Tag: copyright

No music license needed! AI scraped it.
By Ryan E. Long

No music license needed! AI scraped it.

Music licensing. Whether it’s a Willie Nelson sample or otherwise to use in your company’s advertisement, permission is generally needed. But does artificial intelligence (“AI”) change this? Some say AI can crawl samples and mash them — making licensing unnecessary.

That’s until your company gets sued for copyright infringement.

To find out more, an understanding of music permissions is needed. Please click here for a short presentation from the Ella Project in New Orleans. As you will hear, music licensing is tricky.

Artificial intelligence Art: Who Owns It?
By Ryan E. Long

Artificial intelligence Art: Who Owns It?

If your pet dog Hans takes a selfie, does he own the copyright? A recent decision by the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) is instructive. It says that a monkey can’t own the copyright to his selfie. The reason? Only humans can own a copyright under U.S. law. But who owns artificial intelligence (“AI”) created artwork? This entry addresses that issue.

The Ninth Circuit Decision

The Indonesian monkey at the heart of the dispute is named “Naruto.” He is actually quite handsome, as you can see if you look up his profile shot – not on Linked In, of course. The story began on the island of Sulawesi, not Fantasy Island but close. David Slater, a British wildlife photographer, left his camera unattended. Naruto then picked up the camera and, harnessing his training at the British Museum School of Art and Design, began taking stunning photos of himself.

Whilst Gentleman’s Quarterly and other magazines sought to feature him in their publications, Naruto couldn’t be bothered. His images, posted by Mr. Slater, had already gone viral. Naruto retained the services of People for the Ethical Treatment of Animals (“PETA”) to sue Mr. Slater and his publishers for copyright infringement. The Ninth Circuit dismissed the suit because Naruto can’t own the copyright to the photos.

Unfortunately, Naruto couldn’t be reached for comment.

Part of the reasoning of the court was simple. The U.S. Copyright office “will refuse to register a claim if it determines that a human being did not create the work.” The office further states that it will exclude works “produced by machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” The question raised by the decision is whether computer generated art is copyrightable and, if so, whether the AI – or its programmer – would be the owner.

AI Art & Blurred Lines

The issue of AI created artwork isn’t academic. According to one recent article in Art Net News, the Paris based collector Nicolas Laugero-Lasserre acquired Le Comte de Belamy, which was created by artificial intelligence. Mr. Laurgero-Lasserre bought the work directly from Obvious, a collective that created the AI behind Le Comte de Belamy. Instead of a signature, the artwork is signed by the AI using an equation. Naruto is jealous.

As AI gets smarter and more evolved, it will be capable of not only just creating art. Think of AI like that found in War Games (1984) which can create systems of engagement resembling  warfare. Then you extrapolate such a system to business. In such a case, a company like Obvious can create AI that spawns not only art but other companies, chock full of their own versions of Suri. This AI dominated world is laid out in movies like Her (2013), in which the main actor – Joaquin Phoenix – forms an intimate relationship with an AI app played by Scarlett Johansson. With the proliferation of synthetic body parts, imagining a full functioning AI cyborg that resembles a human isn’t as far-fetched as it may have sounded in the 1950s. The lines between fair use and copyright infringement have been blurred by mash-ups that modify music samples so that their identities become unrecognizable. Similarly, there will be blurred lines between human and AI created art as the years progress. The law needs to be ready to address these issues.

But, as the character Willie Stark explained in Robert Penn Warren’s All The Kings Men, “(the law) is like a single-bed blanket on a double bed and three folks in the bed and a cold night . . . There [not] ever enough blanket to cover the case, no matter how much pulling and hauling, and somebody is always going to catch pneumonia.” Maybe the shortcomings of the law in dealing with AI issues will always be here. But such shortcomings can be mitigated by policy makers who have foresight today as to where technology is heading tomorrow.

Public Domain Versus Work-For-Hire

If Naruto doesn’t own the copyright to the photo, then it would likely be in the public domain. However, an argument could be made that any art created by other animals who reside on government owned reserves or private property would be owned by the reserve or property owner. This is how a work-for-hire works in the U.S. While the author normally is the proper copyright owner, a work-for-hire arrangement gives the employer of the author the right. A similar approach could be taken by those who provide room and board to the likes of Naruto the handsome.

The issue remains about whether AI created art is also not subject to copyright because it was “produced by machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” Using the reasoning of the Ninth Circuit, the answer would be that all such works are in the public domain. But then the question becomes whether one could make copies of Comte de Belamy in the U.S.  without worrying about a copyright infringement lawsuit. While several nations, such as the U.K., grant copyrights to a person who arranges for the creation of computer generated works, the U.S. does not.

Either the U.S. takes the U.K.’s lead or these works will end up in the public domain. This overly rigid approach as to what constitutes “intervention from a human author” would result in counterintuitive outcomes for companies like Obvious. By allowing owners of AI to own the creative works spawned by their systems, U.S. law could also conceivably give copyright rights to those who own the property on which the likes of Naruto the handsome reside.

Grandma’s going to jail for digital trespassing?
By Ryan Long

Grandma’s going to jail for digital trespassing?

“No digital trespassing! Violators will be sued. Survivors will be sued again!” Ever seen that sign? Not likely. That’s because, technically, there is no law against digital trespassing per se. This occurs when your grandma’s new universal remote control climbs over, figuratively speaking, the encryption security fence on copyrighted content, such as the software to her old garage opener, so as to enable communication between the new control and old garage door opener. And yet some copyright owners want to hold your grandma civilly or even criminally liable under federal law for such trespassing. Allowing them to bust grandma would be an unwise expansion of their copyright monopoly.

Say you buy your grandma a garage door opener made by Acme Inc. The garage door opener comes with a control. Now, granny has a lot of controls, and she is too old to futz around with a control for her television, one for her radio, and one for her garage. Given you love your grandma and want to make her happy, you buy her Bling Inc.’s universal remote control. Bling’s one size fits all control circumvents the encryption technology fence on Acme’s garage door opener. In so doing, Bling’s remote is now able to gain access to Acme’s copyrighted software, thereby enabling interoperability. Otherwise, they wouldn’t be able to communicate because Bling’s remote would be speaking kilometers per hour to the miles per hour garage door opener without a translation protocol.

Does Acme have a claim for digital trespass against Bling or your grandmother? In the view of some copyright holders, the answer is yes. That’s because, in their view, Bling’s universal remote control has enabled your grandma to violate the anti-circumvention provisions of what is called the Digital Millennium Copyright Act (“DMCA”). This is so even if neither Bling nor your grandma infringe, or otherwise induce infringement of, Acme’s copyright in the source code by copying, reproducing, or otherwise publishing it. Under this view, there is a per se — automatic — violation of the DMCA whenever Bling or your grandma trespass, regardless of the circumstances.

But in the view of federal courts, there is no per se rule against digital trespassing under the DMCA. Bling’s universal remote control allows for what is called interoperability between grandma’s different devices, which is an efficiency that Congress didn’t want to do away with when passing the DMCA. In fact, the DMCA explicitly states as much in Section 1201(f)(1), in case you want to bore yourself by looking it up. What is more, courts have dismissed claims brought under the DMCA where the plaintiff is only able to allege or prove digital trespass, no corresponding copyright infringement or conscious inducement of the same.

Then why do companies like Acme file lawsuits seeking redress for digital trespassing? There are various reasons. One is security. Closed software universes, like Apple’s, protect better against viruses that can more easily attack porous systems that are liberal in their approaches to interoperability. This is one of the reasons why Apple’s computers are hacked less often than personal computers. The second is the fear that digital trespassers will pirate copyrighted content. The third is lost revenues. Conversion technology which allows newer kilometers per hour devices to communicate with older miles per hour ones via a translation protocol cost companies money. Rather than forcing granny to buy a new television in order for her to gain access to content protected by new encryption technology, conversion technology enables her old television to communicate with the new encrypted content. In the process, new technology sales suffer.

In the end, your 92 year old grandma isn’t going to jail! One reason is that her and her friends pack heat with silencers. The other is that the DMCA didn’t expand the scope of a copyright holder’s monopoly, and it expressly says that. However, it may take some more court decisions to make that clear to aggressive copyright holders who seek to pursue granny for digital trespass merely because she uses conversion technology to watch Netflix’s “Just Call Saul” on an old outdated screen. Otherwise, grandma’s crew might just shoot them all.

The big bad wolf to the . . . rescue?
By Ryan Long

The big bad wolf to the . . . rescue?

If you work in technology, the big bad fair use wolf can be your best friend. Read below to find out why.

A few days ago, the U.S. Supreme court denied Google’s appeal from a decision by the United States Court of Appeals for the Federal Circuit which found that source code — written instructions that run computer software — can be protected by copyright law. In so doing, the nation’s highest court left in tact a ruling by the Federal Circuit which found Google could have infringed the copyright to Oracle’s software programming platform.

To the extent Oracle’s code is original and non-functional, then it should find protection against wolves inside a nice cozy copyright house during the cold winter. That’s because this type of source code is akin to the original combinations of words that authors use as inputs into their own hardware — books, screenplays, or plays. Because these words are original expressions of perhaps unoriginal ideas, they are copyrightable subject matter. No less should be true about original non-functional source code.

Nonetheless, the copyright house isn’t impervious to the elements outside. If you copy the idea behind a copyrighted work, then you have no liability because ideas aren’t protected by copyright law — but functional ideas can be potentially patented. That’s why, when copyrighted expression is so inextricably linked with a functional idea, many federal courts will deny copyright protection to the expression, especially in the case of functional source code. Small tweaks in code inspired by not all that original — but original enough for copyright protection — source code can keep you away from the infringement line. In such a crowded market, there are only so many ways to express a functional idea, which is why courts are remiss about extending the scope of copyright protection for any one particular expression. To do otherwise would hurt innovation. No less is true in other expressive endeavors. The scope of copyright protecting less original works — such as a “me too” drip style painting inspired by the works of Jackson Pollock — is smaller than that for pioneering ones — such as an architectural design that blends, for the first time, Frank Lloyd Wright with Frank Gehry.

Even if Oracle’s source code can jump the foregoing copyright hurdles, the story doesn’t end there.The lower court has yet to decide whether Google has a fair use defense. In the end, if Oracle’s source code is original enough for copyright but not so original so as to read that protection broadly, then Google’s fair use big bad wolf will likely huff, puff, and blow over Oracle’s copyright lawsuit to the ground.

An Axl Rose sample used in a mash up often doesn’t sound as sweet.
By Ryan Long

An Axl Rose sample used in a mash up often doesn’t sound as sweet.

The bright lines of the real property based view of copyright are being blurred by technology. In 1991, Mr. Biz Markee was found liable for infringing Mr. Gilbert O’Sullivan’s copyright in his song, Alone Again (Naturally), when Mr. Markee used an unauthorized sample in his rap song entitled Alone Again. Had Mr. Markee used Mr. O’Sullivan’s song in a mash up, the result may have been different.

A mash up is a digitally created song that splices in elements of other songs, sometimes in very small increments — not in quarks, but in milliseconds — to create what some would argue are original pieces. Think of a mash up as a fusion dish that blends elements of Chinese, southern soul food, Italian, and Mexican cuisine into one dish. The question arises whether the unauthorized use of other people’s songs in a mash up is an infringement or a fair use of their copyrighted works?

The question isn’t an academic one. According to Turning Profit from Music Mashups, New York based tech company Dubset Media, Inc., collects royalties from mash up artists who use other copyrighted songs in their works. The company’s technology, known as “MixScan,” tracks uses of copyrighted songs down to the second on mash ups. It then distributes royalties to labels depending on the extent of use.

These royalty streams come in different forms and can be lucrative, Turning Profit saying that such mini sampling can generate an additional $1.2 billion a year in revenues. That’s because there is a copyright in the musical composition underlying the song, and in the recording of the song. In Mr. O’Sullivan’s case, he would own the copyright to the composition of Alone Again (Naturally), which includes the musical notes and lyrics to the song, in addition to his recording of the song in the studio, known as the “master.” Mr. O’Sullivan collects royalties from those who wish to publicly perform or re-record his composition, and from others who wish to use the recording of the song in their music or in a film. Mr. Markee avoided paying these royalties to Mr. O’Sullivan by using the uncleared sample in the rap song Alone Again.

However, had Mr. Markee used Mr. O’Sullivan’s song in a mash up, the resulting decision finding infringement wouldn’t have been so easy. Mr. Markee would likely have had a colorable fair use defense if he: physically transformed the sample (changing the frequency, tone, bass) so that it became physically unrecognizable in the final product, sampled only a small part, and if the resulting rap song either had no effect on the market for Mr. O’Sullivan’s work, or exposed it further.

Courts are more prone to find fair use — and no infringement — when there is either physical transformation of the copyrighted work in a new work, or application to a new purpose. Patrick Cariou, a photographer, lost his copyright infringement lawsuit against appropriation artist Richard Prince because he had physically modified the photographer’s photos of Rastafarians — in one case, putting a gas mask and guitar in the Rastafarian’s hands. In the recent Google books case, Google was found to have fairly used authors’ copyrighted indexes to their books by making them searchable via Google books. This is so even though there was no physical transformation of the copyrighted work, but, rather, only application to a new purpose.

Before the recent technology boom, copyright infringement was viewed with a real property monocle — one toe over the line constitutes a trespass. But technology is making that toe harder to see and the resulting line between properties less clear. A rose by any other name may smell as sweet, but an Axl Rose sample in a mash up doesn’t smell as sweet.

Death of the thrift shop?
By Ryan Long

Death of the thrift shop?

We all know the thirft shop. You go. You buy The Great Gatsby. It is used. It is cheap. It is a great read. And potentially illegal contraband? That could be so. Under the Second Circuit’s ruling in John Wiley & Sons, Inc. v. Kirtsaeng, you may not resell copyrighted materials that are manufactured overseas in the U.S. The Supreme Court heard oral arguments in the case on Monday. Until Congress amends the Copyrigt Act to limit the first sale doctrine to copyrighted materials manufactured in this U.S., the Supreme Court should overrule the Second Circuit.

Under the first sale doctrine, you are permitted to buy a book and then resell it. The copyright owner no longer has a right to restrain your use of the book once you have paid for it. However, there is a provision in the Copyright Act which prohibits you from importing copyrighted works into the U.S. without first obtaining the copyright owner’s permission. The question is whether that provision of the Act applies to copyrighted works that are used.

In Wiley, the Second Circuit was asked to resolve the apparent conflict between these provisions of the Copyright Act. The defendant had family members buy academic books overseas and then send the books to him in the U.S. When here, he sold the books for a profit. The books were manufactured overseas, and were protected by U.S. copyright law. The plaintiff, a publisher of some of the books that defendant was importing, sued him for copyright infringement, claiming he was violating their right to decide what copyrighted goods to import, or not. His defense was that he was protected by the first sale doctrine because all of the books he was importing were used. The lower court refused to instruct the jury about the potential applicability of the defense, and the man was found liable for copyright infringment.

Using some mental gymnastics, the Second Circuit held in Wiley that the first sale doctrine did not apply to the books in question because they were manufactured overseas, whereas there would have been a defense had the books been manufactured domestically. The Second Circuit came to this decision after reading a concurrence by Justice Ginsberg in Quality King, a previous Supreme Court decision in which the court held that the first sale doctrine applies to copyrighted products produced in the United States and resold here after being re-imported. Even though the majority opinion in Quality King didn’t peg its first sale doctrine holding to the fact that the product in question was domestically produced, Justice Ginsberg suggested a different outcome could result if a product were produced overseas and then imported.

It seems if Congress wanted to expand a copyright holder’s rights beyond the first sale depending on whether the product in question was produced oversears, it could easily do so by amending the Copyright Act. Until then, it seems the best way to keep cool local thrift shops (and others) from getting sued and put out of business by major book publishers (or others) for selling used books (or other copyrighted items) manufactured overseas is for the Supreme Court to reverse the Second Circuit.

Aereo’s service — a public performance?
By Ryan Long

Aereo’s service — a public performance?

Recently, in American Broadcasting Companies, Inc., et. al., v. Aereo, Inc., the Southern District of New York denied the plaintiff’s motion to immediately stop Aereo, Inc. (“Aereo”), from retransmitting television programming, like NBC’s Saturday Night Live, to its users. While the Court took great pains to justify its conclusion that Aereo was not publicly performing, or “transmitting,” plaintiff’s copyrighted works within the meaning of the Copyright Act, its reasoning is likely flawed.

The best place to begin is the Copyright Act’s definition of “public performance.” Section 101 of the Act gives a copyright holder a government condoned monopoly to “perform or display a work ‘publicly,'” which means to “transmit or otherwise communicate a performance or display of the work to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or different times.”

In its decision denying the plaintiff’s motion for preliminary injunction, the District Court found that Aereo’s method of distribution is similar to Cablevision’s Remote Storage DVR (“RS-DVR”) device. In Cartoon Network LP, v. CSC Holdings, Inc., 546 F.3d 1212 (2d Cir. 2008) (“Cablevision“), the Second Circuit Court of Appeals held that the RS-DVR device did not publicly perform copyrighted works. As the reader may know, the RS-DVR device allows users to save their favorite programming for viewing at another time. If I am not home when Saturday Night Live is on, I can set my RS-DVR to record the program, in whole or in part, so that I can watch the program later on. And so the RS-DVR is similar to the Betamax recording device — which is like a VCR that allows you to record programs — that was upheld as a “fair use” of copyrighted materials in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

But unlike the RS-DVR in Cablevision or the Betamax in Sony Corp., Aereo’s system not only allows the user the option of recording a program on its system for later viewing. It also permits the viewer to watch Saturday Night Live contemporaneously with its distribution from NBC. Because Aereo’s system doesn’t only permit their viewers to time shift their viewing of Saturday Night Live, but acts as a substitute for viewing the program live on NBC, its method of distribution looks, talks, and acts like a public performance.

What is good for the goose is good for the gander.
By Ryan Long

What is good for the goose is good for the gander.

Banksy and other graffiti artists are gaining increased commercial acceptance in the traditional art world. The Los Angeles Museum of Contemporary Art recently had an exhibition called Art in the Streets featuring artists such as Banksy and others. But whether such artists’ works are protected by the Copyright Act, among other legal doctrines, is unclear. There is paltry case law on point.  We recently found this out when researching the issue for a somewhat famous — or some might say infamous — New York graffiti legend.

The Copyright Act generally protects creative works fixed in a tangible medium. Song lyrics are a good example. When Bob Dylan writes his song, All Along The Watch Tower, on a piece a paper, he can register the song with the Copyright Office. Only then can Mr. Dylan can than pursue others for using the song unlawfully. Many federal courts require a work to be so registered before suit can be brought by the artist for damages, attorney’s fees, and statutory damages.

But what about creative works that are fixed by graffiti artists all around New York City’s walls and subways? Assume Banksy paints the picture above on a Fifth Avenue wall. Could he then go and register the work with the Copyright Office, just as Mr. Dylan did with his song? Even if he can’t, does that mean Bansky has no legal protection? The questions are simple. But the answers are not so clear.

There are no cases directly on point. There is one case from the Northern District of Illinois, entitled Villa v. Pearson Education, Inc., in which the court denied the defendant’s motion to dismiss the graffiti artist’s copyright infringement claim because there was an issue of fact whether his art was illegal. There is also another case pending overseas between graffiti artist CanTwo and the Spanish Olympic Committee, reports the Wall Street Journal in CanTwo Says “Can Not!” to Spanish Swimmers. But that case is not yet decided and it involved apparently legal graffiti.

While this uncertainty is troubling, a graffiti artist should nonetheless be able to argue that a gallery is unjustly enriched when they sell a photo of his work but don’t pay him even if he does not have a copyright claim. That’s because what is good for the goose is good for the gander. If a gallery is going to commodify the artist’s graffiti efforts in a secondary market, it will be hard pressed to argue that the artist has no rights in the primary market because the work was illegal.

What would Jimmy do?
By Ryan Long

What would Jimmy do?

In 1994, Congress extended copyright protection to foreign works of art that were not previously protected by the Copyright Act. You say: “so what?” Well, in so doing, Congress made it so that you have to pay to use certain works, such as “If I Had My Way,” which were previously in the public domain. The debate has made its way to the U.S. Supreme Court, where arguments were heard last week in Golan v. Holder on whether Congress has such power under the Constitution. Congress likely has such power, and there are good reasons why Congress would expand copyright protections to such works.

The legal issue before the Court in Golan is whether Congress has the power to grant copyright for the very first time to works that were not previously copyrighted at all. The plaintiffs in the case argue that if the works were not protected by copyright at the time, they cannot now be retroactively subject to copyright by Congress under the Constitution.

Congress has broad power under the Constitution to “promote the Progress of Science and useful Aerts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” As such, Congress does not have unfettered right to bestow copyright protection for however long it wants. In the plaintiff’s view, the 1994 law extends the term of copyright, which is the life of the author plus 70 years for works created on or after January 1, 1978, beyond that currently allowed.

However, there are good reasons why the passage of the 1994 law “promotes the Progress of Science and useful Arts” by extended the protective shroud of — and not the term of protection under — the Copyright Act. Under the Berne Convention, American artists get reciprocal protection for their works overseas provided their foreign artist colleagues are protected here, too. As Solicitor General Donald Verilli is quoted in Copyright Law Challenged, the 1994 law amounted to “the price of admission to the international system.”

It seems that, if Mr. Jimmy Hendrix were alive, we would likely have been in favor of the 1994 law. (Justice Roberts referred to Mr. Hendrix in oral argument.) An avid traveler to places like Essaouira, Morocco, Mr. Hendrix would have wanted his works to be protected overseas, even if that meant his foreign compatriot’s works would be provided protection here, too.