimes people forget that they work with people, for people," Cristina concluded. "It doesn’t always have to be a competition. We can work together to grow. We don’t need to steal from each other. We can learn from each other and be better — create a better [workspace]...where everyone is supported and appreciated. But sometimes, I feel like that’s just a dream.""

Who Owns a Recipe? A Plagiarism Claim Has Cookbook Authors Asking.; The New York Times, November 29, 2021

Priya Krishna , The New York Times; Who Owns a Recipe? A Plagiarism Claim Has Cookbook Authors Asking.

U.S. copyright law protects all kinds of creative material, but recipe creators are mostly powerless in an age and a business that are all about sharing.

"U.S. copyright law seeks to protect “original works of authorship” by barring unauthorized copying of all kinds of creative material: sheet music, poetry, architectural works, paintings and even computer software.

But recipes are much harder to protect. This is a reason they frequently reappear, often word for word, in one book or blog after another.

Cookbook writers who believe that their work has been plagiarized have few options beyond confronting the offender or airing their grievances online. “It is more of an ethical issue than it is a legal issue,” said Lynn Oberlander, a media lawyer in New York City...

“The whole history of American cookbook publishing is based on borrowing and sharing,” said Bonnie Slotnick, the owner of Bonnie Slotnick Cookbooks, an antique bookstore in the East Village of Manhattan...

Mr. Bailey said many cookbook authors are used to the free exchange of ideas on social media, and may not be conscious of the importance of giving credit. “It has become so tempting in this environment to just take rather than to create,” he said."

University of South Carolina President Resigns After Speech Blunders; The New York Times, May 13, 2021

Christina Morales, The New York Times; University of South Carolina President Resigns After Speech Blunders

Robert Caslen, a retired Army lieutenant general, was accused of failing to credit a lengthy passage in a commencement speech he delivered.

"In an apology emailed to the university community on Monday, General Caslen admitted to using a well-known quotation in his address to the graduates of the University of South Carolina from a 2014 commencement speech made by retired Adm. William H. McRaven at the University of Texas at Austin."

How to find copyright-free images (and avoiding a stock photo subscription); TNW, April 29, 2020

MIX , TNW; How to find copyright-free images (and avoiding a stock photo subscription)

"If you search for any term and head to the Images section in Google, you’ll instantly find thousands of images. There’s one issue, though: Some of them might be copyrighted and you might be putting yourself (or your employer) at risk. Fortunately, you can filter images by usage rights, which will help you avoid that...

Here are a couple of our favorite free stock photo sites:

• Unsplash
• Pixabay
• Pexels
• StockSnap
• Burst

If you’re looking for copyright-free PNG cutouts, you should check out PNGPlay, Icon8, and PNGimg.

Even though a lot of these images are free to use without any attribution, you can support the creators by giving them credit, which in turn gives their work more exposure. You might not have the resources to purchase their images, but someone else might be interested in hiring them. Crediting them for their work helps with that.

You get to save some money by avoiding buying a Shutterstock subscription, they get free exposure. It’s a win-win."

Jill Abramson Plagiarized My Writing. So I Interviewed Her About It; Rolling Stone, February 13, 2019

Jake Malooley, Rolling Stone;

Jill Abramson Plagiarized My Writing. So I Interviewed Her About It

When journalist Jake Malooley talked to the former New York Times executive editor, she admitted only to minor mistakes — but her responses were revealing

[Kip Currier: In yesterday's Information Ethics class session, looking at Plagiarism, Attribution, and Research Integrity and Misconduct, we explored this illuminating 2/13/19 interview of Jill Abramson--veteran journalist and the former first-ever female Executive Editor of The New York Times from 2011 until her firing in 2014--by Rolling Stone reporter Jake Malooley.

I also played the first ten minutes of a 2/20/19 radio interview of Abramson by WNYC's Brian Lehrer, in which Abramson fields questions from Lehrer about her ongoing plagiarism controversy and research/writing process.

The Abramson plagiarism controversy is a rich ripped-from-the-headlines case study, emphasizing the importance and implications of plagiarism and research integrity and misconduct. Imagine being in Abramson's Harvard University class this term, where the 1976 Harvard FAS alumna is teaching an Introduction to Journalism course...

Speaking of Harvard, The Harvard Crimson has an interesting 2/15/19 article on the continuing Abramson controversy, as well as prior instances of alleged plagiarism by a trio of prestigious Harvard professors in the early 2000's, who, following investigations, "faced no public disciplinary action": Current Policy, Past Investigations Offer Window Into Harvard’s Next Steps In Abramson Plagiarism Case]

"In the days that followed, Abramson gave interviews to Vox and CNN. She unconvincingly sidestepped definitions of plagiarism upheld by the Times and Harvard, contending she is guilty of little more than sloppiness. She also claimed Vice is “waging an oppo campaign” against her book. Amid all the equivocation and attempts to duck the plagiarist label, Abramson still had not sufficiently explained how my writing and that of several other journalists ended up running nearly word-for-word in her book. I didn’t feel personally aggrieved, as some colleagues believed I rightfully should. But I did think I was owed straight answers. So late last week, I requested an interview with Abramson through Simon & Schuster, the publisher of Merchants of Truth.

On Monday afternoon, Abramson phoned me from Harvard’s campus, where she would be teaching an introduction to journalism seminar. According to the syllabus for Abramson’s Spring 2019 workshop “Journalism in the Age of Trump,” a copy of which a student, Hannah Gais, tweeted, Merchants of Truth is assigned as required reading...

This interview has been condensed for length.

Correction: This article previously stated that Abramson was on her way to her Spring 2019 workshop, “Journalism in the Age of Trump.” It has been corrected to clarify that she was on her way to an introduction to journalism class."

Podcaster Sued for Copyright Infringement for Using Music without Permission - Remember ASCAP, BMI and SESAC Licenses Don’t Cover All the Rights Needed for Podcasting; Lexology, November 29, 2018

Wilkinson Barker Knauer LLP - David Oxenford, Lexology; Podcaster Sued for Copyright Infringement for Using Music without Permission - Remember ASCAP, BMI and SESAC Licenses Don’t Cover All the Rights Needed for Podcasting 

"The bottom line – don’t use music in podcasts without getting permission."

The darker side of Stan Lee’s legacy; Vox, November 14, 2018

Alex Abad-Santos, Vox; The darker side of Stan Lee’s legacy

"As fans, we should celebrate Lee’s work and the wondrous comic book worlds he helped create. At the same time, it doesn’t take away from Lee’s legacy to also acknowledge the comic book writers, artists, editors, colorists, and everyone who worked with him to produce those characters and universes — the people who don’t, and perhaps never will, enjoy the same level of recognition."

Marvel Icon Stan Lee Leaves a Legacy as Complex as His Superheroes; The Daily Beast, November 12, 2018

Spencer Ackerman, The Daily Beast; Marvel Icon Stan Lee Leaves a Legacy as Complex as His Superheroes

"Stan Lee supercharged Marvel Comics into one of the most important cultural forces on the planet. But how much credit does he really deserve?"

Marvel Comics' Stan Lee Passes Away at 95; November 12, 2018

Kip Currier; Marvel Comics' Stan Lee Dies at 95

Marvel Comics' legend Stan Lee passed away today at the age of 95 in Los Angeles. In the 1960's, Lee collaborated with the late iconic artist Jack Kirby (and later, others as well) in co-creating many of Marvel's most famous superhero characters--the Fantastic Four, the Hulk, the Avengers, the X-Men, the Black Panther, and many more. Lee and Kirby's creations now rank among the most lucrative Intellectual Property in the "616 universe".

It's interesting to note the headlines that have been appearing today--some citing Lee as "creator", while others use "co-creator":

Stan Lee, creator of legendary Marvel comic book superheroes, dies at 95; NBC News

Comic Book Genius Stan Lee, Spider-Man Creator, Dies at 95; NBC San Diego 7

Stan Lee: Spider-Man, X-Men and Avengers creator dies aged 9; The Guardian

Marvel Comics co-creator Stan Lee dead at 95; ABC 13

Stan Lee, Marvel Comics writer, co-creator of the Avengers, X-Men and Spider-Man, dies aged 95; ABC (Australian Broadcasting Corporation)

Marvel Comics Co-Creator Stan Lee Dead at 95; TMZ

Marvel Comics co-creator Stan Lee dead at 95; WGN 9

Copyright vs. Conscience: Lawyering Up Isn’t Always the Right Move; PetaPixel, August 21, 2018

Blair Bunting, PetaPixel; Copyright vs. Conscience: Lawyering Up Isn’t Always the Right Move

"You read stories about photographers going after copyright abuse all the time, and it’s nearly always justified. In this case, I hope you can agree with me that seeking monetary compensation through legal recourse was not the right move. Sometimes you have to step back and remember that this may be a business, but it’s a business that relies on people. Once in a while, you have to remember that everyone featured in a photograph is a human, and as such all deserve compassion.

Rest in peace, Old Man."

Farting unicorn row: artist reaches settlement with Elon Musk; The Guardian, July 21, 2018

Damien Gayle, The Guardian; Farting unicorn row: artist reaches settlement with Elon Musk

"A Colorado artist says he has reached a settlement with Elon Musk after challenging the Tesla tycoon’s use of a farting unicorn motif that he had drawn as an ironic tribute to electric cars.

Musk used the cartoon image on Twitter, without attribution, to promote his Tesla electric car range, and ignored Tom Edwards’ attempts to come to a licensing arrangement, telling the artist’s daughter it would be “kinda lame” to sue."

Elon Musk drawn into farting unicorn dispute with potter; The Guardian, June 27, 2018

[Kip Currier: Given the facts as presented in this article (and knowing that the U.S. only recognizes "moral rights" vis-a-vis the very narrow Visual Artists Right Act [VARA]), is there anyone who still doesn't think that at the very least the "decent" thing to do would have been for Elon Musk/Tesla to provide attribution (let alone some kind of compensation) when repeatedly using Tom Edwards' image? Imagine if the situation were reversed and someone was using Elon Musk's "original expressions" without attribution.]

"Edwards said he wanted to speak out in part because he often hears similar stories from artists. “I realize my farting unicorn is not as serious as whistleblowers,” he said, “but honestly, it’s all about integrity.”

He added: “I’d really like to get on Elon Musk’s good side … He’s really really interesting. But he isn’t above copyright law.""

Artist Says Kendrick Lamar Video for ‘Black Panther’ Song Stole Her Work; New York Times, February 11, 2018

Robin Pogrebin, New York Times; Artist Says Kendrick Lamar Video for ‘Black Panther’ Song Stole Her Work

"On Saturday, Christopher Robinson, a lawyer for the artist Lina Iris Viktor, sent a letter to Mr. Lamar’s mentor and label head, Anthony Tiffith at Top Dawg Entertainment, alleging a copyright violation of the 24-karat gold, patterned artworks in her series of paintings “Constellations.” Ms. Viktor had been contacted twice by the film’s creators for permission to feature her work, the letter says, but she decided not to participate.

“The infringement of Ms. Viktor’s rights is willful and egregious,” the letter says, adding that the artist is willing “to discuss a resolution of all her claims, consisting at a minimum of a public apology for the unauthorized use and a license fee.”

In a telephone interview, Ms. Viktor said, “Why would they do this? It’s an ethical issue, because what the whole film purports is that it’s about black empowerment, African excellence — that’s the whole concept of the story. And at the same time they’re stealing from African artists.”"

Theft of intellectual property is a crime; St. Cloud Times, June 17, 2017

Karen Cyson, St. Cloud Times, sctimes.com; Theft of intellectual property is a crime

[Kip Currier: Wow...do we ever need more Intellectual Property education and awareness; lots of misconceptions and confusion out there. (Brief aside: See this story I posted a few days ago highlighting widespread confusion between copyrights and trademarks.)

This Op-Ed by Karen Cyson presents a wildly unbalanced understanding of the checks-and-balances codified within U.S. copyright law; regardless of whether one is or is not swayed by the facts of the alleged infringement. One of the biggest issues I have with this piece is that copyright law is often much more grey, more dependent on the specific facts of each particular case than Cyson makes it out to be:

No mention at all about whether the defense/doctrine of fair use might be applicable.

No acknowledgement of the increasing role of transformativeness within copyright law.

No insights into the downsides of copyright for the quilting community. No benchmarking comparisons made between the fashion industry (where there is no copyright protection for designs, at present, though various bills have been introduced over the past several years) and the quilting community.

And no distinctions between "attribution" and "infringement".

For an informative, more balanced look at the issues, read Tech Dirt's Glyn Moody (2012) post What Quilting's Legal Battles Can Teach Us About Copyright  ]

"We all know copying is wrong. If someone else wrote it, designed it, sang it, filmed it, drew it or photographed it, it's wrong to copy their work. It's illegal...

Theft of intellectual property — anyone's — is a crime. You can quote me. With attribution.

This is the opinion of Karen Cyson, a child-care provider in Stearns County and coordinator of Central MN Mensa. Her column is published the third Sunday of the month."

Can You Copyright Your Dumb Joke? And How Can You Prove It's Yours?; NPR, May 17. 2017

Laurel Wamsley, NPR; 

Can You Copyright Your Dumb Joke? And How Can You Prove It's Yours?

"In 2008, law professors Dotan Oliar and Christopher Sprigman published a paper that explored the norms comics had established to protect their intellectual property: their jokes...

Can you really copyright a dumb joke?

"The question really focuses on originality, and there is no freestanding barrier to copyright extending to a joke on any topic ... so long as that joke meets the fairly minimal requirements for originality," says Perzanowski. "That means it has to demonstrate some low level of creativity and importantly that it not be copied from some other source."

"Copyright will give you protection for this specific arrangement of words," he says, but not for a whole subject matter.

When it comes to topical comedy, he says, the question is whether one can separate an idea (which can't be copyrighted) from its expression (which can).

Judge Sammartino agrees. "[T]here is little doubt that the jokes at issue merit copyright protection," she writes, citing the relevant case law, "noting originality requires only independent creation of a work that 'possess[es] some creative spark, "no matter how crude, humble or obvious" it might be.'"

However, she adds, the jokes here "are similarly constrained by their subject matter and the conventions of the two-line, setup-and-delivery paradigm."

The result is that for O'Brien's jokes to infringe on Kaseberg's copyright, they must be "virtually identical," one step below verbatim."