Hello everyone. Before I post on the most recent episode, let me speak on something that actually brings my love of Lost and my training as an intellectual property lawyer together. As you have seen from my Lost posts and the blog roll on the right, I always refer you to Erika Olson's fantastic recaps over at Long Live Locke. Well, a guy by the name of Seanie B has been offering video recaps on You Tube of this season's episodes, apparently for TV Guide (I'm not going to link directly to his You Tube account because I don't want this guy getting any more popular). Seanie B has been blatantly plagiarizing Erika's recaps, as well as other Lost recappers. You can see the clear copyright violation in this side-by-side comparison provided by Doc Arzt.
Essentially, Erika's recaps are fixed (on the website) expressions (written communications) that have a modicum of creativity (the words she chooses are sufficient creativity, but I would venture to say her wit and humor is the true creativity). Those are the elements of a work that is protected under copyright. A coyright holder has the right to control other uses of her work, including, specifically, the right to a public performance of her work. In other words, she can control any oral recitations of her writings on a You Tube post.
Now, the facts of the show can be freely discussed by all. If Erika writes, "Ben allowed Alex to be killed by Keamy," I can also write, "Ben allowed Alex to be killed by Keamy." Facts are not protected by copyright. As well, anyone who talks about Lost and dares to write about it (your humble blogger included) can speak about the ideas behind the show. Ideas are not protected by copyright; it is the expression of those ideas that is protected. Any kind of flourish Erika uses to express her thought about the ideas behind the show, where she thinks the show is headed, and even the layout/order she talks about the show is all protected. That is what Seanie B has stolen from her. Fortunately, Erika has said she has been receiving some great advice from some intellectual property lawyers and is working hard to have the matter resolved.
Folks, if you love the show, you should absolutely talk about it, but do so in your own words. There is so much within the show to talk about that we don't need to steal other people's work. And read Erika's posts to show your support! Recap coming soon.
Showing posts with label Copyrights. Show all posts
Showing posts with label Copyrights. Show all posts
Monday, April 13, 2009
Wednesday, February 18, 2009
"Hope" for Fairey
Some of you may have heard of the case of AP v. Shepard Fairey. Fairey created the famous Obama poster on the left. It was based on this AP photo on the right.
AP claims that Fairey violated the AP's copyright in the photo (photos can be copyrighted because the selection of angle, color, brightness, etc. illustrate sufficiently the creativity and originality required to secure a copyright). Many in the legal field have been making the case that Fairey is in the clear here due to the doctrine of fair use. For a good fair use analysis, see Tim O'Brien's blog here.
Essentially, I think this is right. Fairey has clearly created a derivative work of the AP's photo. Derivative works are adaptations or visible reuses of an existing work. The right to create derivative works based on one's original work, lie within the copyright of the original author. Fairey added his own creativity to the AP photo, but his poster is clearly based on the AP photo. However, up to the point the suit was filed, Fairey hadn't made any money on the poster; any revenue generated by selling the posters was reinvested to make more posters. Lack of commercial profit is a factor in the fair use analysis. Further, and I think more importantly, the work should be considered "transformative" in that it added something to the social discourse (the election). Transformative works are more often than not considered fair uses -- we want people to create more works that add to the social discourse by commenting on works already in the public sphere.
I think the only possible problem Fairey's fair use defense will run into is that the AP's market for their photo as a poster. Under the ruling in the National Geographic Society v. Classified Geographic, Inc., 27 F.Supp 655 (D.Mass 1939), if a copyright owner has a market for derivatives of its own work, fair use will not prevail. However, as the AP is supposed to be in the reporting business, and not in the campaigning business (although the AP's "neutrality" has been called into question a number of times), the chance they were going to make and sell Obama campaign posters is virtually nil.
All in all, it doesn't seem like the AP really has a case. In fact, this is eerily similar to the Jones Day case we discussed below; another case of an entity with a lot of money trying to push around a small fry. I know, this happens all the time, but I just hope Fairey holds firm and sees this through. The AP has already been dropped by a number of papers and is facing a fiscal crisis of its own, so perhaps Fairey can do some pushing of his own.
AP claims that Fairey violated the AP's copyright in the photo (photos can be copyrighted because the selection of angle, color, brightness, etc. illustrate sufficiently the creativity and originality required to secure a copyright). Many in the legal field have been making the case that Fairey is in the clear here due to the doctrine of fair use. For a good fair use analysis, see Tim O'Brien's blog here.
Essentially, I think this is right. Fairey has clearly created a derivative work of the AP's photo. Derivative works are adaptations or visible reuses of an existing work. The right to create derivative works based on one's original work, lie within the copyright of the original author. Fairey added his own creativity to the AP photo, but his poster is clearly based on the AP photo. However, up to the point the suit was filed, Fairey hadn't made any money on the poster; any revenue generated by selling the posters was reinvested to make more posters. Lack of commercial profit is a factor in the fair use analysis. Further, and I think more importantly, the work should be considered "transformative" in that it added something to the social discourse (the election). Transformative works are more often than not considered fair uses -- we want people to create more works that add to the social discourse by commenting on works already in the public sphere.
I think the only possible problem Fairey's fair use defense will run into is that the AP's market for their photo as a poster. Under the ruling in the National Geographic Society v. Classified Geographic, Inc., 27 F.Supp 655 (D.Mass 1939), if a copyright owner has a market for derivatives of its own work, fair use will not prevail. However, as the AP is supposed to be in the reporting business, and not in the campaigning business (although the AP's "neutrality" has been called into question a number of times), the chance they were going to make and sell Obama campaign posters is virtually nil.
All in all, it doesn't seem like the AP really has a case. In fact, this is eerily similar to the Jones Day case we discussed below; another case of an entity with a lot of money trying to push around a small fry. I know, this happens all the time, but I just hope Fairey holds firm and sees this through. The AP has already been dropped by a number of papers and is facing a fiscal crisis of its own, so perhaps Fairey can do some pushing of his own.
Subscribe to:
Posts (Atom)
Posts
