Some Curiosities of the Copyright World

source: http://www.alice-in-wonderland.net

In Lewis Carroll’s classic (1865) children’s story, Alice in Wonderland, Alice remarked that things got “curious and curiouser” as she entered her mysterious world. Curious and curiouser is certainly one way to describe some of the things that have been happening in the copyright world lately. Copyright ownership has been contested in fields of creative expression as disparate as tattoos of NBA players to artificial language, in this case the Klingon language of Star Wars. It has involved high profile artists such as Led Zeppelin who were accused of illegally copying the guitar riff in their famous song “Stairway to Heaven” from musical group Spirit’s 1968 recording of “Taurus”, written by the late songwriter Randy Wolfe. The suit was based in part on allegations that Led Zeppelin members Jimmy Page and Robert Plant had heard Spirit play Taurus before “Stairway” was written. They were acquitted by a jury that concluded that while band members had heard the song, there was not substantial similarity between the key elements of the two pieces of music. Alleged copyright infringement has even involved a photograph taken by a monkey, as I have written in my blog. In this case we know, thanks to a decision of the California Ninth Circuit, that Naruto the macaque does not own the copyright on the photo, but we are still not sure who does.

We have been treated to headlines about a noted photographer, Carol Highsmith, who sued Getty Images for no less than $1 billion for marketing images that she herself had taken and donated to the Library of Congress, thus presumably putting them in the public domain. What really set the cat among the pigeons was a collection notice sent to her on behalf of Getty by License Compliance Services demanding that she pay a fee of $120 for the use of her own photograph on her website. The collection notice was withdrawn but Getty took the position that there is nothing in law that prevents a commercial enterprise from marketing products that are in the public domain (although they cannot claim to own the copyright). An everyday example is the business model of publishers who, without needing to obtain copyright permission, produce and sell works written by authors such as Shakespeare, Jane Austen and other more recent writers whose works are no longer protected by copyright. (It should be noted, however, that just because a work is in the public domain does not mean that new editions of such works can be freely copied). Still, while it is an imperfect analogy, publishing Hamlet is not quite the same as sending Shakespeare a collection notice, if that were possible, for using his own material.

We can assume that the image used by Ms. Highsmith was not taken from Getty’s repertoire (and thus did not violate any terms of service established by Getty) or else she would not have been so surprised to discover that a large number of her public domain photographs were included in the agency’s listings. The collection notice was clearly an error almost certainly based on computerized image searches, thus demonstrating the limits of technology in enforcing copyright ownership. Yet, in a digitized world where thousands of images are replicated every minute, the use of technology is likely the only practical recourse—while allowing for quick and easy redress where occasional mistakes are made. For the plaintiff the issue clearly is not so much the “infringement notice” but rather the fact that her work was and is being marketed by a commercial enterprise with no acknowledgment or credit to her. Despite the erroneous collection notice and her hurt feelings, Getty prevailed and the case was effectively dismissed.

The Highsmith case is one where the creator of the copyright was unhappy because her photographs are being reproduced and marketed commercially whereas she wanted them to be freely used in the public domain. Other photographers, such as David Slater, the wildlife photographer responsible for the infamous “monkey selfie”, are upset because exactly the opposite is happening. In his case, entities such as Wikimedia have decided unilaterally that his work is in the public domain, over his objections. All things are possible in the curious world of copyright.

Now here’s one that really stretches the imagination. Normally artists are eager to assert ownership and copyright over their works. Consider the case of Peter Doig, a Scottish-born painter who has lived in Canada, Trinidad and the UK and has become famous for his landscape paintings, some of which have sold for as much as $25 million. Doig was sued in a Chicago court by a Canadian retiree who claimed that he owned a genuine Doig, purchased for $100 in 1973 as a favour to Doig when he was an unknown artist. Doig denied it was his work. The fact that the painting was signed “Pete Doige” was a complicating factor for the plaintiff who claimed he got to know Doig in Thunder Bay, ON, in the 1970s when Doig was on parole for possession of LSD. The plaintiff, allegedly Doig’s parole officer, claimed he was unaware of the value of the painting until recently. The case was certified for trial despite Doig’s vehement denials that he was the artist. The case was finally decided on August 23, 2016, with US District Judge Gary Feinerman deciding that Doig did not create the painting. Doig offered his high school yearbook to prove that he was in Toronto and not Thunder Bay in 1973, but the plaintiff’s lawyer claimed that the photos were of Doig’s brother. The clincher, apart from Doig’s vehement denials, was a witness who told the court that the painting was by her late brother, Peter Doige, who passed away in 2012. It took a court decision to confirm that Doig was not denying his copyright over an earlier, somewhat amateurish work. In the world of copyright, it gets curious and curiouser.

To close this blog I will make another reference to children’s stories, in this case Peter Pan, written by J.M. Barrie. The term of copyright protection in the UK is now 70 years after the death of the author, in the case of a literary work, with only certain rare exceptions. One of these is Peter Pan. In 1988, when Barrie’s work was about to enter the public domain, the British Parliament passed a special Act providing perpetual copyright for Peter. Barrie had gifted the royalties to Great Ormond Street Hospital who continue to receive the royalties from specified uses of his work. This perpetual copyright is valid only in the UK, but is one of the odder curiosities of the copyright world.

For all its curiosities and unusual examples, copyright generally is pretty straightforward as a concept. Fundamentally, it gives the author of a creative work ownership and control of that work for a specified period of time, subject to limited exceptions for fair use and dealing. This helps ensure that artists, writers, photographers, musicians, film-makers and other creators have the means to earn a living for themselves and their families, and indirectly serves to generate investment in further creativity. That fundamental principle may be what copyright is all about–but it can get complicated when there is a dispute over ownership or use. That’s when copyright can take some very curious twists and turns.

© Hugh Stephens 2017. All Rights Reserved.

2 thoughts on “Some Curiosities of the Copyright World”

  1. More Copyright Curiosities (and some tips):

    For some authors, like Antoine de Saint-Exupéry (“Le Petit Prince/The Little Prince”), who died while serving France during WWII, their copyright authorships are extended for an additional 30-years after the country’s life plus 70-years copyright term (these authors didn’t have a chance to financially exploit their works during WWI & WWII).

    “The Little Prince” is likely in the Public Domain in most countries except in France where its copyright won’t expire until January 1, 2045: Death of Exupéry in 1944 + 70-years + 30-years. Source: https://en.wikipedia.org/wiki/List_of_countries%27_copyright_lengths

    Jonathan Bailey writes that Mexico has an abnormally long copyright term of life + 100 years, at which time Mexico can exploit the work. “…after the term ended, the work didn’t simply lapse into the public domain as we think of it. It doesn’t become simply free for everyone to use. Instead, the government is able to charge and collect fees for the use of the work.” Source: https://www.plagiarismtoday.com/2015/09/23/which-country-has-the-longest-copyright-term/

    Hugh writes, “That fundamental principle may be what copyright is all about–but it can get complicated when there is a dispute over ownership or use.”

    Notwithstanding corporate and made-for-hire works, to prevent others from claiming authorship and copyright to your independent/freelance creative works, timely register them with the US Copyright Office—that’s how you prove your copyright + author ownership! It can be that simple.

    For US-based AND international authors, registering their works before publication or within five-years of first-publication, grants them “presumptive proof” (prima facie evidence in a US federal court) that they have a valid copyright & ownership. See page 7 of http://www.copyright.gov/circs/circ01.pdf (17 US Code § 410(c)).

    In filling out a US copyright application, artists must “certified” that they are the author, copyright claimant, the owner of exclusive right(s), or authorized agent of the work. Artists and others who knowingly lie and make false representation of a material fact in the copyright registration application, are subject up to a US$2,500 fine (17 USC 506(e)).

    I also have to believe that a Certificate of Registration issued by the United States Copyright Office could be used in Berne signatory countries to prove an international artist’s authorship and copyright ownership.

    In the end, it can pay lots of dividends for Americans, Canadians, and international creatives to timely register their works with the US Copyright Office.

    If you’re a creative who enjoys engaging in long-fought expensive litigious disputes over your copyright ownership, then skip obtaining a US copyright registration altogether!

    Like

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