Nina Paley’s Numbers: CC Licensing for Profit

Some of our readers may remember a post about a year ago about a cartoonist named Nina Paley and her copyright difficulties.

A short recap: Nina produced a film based on the Indian tale Ramayana intertwined with Annette Hanshaw’s jazz music. Although the sound recordings Nina used were in the public domain, the copyrights on the underlying musical compositions were not. Nina did not get permission to use the tunes and thus infringed the copyrights. Her settlement with the various rightsholders had a step setup, the more she sold, the more she had to pay to the rightsholders. Deciding that releasing her movie in the traditional way wouldn’t make her any money because most of the money would go to the rightsholders, Nina decided to release her film under a Creative Commons Attribution ShareAlike license.

The Wall Street Journal recently ran an article describing the profits Nina has made in the nine months since releasing her film, Sita Sings the Blues, under CC-BY-SA. The short article lists each source of revenue for Nina’s $55,000 total. It generally appears to be saying that CC licensing can work for smaller, professional artists, like Nina Paley, as well as the big guys that are always talked about, such as Nine Inch Nails.

There are a few more pieces of information, which the article does not cover, that give a better view of how successful CC licensing has been for Nina.

In the presentation on which the WJS is reporting, Nina reports that it cost her $80,000 to make the film, $200,000 if you include her cost of living during this time. Compared to the $55,000 she’s taken in so far, it seems like the CC licensing really isn’t working that well for her. However, when Nina approached independent distributors prior to releasing the film, she was told she would probably make only $10-$25,000, $50,000 absolute tops ‘in her wildest dreams.’ Now, comparing what she has made so far to what the distributors expected her to make total, she is doing pretty well.

A better tally of how she has done would include how the Sita copyright issue and subsequent CC licensing have increased Nina’s income from her other works by increasing her visibility; how much she makes from speaking engagements (which she says are her most lucrative work); and how much more she would have paid out under her settlement agreement had she released the film in a more traditional manner. Since all of these things only add to what she has already made, it’s clear that releasing Sita under a Creative Commons license was a good choice for Nina.

For more information on all the different ways Nina is capitalizing on CC-licensed Sita Sings the Blues, see: http://blog.ninapaley.com/category/sita-sings-the-blues/.

Better than Sliced Bread – Google Scholar Enters Our Lives

For those who haven’t seen it yet, Google recently launched Google Scholar.  This is huge for a number of reasons.

Google Scholar is a research search tool designed specifically for scholarly research, including legal research.  Although it does not offer everything that the giant, expensive, legal search providers have, it looks like it has a lot of very useful tools.  Check out the “How Cited” links (example), the reporter pagation in the left hand margin (example), and, for your jurisdiction specific searches, the advanced search options.

In addition to being a very useful legal tool, Google Scholar is worth attention here because it involves a number of intellectual property issues.  In the United States, case law is part of the public domain.  The inclusion of court opinions therefore poses no IP problems. However, Google Scholar also includes access to journal articles, books and such copyrighted materials.

Google Scholar seems to balance the access to these materials and protection of the copyright in a few different ways.  For some documents, Google Scholar provides a link to an outside paid service such as HeinOnline, JSTOR and even Lexis and Westlaw (links are to examples.)  These services provide you a snippet of the item and offer you ways to view the entire document.  Local libraries may provide free access to some of these databases and Google Scholar has a mechanism to help users find libraries with access.  Basically, in these cases, Google has skirted the potential copyright issues by linking to already existing services.  These services have already worked out the copyright licensing logistics for their resources.  Google just points the users to the resources and the service takes it from there.

For full text articles are also available from non-paid sites.  It appears that in these cases the articles are already available online from journal sites, publishers, and university sites (links are to examples).  Google again just points the users to the article.  In many cases, these links are to pdfs, so the user may not realize what site is providing the materials.  Some sites may not like this, or may have other reasons for desiring that their material not be included in the Google Scholar searches.  Google offers them the option of having their materials removed.

The biggest area of copyright contention in which Google Scholar seems to be involved is with regards to materials not accessible via any third party site, either paid or free.  These materials, when available, are available through Google Books.  While Google is still working through the copyright muck there, Google Scholar has done a good job of utilizing resources that are already available.

Google Scholar may be a new competitor for some of the expensive, traditional, legal research tools, but at its core it is really just a focused version of what Google does best, search.  Luckily for all the users out there, most of the copyright issues surrounding searching and linking have already been worked out.

Small Businesses Need to Know about IP: An Example

Last week there was a really big football game on tv.  American football.  A match between two long-standing rivals, but with an extra twist this year.  The good team’s traitor star-player left and through some manipulative maneuvering, made his way to the evil team.  It was the first time the traitor had ever faced his old team.  It was a brutal game.  The Ippers, one of whom you can tell was quite invested in this match-up, had to venture out into the land of local pubs in order to watch the game.  (It was only available on cable here.)  While out at the pub, they encountered a little trademark issue.

The bartender was sampling the wares of a local gentleman who produces and sells body oils.  She explained he’s a regular customer and often comes in to share new additions to the product line.  The gentleman carried two large, black zippered cases filled with vials.  The vials were filled with liquids of different colors, each with a white label identifying the scent inside. 

While the bartender was busy sniffing various bottles, the gentleman handed out a yellow flyer with information about his oils.  The company’s clever and catchy name was displayed in large type across the top, followed by “Body Oils for men and women.”  At the bottom, the prices, ranging from $5.00 to $35.00 depending on the size of the bottles.  In the middle was a list of the hundred-some scents he offered.

Some of the scent names on the list were merely descriptive: Red Rasberry [sic], Coco Mango, Kiwi Strawberry.  Others were suggestive, Golden Goddess, T-Shirt and Panties, Walk Like She Taken.  And then, there were the problem ones.  Two different kinds of problems.  First, well-known brands of perfume and cologne: Juicy Couture, Dolce & Gabbana, Cool Water.  Then, names of famous people who probably have nothing to do with this gentleman’s products: Barack Obama and Michelle Obama.  And the names of plenty of people who have their own perfume and cologne products that bear their names.

This gentleman is a prime example of someone who needs intellectual property help.  Not only has he opened himself up to a huge amount of liability for trademark infringement, passing off and potentially right of publicity, the gentleman also has plenty of his own intellectual property to protect.  He has his own company name, many very creative names on his scents and possibly the scents themselves.  [Protection of scents is highly debated in the world of IP, see IP Review for a more in-depth discussion of this.]

Unfortunately, there are a lot of people out there who don’t recognize the rights they might have or the rights others do have.  They do not know that attorneys are there to help them with these types of issues, and they won’t find out.  When they do meet with an attorney, it’ll be one representing those big companies whose trademarks are being infringed.  Hopefully, it’s only in the form of a cease and desist letter.

 

goldenrail would like to thank Cathy Gellis for her assistance with this post.

Cover Tunes, More Fun and Safer!

Cover songs can be really fun, especially when they’re done in such a different way than the original that you notice something new about the music.  The groups Vitamin String Quartet and Apocalyptica are famous for these types of covers, redoing heavy metal and pop music in orchestra styles.

Lately, this Ipper has discovered a different type of cover music in a similar vain.  A lone viola player covering currently popular hip hop tunes.  Oddly enough, that’s a combination that delights this particular listener.  However, this cover artist does things a little differently than the ones mentioned above.  Instead of just adapting the tunes for the viola and playing them, he plays along with the actual hip hop songs.  This is either more costly or more dangerous.

It is more costly if the artist has the permission and necessary licenses to release tracks where he plays along with the original songs.  It is more dangerous if he does not have permission.  This has to do with the different rights in a sound recording of a song as compared with the underlying composition itself.

The underlying composition, the only thing used by groups like Apocalyptica, has one copyright.  That’s it, one.  The copyright in the music itself.  That copyright might be shared by multiple writers, but that doesn’t matter.  To use the music, a person only needs to contact the song’s publisher and make an arrangement to use the work.

But to use the whole entire recording of a song requires a lot more work and a lot more money.  The recording involves a lot more people with rights.  It’s no longer just the publisher.  It’s also the performing artist, the producer, the record label and possibly other publishers depending on who has contributed to the final version of the song that gets released.  Basically, it’s a big, costly, mess.  And that’s if the user gets permission!

Of course, if the user doesn’t get permission, he doesn’t have to deal with that whole mess.  Instead, he is liable to all those people for infringing their different rights, copyrights, mechanical rights, performance rights.  If the user did a cover of only the musical composition itself, without permission, then he is only liable to the publisher.  Either way, the user is better off just covering the tune and not playing along with the original recording. 

(And one humble opinion here is that his music would actually be much better if it were just him and the viola, without the background noise of the original works.)

 

goldenrail would like to thank Justen Barks for his assistance with this post. a favorite of the viola tunes.

Photo credit: Blinged out Viola cc-by-sa goldenrail used Pegs of a viola cc-by-sa by Lemondedo, available at http://commons.wikimedia.org/wiki/File:Pegs_of_viola.JPG

But How do I Know if It’s Real?

Copyright infringement of music is rampant in Nigeria.  It may, in fact, be one of the few places where referring to infringement as piracy is truly accurate.  Huge optical disc plants churn out hundreds of thousands of unauthorized copies of cds.  The markets, the street corners, even the shops are filled with these infringing albums, to the point that finding a legitimate album is incredibly difficult.

Real or not?

Artists, producers and the Nigerian Copyright Commission (NCC) have tried a number of methods to mark legitimate albums as such.  Unfortunately, it seems most of these methods are copied by the infringers as soon as they’re developed. 

There’s the Hologram Scheme (part of the Strategic Action Against Piracy program) through which optical disc plants apply for the right to use special tools to place a special holograph on legitimate albums.  That didn’t work because optical disc plants who received permission and had arrangements with artists to manufacture albums would just manufacture, and mark, more albums than their agreement allowed.  The plants would not pay the artists for these extra albums.   Thus, the plants released thousands of infringing albums with the official markings into the market.

Then there’s the various markings of their own design that publishers, musicians and producers have put on their album envelopes in attempt to mark them as legitimate -symbols of the record label or perhaps the producer’s mark.  Infringers easily reproduce the album envelopes, special markings and all, at local print shops.  Bad quality isn’t necessarily an indication of an infringing copy, and good quality isn’t necessarily an indication of a legitimate copy.  That all depends on the particular print house used.  Quality ranges widely and it’s not unusual to find infringing products in packaging of higher quality than the legitimate versions.

Some artists also tried using special seals on their cd envelopes or placing the envelopes inside specially marked clear plastic sleeves.  But just like the envelopes themselves, the seals can be easily reproduced.  The clear plastic sleeves are supposed to provide some indication of quality for the album inside, but they are resalable.  There is no guarantee that what the buyer gets is what was put in the envelope and sleeve originally.

In short, although many attempts have been made, it seems Nigerian artists have yet to find a successful way to indicate to consumers that the album they are buying is legitimate.  With no sure way to know, where’s the incentive to try?  The artists and government urge consumers only to buy non-infringing works, but no one can tell them how to do it.

As a side note: This Ipper recalls attempting to purchase legitimate albums by only looking at the high end, expat-geared shops.  She’s not sure that worked, but still doesn’t know of any better options.  Suggestions are very welcome!

Meghan McCain Breaking Copyright Law?

Chances are, if you’ve ever been on any instant messaging service, you’ve seen somebody put up some lyrics as an away message or status message.  It’s there a for awhile, a few contacts see it, and that’s that.  But what about when someone tweets 140 characters worth of song lyrics?

Let’s find an example from which we can work.  (clicking, scrolling, more clicking)  Ah yes, here we go, the perfect example.  A tweet from Meghan McCain earlier today.  Nearly the entire second verse from Queen’s “We Will Rock You.”  No quotes, no attribution.

The Copyright Rights

We already know the song is copyrighted.  Since we are dealing with song lyrics, it is most likely that the rights to the words are held by various collecting societies, each holding a license to the rights in their respective territories.  The question then is whether or not this 138 character quote of the lyrics constitutes infringement. 

To answer this question, we turn to Section 106 of the US Copyright Act.  [The rights granted to copyright owners in this section of the Act are very similar to rights bestowed by other copyright acts around the world thanks to our international treaties.]  The rights granted include: the right to make copies, the right to prepare derivative works, the right to publicly display or perform the work.

Copied

The song is so popular that there is no question as to whether or not the work was copied.  Despite the lack of quotation marks, most people would recognize the passage and know that Meghan McCain was not the originator of it.  The work was copied, typed out or cut and pasted into the Twitter box.

Displayed

The copied portion was then publicly displayed via Twitter.  It’d be hard to argue that this is not a public display of the lyrics.  Tweets from tweeters who do not protect their tweets are available on the web.  In addition to this, Ms. McCain has over 50,000 followers.   Even if her tweets were protected, 50,000 people, most of who do not know her personally, could hardly count as anything other than public.

Infringement

So one of the activities to which the copyright holder was given exclusive rights was done by someone without permission.  However, that does not mean that the tweet was infringing.  In the US, we need to see if the tweet might qualify as fair use.  In the UK, and other jurisdictions based on UK law, we need to see if the tweet includes a ‘substantial part’ of the original work.

Substantial Part?

Going first to the question of whether the tweet is a substantial part of “We Will Rock You.”  This Ipper (and a friendly tweeting Kat) happens to think it is.  “We Will Rock You is a very short song, clocking in at under two minutes.  It has only three verses and a two-line chorus.  The tweet contained almost the entirety of one verse, or somewhere between a third and a forth of the song.  Looking at it in a frame more apt to Twitter, the song has 666 characters, including the spaces.  The song contained 138 of these 666 characters, or roughly 20%.  That’s a pretty good sized chunk.  Adding into this equation that the copied section is highly recognizable, the tweet copies a substantial part of the original work.  Of course, as my copyright professor always liked to say, “reasonable people can disagree,” so you, or a judge, may find differently.

Fair Use

Now, about that fair use.  This Ipper happens to think this tweet would qualify as fair use in the US.  Although, as discussed above, it takes a substantial part of the work and the original work is a published commercial work, there is no apparent market harm and Ms. McCain is not using the tweet for any commercial purpose.  Additionally, the usual commercial arguments used for internet infringers is absence.  It also does not appear that  Twitter, unlike YouTube for example, is making any money from this tweet.  There are no ads on the side of the page.  Twitter does not get more money for each person that views the tweet.

Summary

In the US, a song-quoting tweet is probably protected by fair use and thus not an infringement.  However, in other jurisdictions, most of which do not have fair use, tweeting a substantial portion of a song’s lyrics is very likely copyright infringement.   Unfortunately, it doesn’t matter if the tweeter lives and tweets in the US, the tweet can infringe anywhere it is displayed, i.e. anywhere it’s seen. 

I doubt Meghan McCain intended any harm in her tweet.  Most likely she’s a fan of the song, it was in her head, and she wanted to share it.  Perhaps next time she should quote just a little less, not enough to be a substantial part.  Maybe also throw in some quotation marks for good measure; plagiarism isn’t much better than copyright infringement.

Have Your Cake and Infringement Too

Today, this Ipper ventured forth into the restaurant world surrounding her San Francisco workplace.  In a corner, French-themed cafe, she spotted this beautiful cake design.

Which, likely not by chance, happens to look a lot like a certain famous Disney princess.  From the brown hair and the full yellow dress with matching gloves and down to the rose in her hand.  There’s hardly a part of this cake that doesn’t look like Belle.

Now, Disney is not exactly lenient when it comes to letting others use the company’s intellectual property, so is this cake a risk?

Off hand, I’d say yes, but there’s a few things we would need to know.  It is possible that some sort of agreement exists between Disney and the bakery to make Belle cakes.  Though it’s unlikely a small bakery has a deal directly with Disney, it is possible that Disney sells Belle cake sets, complete with a license to use and display and the resulting Belle.  A quick search online shows that such cake kits do exist.  However, the Disney kits all appear to feature a plastic cake topper, not a plastic Barbie-like doll.

So let’s assume there is no agreement.  This cake, like so many of these, is probably infringing.  It is an adaptation of Disney’s drawings (and statutes, and everything else they put out in Belle form).  In this case, it’s highly unlikely that the cake would qualify as fair use, especially since Disney is in the market of producing Belle cake kits.  A cake designed like a famous cartoon seems very similar to character costumes of children’s cartoon stars.  If the corporations that own the characters are already going after entertainers for unlicensed costumes, why wouldn’t they go after bakers for cakes?