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January 10, 2011

Robert Clarida to Present Copyright CLE at Seattle University School of Law

Filed under: CLE, Copyright — admin @ 10:04 pm

On Tuesday, February 8th, the Northwest Chapter of the Copyright Society of the U.S.A. will host renowned copyright attorney Robert Clarida as he presents a review of the noteworthy copyright decisions of 2010. Highlights will include:

-The Costco/Omega first-sale grey market case just affirmed by an equally divided Supreme Court

-The Second Circuit’s new standard for issuing injunctions in copyright actions

-The implications of the Viacom/YouTube decision under the DMCA

-The Tenth Circuit’s surprising decision upholding the constitutionality of restoring copyright in public domain works

-The latest registration, fair use, and substantial similarity cases

Registration begins at 6 p.m. at the Seattle University School of Law. Cost is $40 for attorneys and professionals, $30 for members of the Copyright Society of the U.S.A. Free for students. More information is available here.

Mr. Clarida is the partner in charge of the copyright practice at the New York firm of Cowan, Liebowitz & Latman, P.C., which was named Copyright Firm of the Year for both 2008 and 2009 by Managing Intellectual Property magazine. He has conducted jury trials, argued federal appeals, and served as lead litigation counsel in a number of reported federal copyright cases. He also counsels clients, including Sony Pictures, Harvard University, IBM, Blue Man Group, The New York Public Library and EMI Records on non-litigious copyright matters, and has been the principal drafter of amicus curiae briefs on copyright matters in the U.S. Supreme Court and a number of Circuits, on behalf of organizations including the AIPLA, the Motion Picture Association of America, the New York City Bar Association and the Recording Industry Association of America.

New Year, New Links

Filed under: Art Law Links — admin @ 9:30 pm

One of the many creative cocktails at Poppy restaurant, Seattle

One of the many creative cocktails at Poppy, Seattle

-Shaken, not stirred: Can creative cocktails be protected from copying? (Freakonomics Blog)

-At indieguide.com, the authors of The Indie Band Survival Guide and The DIY Music Manual give free advice on everything from managing your recording space to making band T-shirts. Click on the legal link for information on copyright, trademark, and licensing issues for musicians. (via BoingBoing)

-Do you blog, post images to the Internet, or otherwise promote your art online? This brief article from Entrepreneur Magazine Online summarizes copyright issues for web sites. It also includes a list of online tools for licensing and tracking use of web-based content. (via Clancco)

-The Washington Journal of Law, Technology & Arts is the nation’s first technology and law journal that also publishes articles involving the arts, and they have a blog, maintained by students at the University of Washington School of Law. Check out this helpful post on recent exemptions added to the Digital Millennium Copyright Act (DMCA) for documentary filmmakers and other artists who remix videos.

December 6, 2010

In Case You Missed It: Proprietary Issues in Public Art

Filed under: Legal Art Workshops — admin @ 11:23 pm

Never fear: Attorney and intrepid WLA Workshop reporter Anne-Marie Marra is here, with a detailed summary of our seminar on Proprietary Issues in Public Art. Here’s an excerpt from the full summary, available on her blog, Girl Gamer, Esq.:

On Wednesday I went to the follow-up to last month’s Workshop on Negotiating for Public Art Contracts, which this time was held at 4Culture near Pioneer Square, and had nearly standing-room only attendance. Speaking were Robert C. Cumbow of Graham and Dunn, and Amy McBride of the Tacoma Art Commission. The topic was essentially “So now that you have a contract for a public work of art…what can you do with it? What can the government agency do with it?”

I took pages of notes, but I’ll try to post just the important bits, and embed links to relevant code sections.

The fundamental question with art ownership is “who is the author?” Copyright legally vests in the person who created the work, although this right can be signed away before the work is created as a work made for hire. Works made for hire can be either something created by an employee within the scope of their employment, or a specially commissioned work, in which case the contract would govern the transaction.

: photo by Ornithorynque

Three types of moral rights are laid out by the Berne Convention: attribution, integrity, and following. The US only observes attribution and integrity, and only for works of “visual art” which does not include television or film for some reason. Moral rights, unlike copyrights, are personal instead of economic rights, and can be waived but generally not sold outright. Attribution is the right of the author to have their name on a work, or to have their name taken off a work that doesn’t represent them as an author. Integrity is the right of the artist to have their work not defaced or altered, and is usually limited by the amount of wear and tear, and the physical limits of the space in which the art was placed. Having a piece of Styrofoam sculpture in the middle of the ocean would not have as much duration as a concrete work in Detroit, for example.

Compared with Europe, the US is far more interested in the right of society to use a work, allowing the authors and inventors exclusive rights only for a limited period of time before the work enters the public domain. One good point is that “public domain” is a phrase with a specific legal meaning, and is not a fancy word to indicate the work has been published. Being on the internet does not put something into the “public domain” because that would mean it was no longer protected by copyright law. In the US, that would happen if it were published before 1923, or if the author has affirmatively dedicated it to the public, but generally not otherwise.

However, determining whether the art you want to use as inspiration has an expired copyright is really more of risk analysis, and not legal analysis. The great summary of risk analysis is a three part question:

How likely is the Copyright owner to know about the use?

If they know, how likely are they to care?

Even if they care, what’s the worst thing that could happen as a result?

This last part is where copyright attorneys really excel, as we tend to know the punishments for infringement, whether what you want to do is one act, or multiple acts, and whether what you’ve done might fall under permissible fair use. What is fair use? How much of a work can you use without being sued? Fair use is defined by the copyright act to be “use of a copyrighted work that is allowable by the law for such purposes as criticism, comment, teaching, news reporting, scholarship, research..” and is not a shield against litigation, but an analysis applied by the court during a case of copyright infringement.

There is no hard and fast rule about fair use, merely four factors that the court uses to determine whether an individual use merits the protection. An evaluation is made about the nature of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. That’s a lot of words for “it depends.”

Anne-Marie Marra is a lawyer and gamer in Seattle, WA. She currently works with SOMA Law Group, LLC.

Guitars and Gavels Rocked

Filed under: WLA News — admin @ 10:41 pm

Many thanks to everyone who helped make our Guitars and Gavels Gala a great success! More than 100 people attended, and we met our fundraising goal. Here are some photos of the event, courtesy of WLA Board Member Kevin Higinbotham.

Sunday Evening Whiskey Club

Mark Pessi of Sunday Evening Whiskey Club

From left: Jason Goessi, Adam Pessi, and Caitlin Sherman of Sunday Evening Whiskey Club

From left: WLA Chair Ingrid Mattson and Executive Director Jennifer Krebs

November 10, 2010

Guitars and Gavels is Tomorrow Night!

Filed under: WLA News — admin @ 11:10 pm

We’re lawyers, so we’d like to make it clear that WLA disclaims all warranties, express or implied, that the bands playing tomorrow night at our Guitars and Gavels Gala will actually be strumming their guitars with gavels. But we’re pretty sure that you’re going to dig their music anyway:

Soda started in 2006 with a blend of musicians with different backgrounds, including rock, jazz and country western. Their music features strong vocal harmonies and smooth pedal steel guitar. They currently are writing new songs and have begun recording a new record

Sunday Evening Whiskey Club

Sunday Evening Whiskey Club began as a group of friends hanging around a campfire in the mountains of Western Washington. The group was comprised of musicians from various Seattle bands and the songs consisted of bluegrass and country covers, as well as originals written by Mark Pessl. Pessl’s catalogue started coming together in the early nineties and has grown to include barn-stomping bluegrass, traditional country, and straight-ahead pop, with influences ranging from Doc Watson and Will Oldham to Luna and The Dandy Warhols. This camping trip left such an impression on all involved that the group decided to start playing together weekly, and soon it was clear that the gatherings had evolved into something more than just casual jam sessions.

NPR describes The Young Evils as “bouncy boy-girl pop,” with singers Troy Nelson and Mackenzie Mercer “[s]ounding for all the world like jaded juvenile delinquents on a sugar-fueled joyride.” We’re completely smitten with the paper cutout props in their video for “Get Over It.”

Youth Rescue Mission

Youth Rescue Mission is the music of three brothers and their big sister Hannah Williams (formerly of Friday Mile) who all have migrated from Montana to Seattle. Bound by blood and music, their songs tell stories of the past weaving unapologetically through old wounds, past betrayal, and a family caught trying to find its way. Their family turmoil seems to only strengthen them musically, leaving an undercurrent of relief and healing that results in beautifully touching musical moments and incredibly precise, unique, and often charming vocal harmonies. YRM are currently finishing up the final touches on their debut album, due out by Christmas. Tracks from this recording have already been leaked and found their way onto both Sound on the Sound and KEXP.

Tickets for Guitars and Gavels are available at Brown Paper Tickets.

November 1, 2010

In Case You Missed It: Public Art Contracts

Filed under: Legal Art Workshops — admin @ 6:04 pm

Photo by jk5854

Seattle attorney Anne-Marie Marra attended last week’s Legal Art Workshop on Public Art Contracts and covered it on her blog, Girl Gamer, Esq. She was kind enough to let us re-post:

Last night I went to the Public Arts Contracts Workshop hosted by the Washington Lawyers for the Arts at Seattle City Hall. Focusing on what goes into negotiating for a contract with a public agency, it was quite well done. Moderated by Katy Stone, an artist who has done public and private art commissions, the three panelists were: Ruri Yampolsky, Director of the Public Art Program with the Seattle Office of Arts & Cultural Affairs; Robert Kaplan, a Seattle-based attorney who has advised and represented numerous public artists on contract issues; and Cath Brunner, Director of Public Art 4Culture, a King County organization.

Much of the discussion was common sense, but with a level of detail that many artists don’t consider when submitting a bid for something that might take five years to build and be around for thirty. What happens if the price of steel goes up while you’re waiting for the construction phase to get to the point where you can add your artwork? Did you remember to build a buffer for your own fee? What about making sure your fabricators are also bound by the same terms you agreed to? Does the bid include the cost of insurance or legal advice? Who pays the taxes?

Next month there will be a follow-up, on Proprietary Rights, or what control does the artist have after the installation is complete? What IP rights do you have? What about moral rights? Find out the answers to these questions and more, on November 17th at noon!

Anne-Marie Marra is a lawyer and gamer in Seattle, WA. She currently works with SOMA Law Group, LLC.

UPDATE: Materials from the Public Art Contracts Legal Art Workshop are now available. Click on the links below to download them in PDF format.

Best Practices

Contract Elements

Workshop Resources

October 28, 2010

Are bulk copyright registrations of photos valid? Several cases have said “No”

Filed under: Copyright — admin @ 9:24 pm

by Gina Culbert, Merchant & Gould, P.C. (Intellectual Property Law and Litigation), Vice-President, Washington Lawyers for the Arts

Hey, all you photographers out there: You may have heard of several cases recently that invalidate the longstanding practice of stock photography agencies bulk registering your photos for copyright purposes. This post will give you the skinny.

In a string of recent federal court cases, the courts dismissed the lawsuits of several photographers who were suing for copyright infringement, because they did not have valid copyright registrations. (Refresher here: The Copyright Act requires you to have a registration before you can sue for infringement.) In all of the cases, the photographers relied on stock photo agencies to submit registrations on their behalf. This has been a very common way of saving money—each photographer assigns legal title to the work(s) (i.e., the photograph(s)) for the purposes of copyright registration. The agency then submits a bulk registration of photos as collective work, and when the registration is complete, assigns title back to the photographer.

The courts in at least three cases—Bean v. Houghton Mifflin Harcourt Pub. Co., Muench Photography, Inc. v. Houghton Mifflin and Alaska Stock v. Houghton Mifflin (from federal courts in Arizona, New York and Alaska, respectively)—have now ruled that this procedure is not valid to register the copyright in the individual photographs contained in the collection. Such a registration only covers the agency’s own copyright in the collection of works, not in any individual work. This is especially true when the agency’s bulk registration includes works by more than one photographer. These findings of invalidity mean that the individual photographer cannot sue for infringement (or take advantage of the other benefits of copyright registration, such as the right to claim statutory damages and attorneys’ fees for infringement).

One of the cases even went so far as to say that a stock agency cannot register photos in bulk at all, because the agency is not the author of the photos. The accuracy of this ruling has been questioned, and it remains to be seen whether there will be an appeal on this issue. A number of stock photo agencies filed amicus briefs arguing that this statement is error.

It should be noted that one judge was quick to point out that the problem is not the fault of the agencies, who received improper advice from the Copyright Office. But as of right now, it appears that the bulk registration process will not support registration in the individual works.

So what should you do? If you are concerned about infringement, it would probably be a good idea to submit your own group registration. The link for the U.S. Copyright Office circular explaining the procedure is here. In the meantime, stay tuned. We will try to submit follow-up posts as the cases wend their way through the courts.

Gina can be reached at rculbert@merchantgould.com.

September 23, 2010

“Unlisted” to air on PBS stations in October

Filed under: SpotlightOn — admin @ 10:54 pm

Last year, WLA was thrilled to find out that Unlisted: A Story of Schizophrenia—a film by Seattle-based filmmaker and physician Delaney Ruston MD—was deemed “Most Compelling Documentary” at the 2009 Seattle True Independent Film Festival. So you can imagine our exuberance when we heard that Unlisted will air on national public television stations next month! Watch a trailer and check your local listings here.

In case you missed the story pre-Spark, here’s a reprint of our 2009 SpotlightOn feature on Unlisted, written by WLA Board Member Jen Chiang:

Unlisted, A film by Delaney Ruston MD

Creating your first full-length film is hard. But the word “hard” doesn’t seem to do justice when describing the time, effort, and energy devoted to creating your first full-length documentary film about your father’s painful struggle with schizophrenia—all as a solo filmmaker and while working your day job as a practicing physician.

: Delaney Ruston and her father, Richard Ruston

Delaney Ruston, a Stanford educated internist, grew up in Berkeley surrounded by her mother’s filmmaker friends, so when she got her first camera in medical school she decided to make her own “man-on-the-street” interviews. She eventually moved on to producing short films for use in the medical curriculum, including If She Knew, which explores the medical ethics of withholding difficult news from patients.

pill-bottle
Washington Lawyers for the Arts (WLA) first met Delaney Ruston six years ago when she visited the WLA Arts Legal Clinic at Seattle University. She was looking for advice on personal releases she was using for Unlisted. Rather than hire an attorney, she came to the clinic after hearing about the service though 911 Media Arts Center. “Someone that cared made it so much less threatening than finding a general lawyer” she said, adding, “Gosh they must really care about us [as artists], someone saying they want to help was a nice relief.”

Eventually she received grant funding from the National Endowment for the Arts’ “New Voices” program to support the film. She was not only the director, writer, and producer—she was the sole fundraiser.

in-therapy-office

Meanwhile, as Unlisted is just beginning its run on the big screen, Delaney is currently in production on her next film and is already coming up with her legal questions for WLA volunteers.

So what advice does she have for future filmmakers? “Put it in writing, as easy as it is not to.” And the key to success? “Patience.”

For More Information: http://www.seattlepi.com/local/401885_filmmaker02.html

September 21, 2010

September Art Law Links

Filed under: Art Law Links — admin @ 7:01 pm

Here’s the art law news on our radar this month:

-Little Toy Blue: Is displaying a photograph of a toy Smurf copyright infringement? (Dear Rich)

Zap -Zap! Pow! Objection! The Yale Law School Law Library hosts the exhibition “Superheroes in Court! Lawyers, Law and Comic Books” through December. The exhibition includes images of superheroes in court, documents from legal disputes involving comic-book caped crusaders, and comics about lawyers. We think “The Spark” would be an awesome superhero representation of WLA! (The New York Times)

-Who Owns the Korean Taco? While you’re on the New York Times site, click over to the Freakonomics Blog, where Professors Kal Raustiala and Chris Sprigman ask why chefs serve new dishes when others are free to copy them. The post is part of a series that also considers why fashion designers, comedians, and football coaches continue to create, even though their work may not be not protected by copyright.

-The Seattle Art Museum has filed a petition in King County Superior Court for approval to borrow up to $10 million from its endowment fund, in order to avoid defaulting on the lease on its downtown property. (The Seattle Post-Intelligencer, via The Art Law Blog)

-Think Ink: The Ninth Circuit Court of Appeals has ruled that tattoo parlors are protected by the First Amendment. In finding an anti-tattoo-parlor ordinance from the City of Hermosa Beach unconstitutional, the Ninth Circuit disagreed with a lower court finding that tattoo artists convey no message of their own. Rather, tattooing is a “collaborative creative process,” like newspaper reporting, that is constitutionally protected. (Clancco)

-We were fascinated by this slide show on tests of creative thinking and this podcast that imagines a world without words, from which we learned, among other uber-cool things, that Shakespeare helped invent the knock-knock joke. (Newsweek, RadioLab)

-Jim DeRogatis and Greg Kot talk music licensing with writer John Bowe, who spent a day on the job with a performing rights organization “music-copyright enforcer” for this article. (Sound Opinions)

July 4, 2010

Meet Jennifer Krebs

Filed under: WLA News — admin @ 8:37 pm

In April, WLA announced the appointment of Jennifer Amanda (”J”) Krebs as its new Executive Director. J was most recently an associate attorney in the Seattle office of Garvey Schubert Barer. She also held positions as the communications manager for the City of Enumclaw and the executive director of Puget Sound Access. In addition, J served for four years on the Enumclaw City Council. She holds a bachelor’s degree from UCLA, a master’s in anthropology from McGill University, and a J.D. from the University of Washington School of Law.

J Krebs

Spark caught up with J to ask her about summer in Seattle, good eats, and the art that’s inspiring her right now:

Spark: What’s your favorite work of art?
J: Rothko’s Blue and Chagall’s The Birthday

S: An artist you are loving right now?
J: Jim Marshall

S: Top 3 songs on your iPod right now?
J: The Hold Steady, Stuck Between Stations; Cracker, Yalla Yalla; Camper Van Beethoven, Long Plastic Hallway

S: Your favorite art event in Seattle?
J: SAM Remix

S:Your favorite place to eat in Seattle?
J: Tutta Bella

S: Your favorite Seattle-area summer activity?
J: Bumbershoot

S: Beatles or Rolling Stones?
J: The Who (The Beatles, if you make me pick)

S: Kindle or Book Made From Paper?
J: Paper

S: Last book you read?
J: Lewis Carroll, Alice’s Adventures in Wonderland

Above, J smiles for the camera in front of Bloom Cycle, a site-specific sculpture by Portland-based artist Christine Bourdette. You can see it in the lobby of the Columbia Center in downtown Seattle.

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This site provides information about the law intended to give users a starting point when addressing a legal question. However, legal information is not the same as legal advice, which involves the application of the law to a specific set of facts or specific situation. For professional assurance that the information you find here is appropriate for your particular situation, we recommend that you consult an attorney. You can find one at a WLA Arts Legal Clinic near you, or you can ask us for a referral.