PANEL PRESENTATION:
NEW PERSPECTIVES ON OWNERSHIP & COPYRIGHT
Friday, March 27, 1998, 3:15-4:30 p.m.

Presenters: AMY SCHWARZTMAN, Executive Director of the Volunteer Lawyers for the Arts (VLA), CARIN G. REYNOLDS, VLA and attorney, Patterson, Belknap, Webb & Tyler LLP, MARCI A. HAMILTON, VLA and Professor of Law at Benjamin N. Cardozo School of Law, GLORIA C. PHARES, Patterson, Belknap, Webb & Tyler LLP. By: Mimi Liu

Moderated by Amy Schwarztman, Executive Director of the Volunteer Lawyers for the Arts, the panel attempted to provide an overview and general analysis of issues of ownership and copyright for artists, educators, and community organizers. They suggested responses to problems, and symptomatic of technological development, didn’t always have the answers. Furthermore, although the tone is certainly set by the First Amendment, issues of policy were unable to be discussed. Gloria Phares and Carin Reynolds joined Marci Hamilton, Professor of Law and Director of the Intellectual Property Law Program at the Benjamin N. Cardozo School of Law at Yeshiva University, both attorneys at Patterson, Belknap, Webb & Tyler LLP.

Hamilton began with the basics: 1) What is protected? 2) What does copying mean? and 3) What are derivative works? Copyrighting protects original expression which is fixed in some way (can be held in computer memory, text, or visual art) or an item that possesses some modicum of originality. Copyright law does not protect an idea but its expression, e.g., the bare plot of a narrative is not protected, and the draft of a story is. Certain exceptions are protected by the Fair Use law. A work is copyrighted the moment the work is created. Copying does not mean simply the emulation of the entirety. Copying does not mean simply that the document is photocopied. Xeroxing a portion is copying. A substantial similarity can suggest that copying has taken place. There has been some confusion about “ephemeral copying”; the downloading of files onto a computer that is then erased when the computer shuts down. Derivative works are the incorporating of old into new work. The second artist absolutely needs permission from the first artist to maintain control of the entire process.

“Trademarks,” described by Carin Reynolds, “are words, symbols, or devices that define a company’s goods or services. E.g., IBM, color, coke bottle, the sound of Harley Davidson motorcycle.” Its genesis was to protect the public and trademark owners from the “likelihood of dilution”. Recently, however, at the federal level, the principle was applied to a condom company’s use of American Express’s trademark slogan, “Don’t Leave Home without it.” The likelihood of dilution can be applied to domain names, hyperlinking, framing, metatagging (sex and Microsoft are often hidden on Web pages to increase view- ability).

Phares suggests that judicial procedure can be translated to analogies in the low-tech world. Discussion began with two hypothetical situations posed by Phares. An artist sees McDonald’s golden arches. She gets on McDonald’s Website, downloads the .gif image onto her harddrive. Days later, she incorporates it into HTML code and posts the image onto Web for public consumption. What happens? Both issues of copyright and trademarks are coming strongly into play. Distribution is one of the bundles of rights that the copyright holder owns. A copyright cannot be editorially waived. It is fair use if it is parody for political comment.

The second example is of an artist who wants to make a fun and engaging site for children. To do this she uses Disney’s Mickey Mouse as the tour leader and establishes a link to David MacAulay’s Website, detailing can openers, zippers, and toasters. Unfortunately he has an advertisement from Houghton Mifflin (his publisher) that she wants to replace with an announcement of the opening of a University Studio movie. Finally, she decides to use a Raffi song as the kids surf the links on her site. Forget Mickey Mouse. The trademark of company is good forever; there is no public domain safety net. In regards to the link to MacAuley’s Website, she should be beware of the risk of false association. She could minimize risk and fees paid if she links in a way that makes it clear whose content it is. Her “streaming” of the Raffi song could subject her to fines and litigation.

The audience participated enthusiastically in the Socratic discussion. Below is a brief list of questions (Q:) and answers (A:).

Q: What about dated material? For example, the Manhattan Project and other governmental terms.

A: Those aren't necessarily trademarks. There are arguably historical trademarks, such as the WPA. The federal government can't be copyrighted. History are facts, ideas, and data that not copyrightable.

Q: If I take a particular expression of history and edit it, what does that mean? For instance, if I take a .gif of Clinton denying his sexual relations with Monica Lewinsky, then edit it so that his nose is growing as he verbalizes the sentence.

A: The rigor in the owner of the documentation rather than on the historical moment. It is less of a fair use issue and more of a copyright infringement. Fair Use begins with a preamble. If you are taking the work for the purpose of criticism, scientific or scholarly activity, then you can ask about particular factors about the work. If it is a non-fiction work, how have you used it?

Q: What about projects that link technology, music, drama where lines are getting fuzzy as to who is creating what? Do you have any advice, direction, or words of comfort?

A: This is a notion of collaborative work. Each of those who contributed becomes joint authors and become joint recipients of proceeds.

Q: How do you work out those percentages?

A: There are no magic numbers. The copyright law sets the default line at equal shares. If you don't have a contract, however, you have co-equal rights. The best thing to do is talk to each other. The low-tech analogy can be seen in the job and responsibilities of the book editor.

Q: What about works made for hire?

A: There is a distinction between art made by and employee within the scope of employee's job versus commissioned artists’ works. Just paying them doesn't make it a work made for hire. Nine categories which may be determined as work made for hire: (i) audio visual; (ii) contribution to collective work; (iii) motion picture; (iv) translation; (v) supplementary work; (vi) compilation; (vii) instructional text; (viii) tests; and (ix) atlas. A person designing a web site cannot be called “work for hire.” The safe rule is that agreement has to be signed by both/all sides.

Q: Is there a difference between in-kind service and work made for hire?

A: Contributory infringement is still a live issue.