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Parodies… Gangnam Style!
It’s fun to look at publications and see their commentaries on legal issues, particularly when they involve pop cultural phenomena. Often times they completely miss the mark. Other times they hit the nail on the head. Last week, Forbes.com published a funny article on parody videos of the strange yet fascinating appearance of Gangnam Style by Korean pop signer Psy, and got the legal issues right. For those who have no idea what I am talking about, here’s the video.
I can’t explain it either, but as a slightly overweight, Asian, 30-something male, I appreciate that I am finally cool with the hipsters. The Forbes article goes into detail on the legal definition of parody, which allows individuals to essentially “get away with” making a “Gangnam Style” video, without getting in trouble. From Forbes.com
Creating a new work based on someone else’s prior work (called a “derivative work”) is another example of an infringement that copyright law protects against. Many songwriters have been sued for “sampling” other writers’ music (incorporating parts of other writers’ songs into their works). Contrary to a widely circulated rule of thumb, even using as few as four notes from another song can be an infringement.
So how is it that the hundreds of Gangnam Style remake creators have not gotten into trouble?
Many of these remakes may qualify as parodies, which are generally protected under the copyright law’s “fair use” doctrine….
Thanks to another rapper two decades ago, parodies are generally considered to be a form of fair use. In 1989, rap group 2 Live Crew recorded the song “Pretty Woman,” a parody of singer Roy Orbison’s earlier rock ballad “Oh, Pretty Woman.” The publisher of Orbison’s song sued for infringement and took the case up to the U.S. Supreme Court.
As Justice David Souter described it in the Supreme Court case Campbell v. Acuff-Rose Music, Inc., 2 Live Crew’s version juxtaposed “the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility,” serving as a commentary “on the naivete of the original of an earlier day.” After carefully analyzing each factor in the four-factor fair use test, the Court decided that 2 Live Crew’s parody of Orbison’s song was fair use. Key to the Court’s decision was that 2 Live Crew transformed Orbison’s song into something new that ridiculed the original.
It is important to note that when it comes to music videos, the video portion and the music portion have separate copyright issues, so if a video is to be truly considered a parody, they need to parody both. Here are some popular videos to show the difference.
PARODY
NOT PARODY
So as you can see, not only do the “not parody” videos fall outside of “fair use”, they are also are not nearly as funny. I greatly respect the future officers of the United States Navy, but does that video do anything to dispel the 200+ year old stereotype of American seagoing servicemen? Oh, by they way, did Vanilla Ice really think that revisiting “Go Ninja Go”, the “sell out” which killed his career, would somehow boost his public image? Fortunately for them, Psy doesn’t seem interested in litigating copyright issues on parody attempts.
Question: Something I posted on Scribd was removed, am I liable?
I know I have not been writing much lately. I have actually been busy doing things like, oh… practicing law. I did get this question the other day, which I think is worth writing about
Dear Ask a Cyber Lawyer,
I posted a service manual for an old Honda lawnmower (around 1983) I own on scribd; it was my first upload there. A few weeks later I received an email from scribd indicating it had been removed at someone’s request. A little digging found it was some law firm. I had in fact poked around scribd looking for similar material (i.e. service manuals for mowers, tractors, etc) before posting. There are plenty of similar manuals with copyright notices on their pages so I figured it was OK.Will it most likely end here or am I going to get sued by someone now?
Will it end there? Most likely. As long as you weren’t making any profit from the posting, and as long as Honda was not losing money because of the posting, there is not much financially they can go after you for. It would definitely cost Honda more to go after you for liability then they would ever receive in return. So this will probably end here, and you won’t get sued. Now, if you decided to put the entire Harry Potter collection on Scribd, that would be a different story.
Annoying Facebook Meme and Copyright
You know that annoying internet meme where a headline states the name of a profession or philosophy, and then six pictures explain what different people think of that? Well, most likely the poster violated some sort of copyright. See example to the right describing my somewhat dubious profession? By posting it, I probably violated somebody’s copyright. I know for sure I have violated Marvel Comics corporate copyright, and most likely Stan Lee’s personal copyright (probably Paramount Picture’s distribution rights as well). If I get a takedown notice, I will go ahead and remove the picture, mostly because I don’t want to bother with the hassle of dealing with a DMCA issue.
Did you know that you too violated someone’s copyright if you posted any example of this particularly annoying internet meme?
Ok, so what happens if someone decides to sue based on copyright infringement? Well as almost everything is concerned, it depends on a number of factors. Is the copyright registered? Does the infringing image contain the substantive amount of the original work? Are there any defenses?
First lets take a look at the registration issue. If the image is registered with the copyright office, the infringer could be in a whole lot of trouble. If the owner is able to show registration, then the infringer is not only liable for actual damages (ie-economic loss of the owner, plus the economic gain derived by the infringer), but they are also able to recover statutory damages and attorney’s fees, substantially more than mere chump change. Also it is possible to have a judgment placed on all of these damages even before final judgement is rendered. If the image is not registered, then the owner may collect actual damages, which in the case of a work like this meme, does not amount to much. They probably did not have an economic loss, and it is unlikely that the “creator” of the meme gained any economic value.
Second, take a look at the infringing part, as compared to the whole piece. For example, that image of Captain America (Copyright Stan Lee, Marvel Comics, and Marvel Films, etc. etc. etc.), is only a part of the entire image which was used as a poster. It is the focal point, but the fact that a fraction of the poster was used means that the image may fall under the defense of “fair use”.
Lastly, the image as a whole could be considered a derivative work. What is a derivative work? Take a look at this picture. 
This is the famous painting my Marcel Duchamp L.H.O.O.Q. (au Francais transliteration “Elle a chaud au cul” or in English “She has a hot ass” in colloquial American English “Baby got back!”). In the United States this image is in the public domain because it was created before 1923 outside of the United States under the old US Copyright regime, in France it is still copyrighted until 2039, 79 years after Duchamp’s death. Let’s be real for a second. It’s the DaVinci’s Mona Lisa with a moustache. If the Mona Lisa was still copyrighted could DaVinci have a claim against DuChamp? Yes he could because let’s be honest again, it is the Mona Lisa with a moustache. Is there a defense? Yes, it is a derivative work. First, Duchamp did not use the entire work, second, he modified the work to where it could be seen as a separate and copyrightable work, therefor, he could raise the defense that it was a derived work from the original copyright.
Same analysis could get an infringer off the hook for violating, say Marvel’s copyright. When taking a look as a whole, it could be argued that the new work is a different work which could sustain its own copyright.
That said, Marvel has deep pockets, and if I get a DMCA takedown request, I am taking it down.
Copyrighted Images and Pinterest
I am a heterosexual male. I have pretty much no interest in Pinterest save one. I am married and my wife uses Pinterest. It has come in handy to figure out birthday, Christmas, Valentine’s Day, Sweetest Day, and oops I majorly f*cked up day presents. So, I have a somewhat vested interest in making sure it sticks around.
Pinterest is a website which people post images of items they are interested in, sort of a virtual cork board for nerds. Since women are more likely to post goals on an old fashion white board, they are more likely to be engaged in Pinterest.
In a nutshell, every image posted on the internet is the intellectual property of someone (unless they are in the public domain… but that is a different topic for a different post). One would figure that there would be a problem with posting copyrighted images on a website, without notice or proper attribution. (Note- Tumblr WILL have this problem in the future… again another topic for a different post).
Now it seems that Pinterest is attempting to prevent copyright violations. PC magazine is reporting that Pinterest is adding a widget which can be added to a websites code, if the owner does not want to have their site or images posted on Pinterest. From PC Mag:
Website owners can add a snippet of code that will disable the Pinterest “Pin it” button found near the Facebook “Like” and Twitter “tweet” buttons.
In a Monday blog post, Ben Silbermann, Pinterest co-founder, said “we care about respecting the rights of copyright holders,” and insisted that the company works hard “to follow the [Digital Millennium Copyright Act] DMCA procedure for acting quickly when we receive notices of claimed copyright infringement.”
We all know about the DMCA, the shoot first, ask questions later law which requires sites to remove material at the mere allegation of a copyright violation. But the fact of the matter is, Pinterest drives a lot of business to a lot of sites, so how would it make sense for a business to try to prevent people from posting on Pinterest? It’s free advertising!
PS- Feel free to post this blog to your Pinterest!
See also: Why Pinterest isn’t just for girls on The Guardian.
Question: Copyright Infringement as applied to Cyber Law?
A college buddy of mine, who is now a Scientist/Mathematician out in California, asked me this question:
I’m curious how liability is transmitted through software licenses. Suppose that A writes some code and submits under a two-clause BSD license. (For the benefit of other readers, that means the author gives users permission to do whatever they want with the code, and disclaims all responsibility for whatever happens when running the code.) Then B makes a derivative work from A’s code and releases it under modified BSD, and C does the same with B’s code. Now suppose that A’s original code release was itself a derivative work of software under a restrictive license not compatible with the modified BSD release. Clearly A was negligent. What about B or C?
With regards to cyber law, while most of the particulars have not been worked out, the general principals still apply. This is true especially with intellectual property issues and negligence. In this case, even though B and C did not know of, or were party to the infringement, by the mere fact that the original owners intellectual property rights were violated by the actions of B and C would make them liable. A’s negligence does not absolve B and C from the effects of A’s negligence in that they too have violated the original programmer’s intellectual property rights. However and this is important, B and C may not have to pay any damages. When it comes to determining fault, the court will weigh how much fault should be applied to B and C, and the affect A’s actions have on the culpability of B and C. Most likely, the overwhelming negligence of A would preclude the original owner from getting damages from B and C.
Disclaimer: It is difficult to dispense comprehensive legal advice on the internet. If you find the information on this site interesting and insightful, great. But before you rely on any of this advice, please consult a legal professional with the specific details of your case or controversy.
Supreme Court Refuese to Hear ASCAP Appeal Over Downloading
Today, the Supreme Court refused to review a ruling by the United States Court of Appeals for the 2nd Circuit over the 
issue of whether or not legally downloading a music file is considered a “performance” for the purpose of copyright law. The Court of Appeals said “no”, and by refusing to hear the case (legal term: grant certiorari) the Supreme Court has let the previous ruling stand by default.
At stake were potentially hundreds of millions of royalties which would have been paid to composers if a digital download were to be considered a “performance”.
The suit was brought by the American Society of Composers, Authors and Publishers (ASCAP), a non-profit organization who’s primary purpose is to collect performance royalties for its roughly 400,000 members. They are the ones responsible for the scenario:
You’re at a restaurant, somebody is celebrating their 40th birthday. All of a sudden the wait staff comes out clapping and carrying a big cake covered with sparklers. You expect a rousing rendition of “Happy Birthday”, but instead, it is some drab awful sounding birthday cheer, chanted by a gaggle of overworked and underpaid waiters and waitresses, who would rather be at home playing Xbox. This scenario is brought to you by ASCAP. They own the copyright to “Happy Birthday” and will not allow the restaurant staff to sing it, without paying them a performance royalty.
Two years ago, the Court of Appeals ruled that downloads are not considered performances under the Copyright Act simply because nothing is played: “Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener”. Instead, it is considered a “reproduction” and would not be subject to performance royalties under the act.
The Supreme Court issued its ruling without comment. (ASCAP v. United States, No. 10-1337)
QUESTION: Three Questions on Illegal Downloading
A Reader from Colorado writes via email:
Dear Ask a Cyber Lawyer:
I have three questions on illegal downloading.
Q1: How do prosecutors prove illegally downloaded files are actually what their name says they are? For example, couldn’t BEATLESSONGNAME.MP3 be a garbage file? In which case no infringement occurred…
Q2: HOW do they know you downloaded? If they share to you, aren’t they also sharing?
Q3: If you only have part of a file, is it still illegal? If so, why?
Q1) Digital forensics rarely uses filenames as far as evidence is concerned aside of making it “human readable” for consumption by juries. If they have access to the file, they can simply play it. In file sharing cases, there is nothing preventing law enforcement or the RIAA (and friends) from accessing what you offer for download and playing it themselves.What is typical done with digital evidence is creating what is called a “cryptographic hash” of the file. This basically uses a complex mathematical formula to create a unique string of letters and numbers that shows the content of the file is unchanged. The mathematical formula is designed so that very small changes create very big differences in the hash value. Using this method, you can have a high-degree of confidence of what contents of a file (assuming you have a table) without having to worry about the filename. For instance, child pornography is usually archived by hash values by federal law enforcement and authorities can usually pinpoint a given picture to not only the victim, but the time and place of the assault.
Q2) The typical pattern of file sharing prosecutions or civil litigation is not to do “entrapment” (i.e. setting up a sharing site of their own and nailing everyone who downloads), but to find a hub of file sharing and see who is using it. This can be done a variety of ways from standard discovery or a wiretap order. If they have a wiretap order, they can simply see who connects to the fileshare, identify them, and go after them. If I worked for the RIAA (and I never will), wiretapping would be the primary tool I would use. (Under the provisions of the Patriot Act, a wiretap order is fairly easy to obtain)
Q3) That depends. It’s analogous to having “part” of a book. There is no bright-line between how much of a book you can use where fair-use becomes copyright infringement. I would imagine if you created 20-30 second cuts of a music file to distribute as ring tones (especially if you charged), then you could be liable for infringement. If you download a couple of random “blocks” of a music file that is unusable, I’m not sure that’s infringement. The two biggest things that get someone into trouble with copyright infringement is distribution and trying to “sell” content. If you aren’t doing one of those two things, you are “probably” ok. (I concur with this generally as a rule of thumb, that this would fall under fair use, just make sure that the clip is only a small portion of the entire song, especially if the track is short. The Beatles “Her Majesty” is only 23 seconds, so a 30 second clip would be the whole song and then some. This would not fall under fair use. However, no matter how long the song is, don’t use more than 30 seconds)
Disclaimer: It is difficult to dispense comprehensive legal advice on the internet. If you find the information on this site interesting and insightful, great. But before you rely on any of this advice, please consult a legal professional with the specific details of your case or controversy.
Reigning in the Wild West: ISP’s to Target Pirates
I was an undergrad student at Harper College and the University of Illinois in the late 90′s. Without admitting any wrong-doing, I was a big fan of Napster. Who wasn’t? By “networking” with “friends”, you could download any album you wanted via the filesharing network. Theoretically, you were doing nothing wrong. It was just copying and sharing, like making a mixtape for your girlfriend except, instead of your girlfriend it was some random dude in his mother’s basement, and instead of a mixtape, it may have been 5% of the new song by Green Day. Still, Free Music! It was great. We didn’t think of the consequences, like putting Tower Records out of business (My local Tower R
ecords was featured on the cover of the 1994 Toad the Wet Sprocket Album “Acoustic Dance Party. It closed in 2004 and is now an REI).
I sometimes yearn for those blissful times when we were free to do what we wanted with the internet. Ever since the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) have started to crack down on piracy, it is a lot less fun, and a lot more difficult to get free music and video. Now they have enlisted a new warrior in the fight against pirates, your ISP. As reported by CNET Comcast, AT&T and other large Internet Service Providers will now assist in tracking individuals who illegally download. Why was this dead struck? In theory, ISP’s were facilitating piracy by providing the means for individuals to illegally download music and videos. This leaves them open to liability for those actions. As a result they have been pressured to enter into this deal with the music and movie industry. Who is facilitating this? None other than the White House. From the CNET article:
In addition to the NCTA, the White House was also instrumental in encouraging the parties to reach an agreement, the sources confirmed. President Obama has said intellectual property is important to the country’s economy and has vowed to step up the fight against piracy and counterfeiting. His administration has lobbied Congress the past several years to pass new pro-copyright legislation while instructing federal law enforcement to make antipiracy a priority….
As a result of those efforts, it’s tough to deny that most of the momentum in the online copyright wars appears to be with content creators. In the past year, a federal court ruled that the top music file-sharing service LimeWire induced copyright infringed and ordered the network be shut down. In recent months, the U.S. Immigrations and Customs Enforcement (ICE) agency has seized domain names from dozens of sites accused of trafficking in pirated content or counterfeit goods. In the U.S. Senate, lawmakers are expected to pass legislation that would enable the government to block U.S. Internet users from accessing alleged pirates sites based overseas.
Embed a Copyrighted Video, Go Straight to Jail
Let me start off by saying, unless Senators Amy Klobuchar, and Christopher Coons want to ensure that the Democratic Party is labled the anti-net-freedom party, this bill will never get out of committee (Yes Republican John Cronyn is also a co-sponsor, but he’s such a luddite, he may think the internet is a series of tubes). In short, the bill attempts to reconcile existing civil and criminal copyright law to extend to embedding videos on Youtube and other sites, where individual views may be considered considered “performances”. From Tech Dirt:
Supporters of this bill claim that all it’s really doing is harmonizing US copyright law’s civil and criminal sections. After all, the rights afforded under copyright law in civil cases cover a list of rights: reproduce, distribute, prepare derivative works or perform the work. The rules for criminal infringement only cover reproducing and distributing — but not performing. So, supporters claim, all this does is “harmonize” copyright law and bring the criminal side into line with the civil side by adding “performance rights” to the list of things.
If only it were that simple. But, of course, it’s not. First of all, despite claims to the contrary, there’s a damn good reason why Congress did not include performance rights as a criminal/felony issue: because who would have thought that it would be a criminal act to perform a work without permission? It could be infringing, but that can be covered by a fine. When we suddenly criminalize a performance, that raises all sorts of questionable issues.
The penalties for infringement are very harsh, according to the article, 10 “performances” could land an individual 5 years in prison. The definition of “performance” is ambiguous, but it could mean that if you post a copyrighted video on youtube, and it gets 10 “views”, it may be enough to get 5 year term. You can view the full text of the bill here.
So You’ve Decided to Steal Netflix
The Tennessee legislature has just passed a bill criminalizing the use of another person’s login information to access services like Netflix, Rhapsody and Hulu. From “Digital Trends“
Once signed, if you are caught using an entertainment service that is not under your name, you could be heavily fined, charged with a misdemeanor and sent to jail, or charged with a felony, even if the password was given to you willingly. That’s right, a felony. While the legislation is mainly aimed at those who sell passwords in bulk, the bills sponsors admit that its language is so vague that it could be used to target small offenders like friends who share passwords or groups of kids in college dorm rooms.
The record of the legislative history of the bill draws comparison of using another person’s password to access a pay-for-service internet site to phenomenon of stealing cable. It reminds me of this Simpson’s episode from way back in season 1 of the show.
Yes this was posted on YouTube by Hulu.
Is it the government’s responsibility to monitor who accesses Netflix, or is it Netflix? Why should our tax dollars go into the type of enforcement that may be more effeciently done through commerce? Netflix already has a greater means of monitoring access than does government. When you login, Netflix keeps track of your ISP, your login time, what you watch, when you watch, where you watch it from, and how long you watch it. Government does not keep track of this, so if Netflix does, so Netflix should enforce its own rules. Government neither has the money nor the means to enforce these types of laws. More importantly, the vague language of the law can be used against those who make simple mistakes, like forgetting to take netflix of their Xbox when they change roomates.
James Skyles
