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)

 

“Things to Come”: a philosophy professor faces “real life”

(note: use direct Amazon link and third party sellers if necessary until image above resolves as film becomes available in US)

Things to Come” is an engaging French (“L’avenir”) drama about an aging philosophy professor, directed  and written by Mia-Hansen Love.  At the first glance, I would wonder if professor Nathalie Chazeaux (Isaeblle Huppert) is a dilettante polymath sophist from the conclusion of H.G. Wells’s book “The Shape of Things to Come”.

Nathalie appears to be teaching college freshman, at a time when there are campus protests and professors who come to work are derided as “scabs”. There is talk of 1968, and of the setting of Bernado Bertolucci’s “The Dreamers” (2003), where Michael Pitt’s character Matthew “gets it” in one scene, and has to resist crotch shaving by a quirky couple in a late scene.

This movie, however, will stay on only a slightly kinder and gentler course.  Nathalie is publishing a revised philosophy text, but her publisher is giving her a hard time about selling books, wants to make a lot of jazzy changes, and threatens to drop her later, which could jeopardize her teaching job. There is some suggestion that the book is self-published.

She also has to deal with her mother (Anna Chancellor), sinking into dementia and Alzheimer’s, with the early symptoms of depression and manipulation of others.  She winds up putting mom into assisted living, and then mom starves herself to get attention.  On top of all of this, her obese, undesirable husband  (Robin Renucci) leaves her for another woman, despite their having two good sons, one grown, and one a mature teen. The family also has a huge tabby charismatic cat, Pandora, who seems to be trying to hold the family together.  This feline becomes the star of the movie.

That cat really loved mom (the way a dog would) and sensed something was wrong (don’t think cats don’t love their owners). But Pandora gradually gets used to the rest of the family and traveling with Chazeaux, in a cat box, by train, to a new hideaway with her own new boyfriend, two decades younger, one of her own former students Theo (Louis Garrel), in the Alps in the southeast, in an egalitarian, intentional community. They sit around and read somewhat Marxist poems and are supposed to be living off the grid – but their cell phones work when they need them.  Pandora runs out into the mountains, and returns for her human companions, offering them a mouse as a trophy.

Name:  “Things to Come
Director, writer:  Mia Hansen-Love
Released:  2016/12
Format:  1.85:1
When and how viewed:  Cinema Arts, Fairfax VA, 2017/1/2, fair audience
Length:  100
Rating:  R
Companies:  Sundance Selects, IFC
Link:  official site

Wikipedia image of Mont Blanc.

(Posted: Tuesday, June 3, 2017 at 2:15 PM EST)

“Now More than Ever: A History of ‘Chicago'”, and practically all of the music in a CNN documentary

Now More than Ever: A History of ‘Chicago’”, directed by Peter Pardini, and from FilmRise, aired on CNN Films Sunday night January 1, 2017 with showings at 8 om and 10 pm EST.

The film traces the history of the Chicago rock band from 1967 until present day, and covers its recent honors at the Rock and Roll Museum in Cleveland.  In the early days the band was known as “Chicago Transit Authority”.

The film is talky, and consists mostly of older band members reminiscing about what their lives on the road, often sharing cramped quarters (even refrigerators) communally, was like.

There is some footage from the Vietnam war and of protests, but no real mention of having to deal with the draft.

The music style had a lot of progressive dissonance, but would break out into lyrics that became familiar in my car radio in the early days of my work career.  I think I first heard their music in the barracks at Fort Eustis, VA around the end of 1968, during my own time with the draft.

Here were a few of the songs featured: “I’m a man” “I’m so happy” “Waiting for the break of day”, which is  “writing a song about writing a song”, Hard to same I’m sorry (like Scarlet O’Hara apologizing to Rhett before his famous line), and “I mean exactly what I say, but when I don’t.”   Chris Christie once repeated the “I mean what I say and say what I mean” idea, which also appears in Train’s short film vide “Bulletproof Picasso”.

Name:  “Now More than Ever: A History of ‘Chicago'”
Director, writer:  Peter Pardini
Released:  2016
Format:  2.35:1  (why?)
When and how viewed:  CNN, 2017/1/1
Length:  113
Rating:  PG-13
Companies:  FilmRise, CNN Films
Link:  CNN  Band  Cleveland Rock Hall

Wikipedia link for band image.

On Thursday, Jan. 5, the Washington Post ran a story “Why did CNN air a documentary about band Chicago produced by band members?“, Style section, by Paul Farhi. The suggestion of the story is that CNN is getting away from journalistic objectivity with showing a film produced by the subject.  That suggests that there is something inherently wrong with self-authored memoirs (like mine), not written by third parties.  It’s a dangerous idea, to me at least.

(Posted: Monday, January 2, 2017 at 12 noon)