A new (updated) Permission Seeker’s Guide for writers, artists, filmmakers

I recently received a sample legal guide by Joy R. Butler, “The Permission Seeker’s Guide Through the Legal Jungle”, with a long subtitle, “Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions”, second edition, published by Donohue.

When I wrote my first “Do Ask Do Tell” book in the mid 1990s, I considered the idea of formal rights clearance for quotes I wanted to use, and there is a whole legal infrastructure of law firms in New York and Los Angeles to do this.  But, as an entry self-publisher, I lacked the scale to do this.  So I simply kept my direct quotes short (editing them down at one step) and well within any reasonable implementation of Fair Use.  (I did consult with at least two attorneys, pro bono, one of them very high profile, familiar with the whole area of “don’t ask don’t tell” at the time.)

Joy’s handbook is general purpose in nature, intended to advise content originators ranging from independent bloggers and musicians to producers of independent films for the established festival and commercial marketplace.  In six parts and 29 chapters, its sections are written in straightforward prose and numbered as if a formal legal document.

I think an underlying problem is that there is an enormous range of purpose that people have when they create and publish media.  The most common motivation is profit and sales to consumers in the conventional economic sense. Much of the system around intellectual property law does presume that artists and writers may need to make a living and provide for others (families) off their work.  Much content is tied to publicly traded media companies who rightfully believe that they have a fiduciary responsibility to protect the property of their investors, sometimes encouraging litigation that on a smaller scale of common sense, may seem counter-productive and frivolous. At the other end, there are the self-made “pundits”, for want of better word, who may have wealth accumulated from other sources and who simply want to be known for their critical views, for example, of the results of our highly partisan politics.  They may not care about economic return the same way.  This sets up a lot of tension in the legal system.  At the other end, there are also “trolls”, in copyright, trademark and especially patent areas, who set themselves up as specialists in collecting legal penalties for others, rather like companies that buy bad debt to collect on it pennies to the dollar.

Some of the areas are of more direct concern than others.  I notice her comments in 14.1.2 about linking, deep linking, and framing (normally embedding videos).  It is true that in the early days of the WWW, some corporate content providers tried to require permission to link, especially deep link, to their content on rather poorly conceived theories of consumer confusion and illiteracy—but by 2000 or so, courts had established the idea that hyperlinks are essentially like attribution footnotes in a term paper or thesis.  Electronic Frontier Foundation has written that embeds are essentially just hyperlinks – but that begs the whole question of consumer perception and literacy (which would matter more to trademark and branding than any other area).  Generally, with YouTube embeds are quite simple.  If a video author allows embedding, presumably it is OK (from a copyright perspective) to embed it anyway.  If an original video was illegally pirated and posted, and then later embedded, usually Google takes the video down after getting a DMCA request and embed just stops working.  In some cases, video authors have not realized bloggers really do embed their videos, and mark them private when they discover this. It seems practically unheard of that the blogger gets sued for linking or embedding infringing material, but I suppose it could happen, if there was an aggressive troll looking for possible targets. I do think bloggers should pay attention to whether a source or video looks legitimate and legal before linking to them   For example, it is better to link to a video marked as posted by CNN than from a copy posted by someone else.  I do find that embeds disappear and when I check I discover that YouTube account has been terminated under a “3 strikes rule” for multiple copyright complaints, but there seem to be no consequences for the blogger.

Likewise, it is quite common for people to embed music videos on Facebook, Twitter, Google-Plus, and the like.  I do this a lot with classical music.  Sometimes these videos go dark from copyright claims.  I make it my own ethics policy to purchase a legitimate CD copy of a classical work I really want (like Rattle’s recent recording of a completed Bruckner Ninth) and particularly any substantial new work from any of several young classical composers whom I know personally (mostly in New York and LA).  In one or two cases, I have tried to urge artists I know to put their work up on Amazon for legitimate sale.

The author provides some useful discussion of whether or how recipes and detailed handbook instruction or lesson plans can be copyrighted. Generally, facts cannot be copyrighted.  Some television news outlets say that their stories cannot be “reproduced, redistributed or rewritten” but they cannot stop novices from re-reporting facts in their news stories and giving proper attribution (by links). She also discusses tattoos (and that would probably extend to temporary marks like DuoSkin). It would sound as if similar considerations would apply to chess openings and endgame problems (and similarly for other games, like Go, even card games like Poker).

I did not see discussion of Creative Commons issues (like using Wikipedia pictures).

Joy also provides description of how Section 230 and DMCA Safe Harbor work, similar in purpose (downstream liability shielding) for different problem areas – defamation-privacy-publicity vs. copyright.

I have read somewhere that it is possible to be held liable for linking to defamatory content, even if litigation for secondary linking seems to be very rare in practice. In fact, Joy mentions this possibility in 8.2.1 in discussing repetition in “communicating” a defamatory statement to the public, which need only be to one other person besides the subject (as in a Facebook account with full privacy turned on) to be viewed as “published” in the narrowest sense of the law.  The concepts of “per se” and “per quod” in defamation can be important.

Her discussion of music rights is interesting.  A composer in NYC once blogged that all composing involves some copying.  How many composers have been inspired by the way the Beethoven Ninth opens?

I generally am quite careful with posting video with much disco music in bars, because some music owners seem to be quite picky and trend to use trolls, and there is not a lot of value in hip-hop music that sounds so repetitious (my opinion, at least).  But I see people videotaping disco all the time when I go out.

In Section 13.3, she covers “citizen journalism” for some special topics, like photographing police activity and the First Amendment.  I think citizen journalism can raise some other issues ironically for lack of normal commercial purpose, a concept I heard a judge call “implicit content” in the COPA (Child Online Protection Act) trial that I attended in Philadelphia one day (as a sub-plaintiff) in late 2006.  That turned out to be important in at least one “online reputation” issue when I worked as a substitute teacher from 2004-2007, which I have covered elsewhere.  In an environment where the Internet is so easily misused (for cyberstalking, bullying, sex trafficking, and terror promotion) by less well-meaning users, some people in political power may see citizen journalism as gratuitous.  Ironically, as we know from the fake news (related to defamation), hacking and Clinton email problems, some of these issues had a shocking and major effect on the 2016 elections.

The book does cover the possibility of domain names, served up as first-come first served, conflicting with trademarks, and the ICANN domain dispute procedure does not always prevent trademark litigation (trademark dilution as a legal concept was strengthened by a law in 2005 under Bush).  Again, domain names are often set up for expressive purposes, which can come into conflict with other interests who want to use the same name to make money and employ people (even give them health insurance) with real profits.  Autarky actually means something in the content world to some people.

Author: Joy R. Butler
Title, Subtitle: “The Permission Seekers Guide Through the Legalm Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions”
publication date 2017, Second Edition (complimentary copy mailed to me for review)
ISBN 978-0-9672940-7-0
Publication: Donohue, 449 pages, paper, 29 chapters, indexed, numbered sections
Link: author blog

(Posted: Friday, June 16, 2017 at 3:45 PM EDT)


“Truth and Lies: The Menendez Brothers: American Sons, American Murderers”: special crime documentary from ABC News

ABC News (and ABC Studies aka Walt Disney) aired a special two-hour documentary film Thursday night, January 5, 2017, “Truth and Lies:  The Menendez Brothers: American Sons, American Murderers”, best link.  Although produced by a news organization, the documentary has the style and feel of independently produced crime documentary or criminal justice issue-oriented films (like Andrew Jenks).

Wikipedia has a summary of the lives of Joseph Lyle Menendez and Erik who murdered their parents in their Beverly Hills home by shotgun on the evening of Sunday, August 2, 1989 and told police that they had returned home and found their parents dead, apparently from a mob hit.  Police were suspicious from the outset, as the brothers lived lavishly until their arrest in 1990, as their case came apart after Erik told his girlfried.

The documentary treats this as a “bad family”.  The father was a self-made Hollywood businessman (the family first lived in Princeton, NJ) who had escaped Castro’s Cuba.  His values were that winning means everything.  That sounds a bit like Donald Trump and his father Fred.  But Donald, as far as we can tell, raised good kids. Hillary Clinton even admitted that  (I’d rather see the eldest son be president than Donald himself.)

But the Menendez parents did their homework for their kids, who didn’t learn to answer for their own performance or acts.  Seriously, through local churches, I’ve met well-off families and their high-performing high school and college kids, and I’ve never encountered anything like this with any family that I know.  Dad managed to get Lyle into Princeton, but Lyle cheated and got suspended.

Both brothers excelled at one thing: tennis.  The documentary also reports that Erik played chess fairly well, something I had never heard in my own circles (since I have played in USCF tournaments and gone to clubs at various points in my life).   Erik also became a male model (there are shirtless pictures with a nearly hairless chest), and when asked Erik denies being gay. But then the brothers started doing silly residential burglaries of other wealth homes.  They would get suspended sentences and “therapy” and dad made restitution.  Again, I’ve never run into anything like this.

Something else very curious is reported:  One of Erik’s past friends, Craig Cignarelli, wrote a 66-page screenplay describing a perfect murder, as reported in the Los Angeles Times in 1990 here.     This is interesting in that a fiction screenplay someone writes about a crime is viewed as predictive of what the writer might have a future propensity to actually do.  To some extent this crosses into the fiction-libel problem (Bindrim v. Mitchell, 1979, California, and other cases such as a  story in Penthouse).  My legacy blog has a class link on fiction and libel here.  As I’ve related, I got into trouble when I was substitute teaching over a fiction screenplay I had written and posted for a short film (30 min) in which a substitute teacher allows himself to be seduced by a slightly underage charismatic student, because the protagonist resembled me too much.

The documentary shows many interview clips in 1994 where a younger Barbara Walters interviews the brothers after their conviction.  The film also shows the brothers today, serving life sentences, in separate California prisons.  They have aged.  Erik has gotten married while in prison.

The film also covers the two trials, with Court TV broadcasting the first trial, and the claim that the brothers (mainly Erik) were abused, even sexually, by dad.

Wikipedia picture of Beverly Hills, CA at night.  (Was there in 2012 myself.)

(Posted: Friday, January 6, 2017 at 11 AM EST)

“Denial”: In British court, the historical fact of the Holocaust is put on trial


Name: Denial
Director, writer:  Mick Jackson, Deborah Lipstadt
Released:  2016
Format:  2.35:1
When and how viewed:  Angelika Mosaic, 2016/10/9, late afternoon, fair audience
Length 110
Rating PG-13
Companies: Bleecker Street, Participant Media, BBC Films
Link: official 

Denial” (2016), directed by Mick Jackson, and based on the book “History on Trial: My Day in Court with a Holocaust Denier” (2005) by Emory University professor Deborah Lipstadt (played by Rachel Weisz), does what it purports: show a trial of accepted historical fact in a British court (in 2000).

British libel law puts the burden of proof on the defense, whereas in American courts it’s 51% preponderance of the evidence requirement on the plaintiff.  I can recall a television interview in late 1997 with British author Kitty Kelly (“The Royals”), that in the UK (even after Brexit) truth is not an absolute defense to libel as it is in the U.S.

As the movie opens, Lipstadt is lecturing in Atlanta, when notorious Holocaust denier David Irving (Timothy Spall) disrupts her.  She refuses to debate him the way some of us would refuse to debate climate change today.


Soon she receives a letter in her outdoor mailbox warning her about the litigation.  There’s no spectacular if brief scene involving a hovering process server.  I would wonder right off if she really could be forced to pay damages from outside the U.S.

The movie moves to London, and her legal team (headed by Richard Rampton (Tom Wilkinson) comes up with a particular strategy:  a bench (not a jury) trial, and Lipstadt will not testify (which takes some potential sails out of the movie’s courtroom drama).  Now, Irving’s ideas (no direct photographic evidence from survivors, and “No Holes, No Holocaust”) is rather easily overcome by the direct testimony of myriads of survivors, down to their showing their disfiguring forearm tattoos.  Lipstadt wants to give survivors, as well as herself, a chance to testify.

The movie makes an interesting field trip to Auschwitz-Birkenau, where it explores the way Zytron was poured down chimneys into the gas chambers, and why the concentrations for “delousing” were so much higher.  The photography, nearly black and white hear, shows the expanse of the ruins of the barracks. The film moves to Krakow for another scene on the commons square.

My own novel manuscript for “Angel’s Brother” starts at Auschwitz, with the sign “Arbeit macht frei”. I go into a different direction, but then there is another scene at a hotel in Krakow (in my book).  I felt like I was watching a preview of my own future movie.  The town square scene in Krakow as interesting to me, as I had walked through it on May 25, 1999.  I stayed in a small hotel just out of sight from the camera in the movie.  I saw the museums (and remember the shoes as shown in the movie), but not the expanse of barracks.    I came into town by night train from Berlin, around 6 AM, before I took a “cab” to Birkenau.

The movie comes up with a curious logical twist toward the end:  does Irving’s obvious “anti-Semitism” and racism make the possibility of truth of his allegations less legally relevant?

The feature (at Angelika Mosaic) was preceded by a pre-show short film “Levitation” with a dancer on black-and-white abstract designs (steps and boxes, arranged as a stage).

Wikipedia attribution link for Krakow picture under CCSA 3.0 by FotoCavallo.

(Posted: Sunday, Oct. 9, 2016 at 10 PM EDT)

“Amanda Knox”: Netflix documentary plays like a thriller, but we know the outcome already; wrongful convictions and double jeopardy


Name: “Amanda Knox”
Director, writer:  Rod Blackhurst, Brian McGinn
Released:  2016
Format:  2.35:1
When and how viewed:  Netflix instant play
Length 92
Rating PG-13
Companies: Netflix Red Envelope
Link: subject

Amanda Knox” (2016), directed by Rod Blackhurst and Brian McGinn, seems to be the first major documentary film about the young woman seemingly wrongfully convicted for a murder in Perugia, Italy in November 2007.

The film starts with Amanda Marie Knox speaking, saying either interpretation of her life is scary for some people.  She man be the “sheep in snake’s skin, or she may be “everywoman” and that what happened to her can happen to anyone.  The Netflix documentary appears intended for theatrical presentation, using a 2.35:1 aspect, effective for scenes of Italy and around Seattle, but unnecessary for interviews.

Know says she was naïve and immature and sheltered when she left her comfort zone in her Seattle upbringing and went to Italy to study.  She became venturesome, and soon had a part-time job in a local bar.  She also met a boyfriend, Raffaele Sollecito, who would, because of his connection to her, spend four years in prison himself, probably wrongfully convicted.  Today he runs a software company.

The details of the case are laid out in a Wikipedia article .  The outline of the history is that she was convicted once, then essentially acquitted.  She returned home to Seattle, but Italian law allows double jeopardy, so she was tried again in absentia – but finally an Italian appeals court (or supreme court) finally threw it all out because of the lack of biological evidence connecting her to the murder (of British roommate Meredith Kercher).  During that time, there was debate in the US as to whether she could be extradited, since double jeopardy is not allowed in the US.  Knox would also be acquitted finally of calumny and robbery charges.

The film telescopes the appeals (although it shows the family in Seattle not being interesting in making quick money from media deals after the final acquittal), and focuses on the early aggression by police and prosecutors, who seemed egged on my tabloid-style media coverage, presenting Knox as a femme fatale, and with political ambitions of a particular prosecutor.  Although a common thief, Rudy Guede, who would be convicted, appeared to have committed the murder in a robbery-gone-bad, prosecutors seemed disbelieve that interpretation from the evidence, saying Guede would not have faked a burglary; they interpreted Knox’s delay in calling police after returning to the apartment (she didn’t chek on her roommate at first) and certain other sequences of acts as suspicious, even though they could not find DNA evidence connecting her and Sollecito of the crimes.

Knox has appeared in several television and cable specials, including giving grueling interviews to CNN legal journalist Chris Cuomo, who appears in the film.

As with “Dream /Killer” by Andrew Jenks, the new film shows how easily people can misinterpret circumstantial evidence or biased or non-credible witnesses or theories, whenever one’s reported behavior is perceived as overly self-serving.  I lost a substitute teaching job in 2005 after a bizarre set of circumstances, with some improbable coincidences;  prosecution might actually have been conceivable.  I’ve embedded my own story in a screenplay (“Do Ask, Do Tell: Epiphany”) but I can almost imagine a Jenks-style film on my own incident.  Life has more improbable coincidence than we expect.

Wikipedia attribution link for picture of Perugia by Georges Jansoome under CCSA 3.0

(Published: Wednesday, Oct. 5 at 8:15 PM EDT)

“Deepwater Horizon” treats the BP oil rig blowout in 2010 as another “Titanic”


Name: Deepwater Horizon
Director, writer:  Peter Berg
Released:  2016
Format:  2.35:1 Imax
When and how viewed:  2016/10/1 Regal Manassas VA, small audience
Length 107
Rating PG-13
Companies: Participant Media,
Link: official

Deepwater Horizon”, directed by Peter Berg, plays like a somewhat abbreviated “Titanic” (1997), or even “Poseidon” (2006, remake of 1974). The film creates the first hours of the Deepwater Horizon Oil Spill in April 2010.   The oil rig, about 50 miles out into the Gulf of Mexico, was essentially like a ship.  The first half of the 107-minute film sets up the characters at hazard, with a great deal of attention to the “negative pressure test” explained by John Malkovich – it’s supposed to reassure the crew.  There’s a lot of street talk in the technical explanations and diagrams.  Then hoses leak and mud leaks, and over about twenty minutes of film the crisis escalated until there is a full explosion and fire.


The central character is rigger Mike Williams, played by a still youthful and “creative” Marky Mark Wahlberg. Remember those articles (predicated on body fascism) in the late 1990s that showed how you were supposed to mimic Mark Mark in building your own fan webpage?  The early scenes show the departure from his wife  and his driving his SUV across an impressive Louisiana swamp-scape (including Lake Pontchartrain). Life on the rig is a bit like being in the merchant marine, it seems  (I wonder if there was ever a ban on gays.)  It’s cozy and acerbic.

His wife has to find out about the emerging catastrophe when his Skype connection breaks.  She has to call the Coast Guard, which reluctantly tells her about the fire.

Later, there is a scene where Williams jumps into the water from the burning rig and forces a female coworker to join – parallel to a somewhat sacrificial scene with Di Caprio near the end of “Titanic”.

The film certainly gives plenty of hints as to how a complicated man-made machine broke down and failed despite all the safeguards.  In that sense, it shares some commons with “Command and Control” (Sept. 23).  And the consequences for others in the region (man and wildlife – oil-slicked birds are shown crashing the rig) are catastrophic.  The film does not present the environmental cleanup, however, and I suspect there could be a sequel from Lionsgate/Summit/Participant that will.

There has been some SLAPP litigation against other journalists that reported on the supposed inadequacies of the cleanup efforts, as ABC News documents.   I recall BP CEO Steve Hayward’s “I want my life back”.

I saw the film in a new Regal auditorium in Manassas VA with full IMAX (as opposed to RPX). The 2.35:1 aspect was preserved throughout (not the case with “Interstellar“, for example).

Wikipedia attribution link for Coast Guard picture of burning site in May 2010.

(Posted: Sunday, October 2, 2016 t 1:30 PM EDT)