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)


“Who Took Johnny?” points to a cover-up of an underground sex trafficking ring with rich customers across the world

Name: Who Took Johnny?
Director, writer: David Bellinson, et al
Released: 2014
Format: 1.78:1, sometimes 1.37:1 for old footage
When and how viewed:  Netfix instant, 2016/12/20 (also available Amazon)
Length:  80
Rating:  NA  (would be R)
Companies: FilmBuff, Rumur
Link:  official

Who Took Johnny?” (2014), directed and written by a trio (David Bellinson, Michael Galinsky and Suki Hawley), examines the cold case of the apparent kidnapping of 12-year old paperboy Johnny Gosch  on his route in the early Sunday morning of September 5, 1982 in West Des Moines, Iowa.

The fact pattern is quite complex and it’s well go give the Wikipedia summary reference.

At first, the parents have difficulty getting local police to believe this is not a runaway.  But in time at least two other tween paperboys disappeared.  Johnny would have his picture displayed on a milk carton on space offered by a local dairy.

But over time, it becomes apparent that Johnny was probably abducted into a child sex ring with wealthy customers with secret lives as pedophiles, sometimes involved in child pornography.  The film says that about 0.5% of men are inclined to attraction to minors, possibly by genetics or unusual environmental influences beyond their control. This can include wealthy people in positions of power to run coverups.

One of the main witnesses is Paul Bonacci, who admitted later he was in the car that took Johnny.  Bonacci served prison time and had multiple personality disorder (perhaps similar to schizophrenia) that was attributed to early childhood abuse.  But eventually he was released and actually got married (to a woman).

In 1997, the mother (Noreen) would testify that Johnny paid her a mystery visit in 1997 with a companion and asked her to keep quiet, and then disappeared.

A British company and the Discovery Channel in Silver Spring, MD tried to produce and distribute a documentary about missing children and sex trafficking in 1993, to be called “Conspiracy of Silence”, and the film was itself silenced.

The film also traces a role for the National Center for Missing and Exploited Children  founded in 1984.  In recent years, the agency has maintained a database of digital images with watermarks that can be scanned matched to images on the Internet (now, even when backed up in cloud accounts, as well as in email attachments or on social media posts) for known illegal images of child pornography.  The film shows some apparent pictures of Johnny in captivity, but they were not of sufficient quality for digital matching to work.  But the mother insists they are images of him.

The film takes on sudden irony now because, shortly after the 2016 presidential election, there was an incident (typical news story) in Washington DC where the Comet Ping Pong Pizza was attacked by a vigilante (quickly arrested) who, somewhat gullible and in hard times himself, had believed a fake news story about a trafficking ring in that and possibly other nearby businesses.

The case should not be confused with a case in Minnesota, of Jacob Wetterling, who disappeared in 1989, and the case was resolved by confession recently (NBC story).

(Posted: Tuesday, December 20, 2016 at 9:45 PM EST)

“True Memoirs of an International Assassin”: a novelist is forced to live out his own “true story”


Name: True Memoirs of an International Assassin
Director, writer:  Jeff Wadlow
Released:  2016
Format:  2.35:1
When and how viewed:  Netflix instant play
Length 98
Rating PG-13
Companies: Netflix Red Envelope
Link: FB

True Memoirs of an International Assassin”(2016), directed by Jeff Wadlow, presents another layered concept where an “esteemed author’s” writings trigger his own musings in real life.

Ordinary looking  Sam Larson (Kevin James) imagines himself as hit man mason Carver behind the scenes in a coup in Venezuela.  The movie opens with his visualizing violent action scenes, with bodies blown up and the like.  Soon we see him as a wannabe novelist with a desk job, getting rejection slips from traditional publishers, for a novel with the same title as this movie.

One day a woman calls him late at night and offers to meet him in a Starbucks.  He signs a contract to have his novel published as a “true story” online only, as fake news.  It goes viral, and he’s famous quickly, interviewed by Katie Couric (where in one scene it looks like he could vomit on morning television).  He is getting set up to become his own character, “The Ghost”.

He does get asked things like, why doesn’t he live his own life instead of writing about other people’s.  (I get asked the inverse, why don’t I write outside my own narrative?)

Then real life catches up him, as he is kidnapped in his own apartment by a home invasion, and taken to Venezuela, where he is expected to act as a real hit man to assassinate the Venezuelan president (Kim Coates) and then counter-hired to get rid of a political opponent El Toro (Andy Garcia).  The CIA and DEA are involved in what becomes a conventional comic caper. Caracus is said to be the most dangerous city in the world.

In the end, he will write a real novel, “A Ghost in Colombia”.

By Superyessicanovahttp://www.flickr.com/photos/superyessicanova/468649543/, CC BY 2.0, Link

Posted Wednesday. Nov. 23, 2016 at 8:45 AM EST