Tag: infringement

Fair use in the digital house of mirrors
By Ryan Long

Fair use in the digital house of mirrors

In today’s highly digitized world, copyright infringement actions, among others, are often brought against alleged infringers using information culled from Internet service provider addresses. While fair use defenses may exist against such suits, particularly when one is doing a music mash up, a preliminary question is whether the initial source evidence is accurate.

There exist technologies wherein users can mask themselves behind other users’ Internet service provider addresses. In this way, one can be located in Timbuktu, for example, and use an Internet service provider address of a user in the North Pole. By doing such masking, some users seek to avoid infringement lawsuits by using the address of another user, in essence leaving them with the hot infringement potato.

In prosecuting civil actions for unlawful downloads of Microsoft software, for example, it becomes imperative to understand such masking methods, and their limits. Prima facie evidence of the source of the infringement, while good for the initial stages of litigation, will evaporate upon further investigation. In some cases, a case brought without sufficient evidence of the source can, upon written documentary notice that the user wasn’t responsible for the download, such as via browser history evidence, lead to a motion for sanctions against plaintiff’s counsel for bringing a frivolous case.

Even with such evidence as to source, due attention needs to be paid to the transformative nature of the use. In digital music mash ups, for example, a sample from Mr. Bob Dylan recording can be modified, and blended into a new piece, so that the old version becomes impossible to recognize. In this case, the defendant likely has a bona fide fair use defense even when the attribution of the source is correct. Thus, in prosecuting a copyright infringement action, proper steps need to be made at the outset so that a sustainable case can be made.

Is your design inspired or stolen?
By Ryan Long

Is your design inspired or stolen?

Are you a crook? Jonathan Adler may consider you one when you use an edited, transformed, and artistically styled sample of his pillow design to create a custom-made wallpaper design for a client. But would he be right? These days, it is getting harder to tell, but there are still guidelines that can help you navigate the sometimes murky waters separating inspiration from infringement.

To make a custom-made wallpaper design for a client, assume you copy Mr. Adler’s black vine design that was inspired by an ancient Japanese kimono vine design, and that there are many types of this vine design in the pillow market. You then transform the vines by making them look shabby and worn out, use pink instead of black, and infuse the pink with the copies of the American flag. Imagine, then, that you combine the transformed Adler design with 9/10 other types of content from elsewhere, including a starry sky design pattern from Ralph Lauren Home to make your wallpaper.

Does your wallpaper infringe Mr. Adler’s copyright in the kimono vine inspired pillow design? Does it matter if you made up your own vine design that differed from Mr. Adler’s design, but which used his, among others, as inspiration?

The answer to these two questions depends on a number of factors. For the first question, given that you clearly copied Mr. Adler’s design, the question is whether the “fair use” defense would apply, part of which asks whether you sufficiently “transformed” Mr. Adler’s design to make it different enough from the original. The closer you get to a complete metamorphosis of Mr. Adler’s design – think the caterpillar becoming a butterfly – the safer you are. That’s because if your work and Mr. Adler’s are that different then people won’t think that Mr. Adler designed your pillow.

For the second question, you may not even need to get to the fair use defense. That only comes into play when you have actually copied another person’s expression. Because you merely used Mr. Adler’s expression of the Japanese vine design, among others in the marketplace, as inspiration to create your work, and your work differs from Mr. Adler’s, then there would in all likelihood be no infringement. That’s because copyright doesn’t protect the idea of the Japanese vine design, only Mr. Adler’s particular expression of it. Given that his expression isn’t original in the marketplace, it will most likely receive less protection than something truly off the wall – and original.

In the end, a completely original design is the best policy. That being said, designs are rarely completely original. The more your design exactly resembles another person’s work, the closer you are getting to the infringement line.

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.