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)

 

“Transgender Teen”: lengthy but useful handbook for parents

The Transgender Teen: A Handbook for Parents and Professionals Supporting Transgender and Non-Binary Teens” (by Stephanie Brill and Lisa Kenney) is a lengthy (338 pages) and practical guide for parents of (older) children and teens who say they do not have a conventional “cisgender” identity.

Indeed, a great deal of the book deals with basic terminology.  One of the most important terms is simply “non-binary”.  Two others are “assigned sex” and “assumed gender”, in light of “personal gender identity”. “Congruence” refers to the procedures (including medical and cosmetic) to make the person’s appearance more like what is expected for his or her   The modern use of the word “queer” refers to any aspects of gender (including but not limited to sexual orientation) that does not conform to what society has nominally expected for the person’s assumed birth gender. I recall that at the GOP convention in July, Donald Trump stumbled over adding the letter “Q” to LGBT.

Sexual orientation is a very different concept from gender identity.  The most common setting for gay men, especially, is for a someone who perceives his biological identity as “male”, and generally there is no aggregate difference in appearance or physical performance between gay and straight men.  “Gay” people are more common than “non-binary” or “transgender” people.

The book cover refers to a “generational divide in our understanding of gender”.  I grew up in the 1950s as a boy who fell behind in what was expected of future young men physically. Although I read women’s magazines and enjoyed watching “The Homemaker’s Exchange” cooking show, I was also interested in trains and science, and later music.  I never sensed a desire to be identified as female, but, as I have detailed elsewhere, gradually developed an awareness of my attraction to men during my teen years.  But the surrounding culture drilled into me that it was my duty to adapt to the needs of the world around me, to fit in to my community and be able to help protect it from potential outside adversaries.

The book dispels many of the myths, and notes that some teens will say “I can’t survive until age 18”.  The controversy over “bathroom bills”, such as the notorious HB2 in North Carolina, overlooks the fact that some transgender teens say they are not welcome in any bathroom.  State laws are likely to require a birth certificate change, which would normally require parental consent.

There is a disturbing report of a Cub Scout troop in New Jersey that told a transgender child that he (originally born a girl) could not continue to stay in the troop a month after the troop found out.  The BSA has been through a long process of accepting gay scouts (after winning a Supreme Court case in 2000 which took the libertarian position that it could do what it wanted).

Although the book goes into many concepts related to gender and sexuality, it doesn’t come close to Paul Rosenfels’s polarity theories (as in the 1971 book “Homosexuality: The Psychology of the Creative Process“).

Authors: Stephanie Brill and Lisa Kenney
Title, Subtitle: The Transgender Teen: A Handbook for Parents and Professionals Supporting Transgender and Non-Binary Teens
publication date 2016 (sent to me as a complimentary copy for review)
ISBN 978-1-62778-174-9
Publication: Cleis Press, paper, 338 pages, 12 Chapters, Bibliography, Glossary
Link: publisher’s

(Posted: Thursday, December 29, 2016 at 8:30 PM EST)