Some might say that there is neither rhyme nor reason to the rule of plagiarism when the great Bard himself (whether he be William Shakespeare, Edward de Vere, or some other creature) was among the most liberal of “borrowers” of his time, prone even in the late 1500s to call upon heaven to turn a blind eye to the plotlines and dialogue he took from Italian drama and refashioned into elegiac English pentameter. The gods favored Shakespeare for his genius, just as we favor our own homegrown talents. Even after all these long centuries, love is still blind to the transgressions of those we hold dear.

The question of plagiarism is not nearly as much of a wild goose chase as it was in what some refer to as the Golden Ages of literature. Though those may have been better days (just as we may have seen better days), nowadays we can parse a script for plagiarism with the push of a button, and publishers, universities, scholars and even high schools have now invested in software that vets essays for misappropriations from Wikipedia and the ubiquitous internet. There is even software that catches paraphrasing of plagiarized text, so rewriting passages by changing tense or the names of characters, or slightly modifying the dialogue from a scene will almost invariably be found out sooner or later.

But is this demand for wholly “new” material really too much of a good thing? Artists have always been influenced by what they read and saw, and style and phrasing, plot and dialogue are absorbed almost by osmosis, so the occasional similarity or recreation of a long-forgotten passage is not always conscious plagiarism. And where it is a conscious appropriation, there is nothing necessarily inappropriate in having copied the material.

For example, my recent post, Plagiarizing Shakespeare, takes individual lines from Othello, The Tempest, Merry Wives of Windsor, Cymbeline, The Merchant of Venice, Hamlet, Comedy of Errors, As You Like It, Timon of Athens, and Romeo and Juliet, and rearranges them to do something entirely different with the language. I am not writing a play, or fashioning a poem, but reusing language from 500 years ago to make something new, weaving in transitional phrases and other original content, capping it off with a misquoted line from George Meredith, and creating a pastiche that is something entirely new.

Would this be deemed fair use under a modern copyright analysis? I would argue strongly that it is, for copyright protects the exact phrasing of the work, not a snippet here and a snippet there snatched from random texts and rearranged to suit their new creator. An enterprising artist could create an entirely new play using lines lifted from 100 other plays, and the work would be new, original, his – not copyright infringement.

In this modern day and age of litigiousness we fear to borrow, since our idea of what is fair will not necessarily jibe with that of the copyright holder, or with that of any judge deciding the issue of infringement. But given our penchant for sacrificing the old in favor of the new – indeed, what some would say is a preoccupation with newness at the expense of almost anything else, including virtue – it is unsurprising that some dare to fly where others fear to tread. The re-mixers, samplers, mash-up artists and liberal borrowers are not only a force to be reckoned with but also a force for good. For there can be no doubt that we lose beautiful language, apt turns of phrase and broad flights of fancy if we are obliged to leave them untouched in dusty library tomes, where they will die unseen by a generation that demands that its content be hot off the press, fresh, newborn like Adam on the first day of creation.

Truth be told, borrowing is an essential part of the creative process, transforming the old into the new, making matter out of dust, gold from glitter, a silk purse out of a sow’s ear. We would do well to remember that appropriation is neither misappropriation nor misattribution, but sometime simply just another form of genius.

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Since I received command to do this business I have not slept one wink. If you asked it of me, I could a tale unfold, whose lightest word would harrow up thy soul, freeze thy blood, make thy two eyes, like stars, start from their spheres, thy knotted and combined locks to part and each particular hair to stand on end, like quills upon the fretful porcupine.

At thy instance I ran from pillar to post, crossed channel and ocean wide, and was none the wiser for my travails. Was there ever any man thus beaten out of season, when in the why and the wherefore is neither rhyme nor reason? But love is blind and lovers cannot see the pretty follies that themselves commit. Yes, for a score of kingdoms you could wrangle, and I would call it fair play.

Can one desire too much of a good thing? I would see thee again, though we have seen better days. Put out thy hands, and light me a beacon for home. Send me a sign to come, and not one word more. I cannot bear this parting, so rich in sorrow, so protracted, so delicate, so poor.

The bell hath struck twelve; the minute draws on. Now, hot blooded Gods assist me! I yearn for the haven of thy heart. If thy wits run the wild goose chase, I am done, but thou hast more wits than I, and can see this through to its foregone conclusion. Though it be but a dream, remember in our shipwrecked days there was an hour when eve was left to us, and hushed we sat as lovers to whom time whispered.

Call me home, my lady, that we two can be as one.

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Copyright secured by Digiprove © 2012 Robert Scott Lawrence

It did not.

It was merely your standard, cookie-cutter, off-the-shelf WordPress theme with no modifications or alterations, no unique HTML code and no embedded processes. The site did not even contain original photographs, since the web designer he had hired contented himself with stock photos purchased from Getty. While they were nice photographs, and the site itself was attractive, there was nothing about it that would cause a lawyer to make haste for the patent office.

After looking at his site, I told my friend I did not see a basis for a patent application, so he switched gears and asked if I could trademark the website, or copyright it. While both of these options are possible – and, in fact, trademarking a URL has historically been fairly common – of late the PTO has been turning away dot-com trademark applications like unwanted junk mail. And although copyrighting the content of a static website is technically feasible – all one has to do is send off a copy of the text with a check to the copyright office – as a practical matter it does not serve much purpose. Under prevailing U.S. law whatever you write and publish to the web is automatically protected by copyright, and formally registering that material with the government merely gives you the right to sue any subsequent infringer for statutory damages. While that may be enough to justify registration for some folks, usually it is just a waste of $35.

The one exception to this would be if you created a website using a new language (e.g.,YOU-NIX). However, unless there is something special about the code which you fear will give rise to copycats or make it attractive to the BitTorrent crowd, there is very little likelihood that your source code is going to wind up being sold at underground swap meets. If it does make its way into the public domain, then you can still register your copyright and sue for infringement. The after-filed registration merely limits your available remedies, and forces you to prove the factual issue of when the material was created. When I explained all of this to my friend, he shook his head and muttered something about the opacity of the law. Then he started telling me about a great investment called derivatives. Ten minutes into his convoluted explanation about subordinated notes, second tranches, and slicing-and-dicing sub-prime mortgages I gave up and mentally departed the scene. Even if it does have a few flaws and inconsistencies (e.g., the FACE trademark), intellectual property is still far more logical than investment banking.

The only derivative I want to concern myself with is “derivative use.” The analysis may be obscure, or obtuse — it may even be opaque — but unlike financial derivatives the theory behind it remains constant. And you can take that to the bank.

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Copyright secured by Digiprove © 2011 Robert Scott Lawrence

A number of reports quote the complaint as alleging that Grooveshark’s executive officers not only directed the illegal uploading, but participated in the wrongdoing themselves, going so far as to claim that CEO Samuel Tarantino personally uploaded at least 1,791 copyrighted songs to the Grooveshark system, Senior Vice President Paul Geller uploaded 3,453 copyrighted songs to the system, and Vice President Benjamin Westermann-Clark uploaded more than 4,600 illegal tracks. Although, as a general rule, I tend be skeptical about allegations of pervasive wrongdoing in the upper echelons of a company when they are casually bruited about without any accompanying proof, the allegations – if true – do not bode well for Grooveshark’s future. The company has been plagued by similar litigation in the past, which resulted in settlements and licensing agreements with Capitol and Virgin Records (among others), but in recent days the attacks have come with a relentlessness that bodes ill for Grooveshark. Among other setbacks, earlier in the week the anti-piracy group RettighedsAlliancen (renowned for taking on Pirate Bay) exhorted the Danish courts to have the country’s Internet service providers block Grooveshark in Denmark. While Grooveshark has managed to weather such storms in the past, the efforts now being brought to bear against the company may presage its doom.

Stay tuned for further news and updates.

Update 11/23/2011:   Click here for a copy of the just-released Universal v. Grooveshark Complaint. Click  here to see the Exhibits to the Universal v. Grooveshark Complaint.

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Copyright secured by Digiprove © 2011 Robert Scott Lawrence

I’ll be the first to admit that I’ve fallen down on the job. In strict counterpoint to Future Tom and his almost mythological daily posting, my production has withered as my workload has increased. The new move, the new job, the new commute, the new hairstyle — they all conspired to throw me off my game. Instead of posting jocular commentary about the insanity of the virtual world and the plebeian nearsightedness of the PTO, I have been applying myself at work, Hemingway-style, engaged in industry, high finance, and the tedium of document review. My lighthearted moments appear at increasingly longer ends of the sine wave, and tend to strike me unawares about 11:00 at night, when I climb into my IP-laden Tesla roadster and silently zip home on the toll roads to the Elysian hunting camp in which I now reside.

I post here in an almost-but-not-quite embarrassed fashion to explain to you that with respect to my blog — just as with my languishing marathon training — I have adopted a new resolve. I vow to post more frequently and regain the vigor of my misspent youth. If you thought I was amusing before, prepare yourself for an entirely new level of amusement, Rabelaisian in scope, Machiavellian in design, Neapolitan in choice of pastry.

And when, you ask, will this  new romance commence?

Soon. Very soon.  Perhaps as soon as the day after yesterday.

If you misplaced or forgot to bookmark my URL, please subscribe to my feed now. For those of you who hate to subscribe to things but still have sufficient neurological juice left in your big big brains to remember short phrases,  just open up your browser and type “Who Is Your Lawyer” in one of its myriad forms (e.g., Who Is Your Lawyer, whoisyourlawyer, whois your lawyer, whoisyour lawyer, or even “who’s your lawyer” or “whos your lawyer“). Eventually, you will find your way to my site, as all variations of Who Is Your Lawyer? lead to me.

Be forewarned that on occasion these latter variations of my name will attempt to waylay the distractible reader with intriguing articles about the now-defunct series Rex Is Not Your Lawyer. As much as I hate to say it, that is not my series nor my site, as I am not David Tennant  (however much I appreciate his work in Dr. Who).

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However, he neglected to vet one thing no one thought would be an issue:  the cover art.

After unsuccessfully attempting to create a tribute cover on his own, Baio had a friend do a pixel art recreation of the original album cover, a sort of hip rendition of the originally hip (and now iconoclastic) photograph by New York photographer Jay Maisel. If you are a fan of Miles Davis and are of an age to remember when there were such things as albums, undoubtedly the album cover will ring a bell.

Shortly after the tribute album was released, Baio was contacted by Maisel’s lawyers, who asserted that the pixelated cover  infringed on Maisel’s copyright. They sought statutory damages of up to $150,000 for each infringement, plus attorneys fees, or in the alternative actual damages and all profits attributed to the unlicensed use of the photograph. Rather than contest the issue, after several months of negotiation the parties reached a superficially amicable settlement whereby Baio agreed to pay Maisel $32,500 and voluntarily agreed to stop using the pixelated artwork.  As is typical, the settlement agreement contains the standard recitation that neither party admits fault, and thus the question of whether the pixelated tribute cover is “fair use” was never addressed nor decided.

Though one can understand why Baio would settle in the face of enormous potential damages and the certainty of significant legal fees, the settlement itself fails to bring any clarity to a debate that’s been played out in various iterations for years between artists and copyright holders, and leaves artists involved in digital reinterpretations of copyrighted works in a state of perpetual anxiety. Is Baio’s pixelated art “fair use” under the copyright laws, or infringement?

Unfortunately, there is no straightforward answer to this question. While there is an abundance of information (perhaps an overabundance) about the doctrine of “fair use” on the internet and in legal treatises, the concept itself has created significant disagreement amongst judges and scholars, who have been unable to agree on a clear definition of the term. The doctrine itself is intrinsically ambiguous and continually reinterpreted by new caselaw.

In determining whether an artist’s rendition of an existing work constitutes “fair use,” the court considers four main factors:

(a) The purpose and character of the use:   Was the original work transformed into something new or was it copied in its entirety?
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion taken;
(d) The effect of the use upon the potential market for the original work.

The core of the disagreement between Baio and Maisel turned on the first factor — whether the Kind of Bloop cover art was “transformative” or not.  Baio took the position that it was transformative, and Maisel took the position that it was derivative in such a way that infringed on his continuing rights in the photograph. Stanford’s Fair Use Center poses the question the artist must ask himself in this way:   “Has the material you have taken from the original work been transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights and understandings?” Arguably, Baio’s tribute to Kind of Blue satisfied the test of transformative use both from an objective and subjective point of view. As Baio himself has said:

Kind of Bloop was a creative experiment. I was drawn to the contradiction between the textured, subdued emotion in Kind of Blue and the cold, mechanical tones of retro videogame music. The challenge was to see whether chiptune artists could create something highly improvisational, warm, and beautiful from the limited palette of 1980s game consoles.

Similarly, the purpose of the album art was to engage both artist and viewer in the same exercise — can NES-style pixel art capture the artistic essence of the original album cover, with a fraction of the resolution and color depth of an analog photograph?

It reinforced the artistic themes of the project, to convey the feel of an entire album reimagined through an 8-bit lens. Far from being a copy, the cover art comments on it and uses the photo in new ways to send a new message.

Taking art from one medium and repurposing it in another is a seminal type of transformative “fair use.” Biao’s use of Maisel’s photograph arguably was transformative in the same way that Jeff Koons’ use of a photo of Gucci sandals in his painting Niagara was found to add “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” In Koons’ case, he digitally scanned the photo and incorporated it into his painting Niagara as one of four pairs of legs depicted. He used only the legs — discarding the background of the airplane cabin and the man’s lap on which the legs rested. He also inverted the orientation of the legs so that they dangled vertically downward rather than slanting upward at a 45-degree angle as they appear in the photograph. He added a heel to one of the feet, and modified the colors. The Second Circuit Court of Appeals found that the alterations to the original fashion photograph were significant enough to constitute transformative — and thus “fair” — use. In Baio’s case, the argument put forward is that the rendition of the cover art in pixelated form is a distinct medium, and that the transformation from photograph to pixelation is inherently transformative.

The second fair use factor is the nature of the copyrighted work. Works that are factual tend to be deemed fair use (e.g., publishing a photograph in the context of criticism is fair use); works that are creative in a way that impinges on an author’s derivative rights (e.g., writing an unauthorized sequel to The Catcher in the Rye) tend to be deemed infringing. Maisel’s photograph is creative, but also documentary in nature. Baio’s argument was that the pixelated cover art was a sort of homage to the original that evoked it without treading on Maisel’s intellectual property rights.

With regard to the third factor, although the illustration does represent the cover of Kind of Blue, it does so at a dramatically reduced resolution that incorporates few of the photograph’s protectable elements. While courts routinely find fair use even where the entirety of an image is used if the transformation is significant, this is the most troubling aspect of Baio’s argument, as the pixelated version uses the same composition and colors, as well as other identifiable aspects of Maisel’s photograph. The reduction in resolution is not so dramatic as to render the subject unrecognizable, and thus is problematic. If it had been further reduced by several factors so that it resembled not so much pointillism as modern art (e.g. a colorful blob), Baio would have been on stronger footing.

The fourth factor analyzes the impact of the alleged copycat product on the value of the original work. In Baio’s case, it is fairly obvious that the cover art for the tribute album does not impinge on the market for the original work. It is merely a low-resolution artistic rendering in 8-bit computer graphics that, if anything, engenders interest in the original and reminds the public of its existence. To the extent there is an afermarket for the photograph, it is difficult to conceive of how the pixelated cover art could meaningfully affect sales. Maisel’s argument that his sales could be affected are simply spurious — akin to the argument that the Lego Star Wars animations somehow lessen interest in Star Wars and detrimentally affect DVD sales.

As a practical matter, of course, the analysis of whether the “transformative” use of someone else’s work is “fair” is in many cases besides the point. If you take your inspiration from any copyrighted material, even if it seems clear to you that your use is transformational, you run the risk of having a copyright infringement suit filed against you. If your proposed use is commercial (and thus potentially objectionable), you would be well-advised to seek permission from the original owner of the work or stand ready to defend yourself in court. You would also be well-advised to have your lawyers vet your proposed project before it sees the light of day.  In light of the vague standards governing the fair use doctrine and conflicting opinions as to its application, anyone attempting to reference copyrighted works as part of their own art would be well-advised to consider the possible consequences of their actions before publication.

After publication, your arguments are likely to fall on deaf ears.

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Copyright secured by Digiprove © 2011 Robert Scott Lawrence

By now you have probably heard the news. Weird Al Yankovic came out with a splendiferous parody of Lady Gaga — a pastiche of all the sexually enhanced, meat-spattered, dorkified lyrics that lie at the heart of a Lady Gaga song. From mandatory face painting to the occasional wardrobe mishap, Weird Al uses his uncanny powers to mock-glorify the celebrity of the moment. As he croons “Roberto, allegro, ventana, tobacco . . . .” so inartfully, one almost overlooks the fact that the seminal honor of being publicly mocked by Weird Al means that Lady Gaga is not just a passing fad, but an enduring cultural icon. If she had any fear of being a passing fancy or a figment of someone’s imagination, she can now rest easy. Her place on the wall of shame is carved in stone.

When I heard the news on CBS, I was overjoyed to see that Weird Al was not in fact dead — as someone told me last week — but was alive and kicking and up to his old tricks. I will admit, of course, that it is somewhat shocking to see Weird Al touch down from Mars for another brief visit (as is his wont), and for a moment the idea that he had passed away like Fat Albert or Alias Smith & Jones or some other icon of the past made perfect sense to me. When faced with the irrefutable evidence of his existence, however, I quickly came to my senses and embraced his strange sensibility once again. To me, Weird Al embodies all that is right with the idea of parody. You may not like what he does, you may think him a trifle mean-spirited, but to that I say “Fooey!” Or, as my kids used to say: “Boo! Your face!” I’m not really sure what that means, but it sounds cool.

To me, Weird Al is the Sly and the Family Stone of parody. He’s old school, iconoclastic, incomparably funky — like Ben n’ Jerry’s Chunky Monkey — and basically sui generis. The new kids would want to be him if they knew who he was, but he only pops up on the radar screen according to his own rhythm and rhyme, and where he goes nobody knows. The new kids — even the brilliant crew over at Jacksfilms — can’t copy him, because no can predict what will come out of his head next. One day he shows up in tights mocking Lady Gaga, and the next minute he suits up for a Tiffany’s advertisement slyly touting a ring engraved “Eternity is forever.”

Lady Gaga’s crew — which I suppose at this point consists of several law firms, publicists, marketing gurus, and sundry hangers on — couldn’t make heads or tails of Weird Al’s parody. First they told Weird Al he couldn’t release it because it infringed on Lady Gaga’s copyright in some way, then they acceded to the inevitable when it became clear that there was no plausible argument that any intellectual property laws could stop Weird Al’s parody from airing. I’m sure Gaga’s lawyer went through a good five minutes of internal dialogue which ran the gamut from “Oh, cr*p! can we stop this?!?” to “Maybe we can threaten him?” to “Can we buy him off?” and then eventually (with a bit of input from someone intelligent) landed on “Hey, this actually might be really good publicity for Lady G. Free publicity.”

Deciding not to duke it out with Weird Al was ultimately a smart move. Anyone with half a brain would have immediately concluded that it was unstoppable, and it is fair to presume that Lady Gaga’s posturing about her rights was merely an act to buy time while the marketing machine considered the best way to spin this to the media. Considering how prescient he usually is, I’m surprised Weird Al didn’t call the video “Can’t Touch This!”

Though I suppose “Free Publicity” would have worked just as well.

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Copyright secured by Digiprove © 2011 Robert Scott Lawrence