Copyright Panel
May. 17th, 2002 03:45 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
thebratqueenIt occurs to me I forgot to post about that copyright panel I went to a couple of weeks back.
The panel itself was supposed to be about the concept of whether or not the copyright laws as they stand now are stifling creativity. The panel in no way addressed this but it was interesting nevertheless.
I'll tell you right now I'm going to get the names wrong of the panelists.
The panelists were Johnnie Cochran (yes, that one) who is representing Rosa Parks in her lawsuit against Outkast for their song about her. Jay Koghen (sp?) from DC Comics and Mad Magazine, Rick Kernit (?) who dealt with the case of The Wind Done Gone (that offshoot/parody of Gone With The Wind). R. Masser (?) from SAG who's done some work to try to increase the representation for the dead and Diane Zimmerman (?) an NYU prof who deals with first amendment laws and worked with a Tiger Woods case re: some artwork that was done of him and sold as posters.
The panel started with some examples of various copyright lawsuits put together in a PowerPoint presentation which I think basically summed up the entire panel which is, in short, that while the law can say whatever it likes, fuck knows how a jury or judge will decide. I don't think this was the purpose of either the presentation or the panel, but that was the obvious conclusion. They showed things that were so obviously copyright violations that got off scott free, and other things that were so obviously not copyright violations and even had the approval of the original creators of the things in question, but which were still ruled as being in violation by the courts.
Most of the things dealt with visual media. There wasn't much about books but I did ask during the Q&A session.
Fair use was a point that was brought up. The panelists basically said that the touchstones for "fair use" were A) does the final product comment on the original thing and B) is it enough of a transformation? There's also the issue of how much is considered "fair" to use of the original material to comment on it. Diane Z raised the point that one of the frustrating things is that there is no hard and fast rule about that last bit. It's all subjective, so therefore difficult to check.
One of the points also raised for things like fanart is that as the law stands now good art is illegal, while bad art is not. A good picture of, say, Ewan as Obi-Wan would be considered in violation, but a bad one or a caricature would fall under parody and fair use. Which of course raises the question of why people are being punished for actually having talent.
There was also the question of "is it art?" and if something is "art" then is it enough of the "artist's" to overrule any copyright problems, even if the piece is sold for profit. Again there were no hard and fast answers.
Johnnie Cochran then talked a bit about his Rosa Parks case and God could I not stop rolling my eyes enough. You know every parody you've seen of this man? They're all true. He even started his bit by saying "Rosa Parks [dramatic pause] or, as I like to call her [dramatic pause] the mother of the Civil Rights movement..." which had me and Mer chortling in the asiles. I mean obviously no disrespect to Rosa but dude! Tone it down! We know!
(This did get Mer, me, and a friend of Mer's talking over dinner though - we were wondering if Rosa was the mother, then was MLK the father of the civil rights movement? And did that make Malcom X the bastard step-child of the civil rights movement? And is it possible to marry into the civil rights movement? But sometimes we're 12.)
JC also did some heavy eye-rolling of his own with regards to the Outkast case. He had such a tone of contempt in his voice when talking about [picture JC looking at a pile of dog poop] "Rap music." like pound for pound rap music is the thing that embarasses the black community more than, say, as for example, Johnnie himself. I had to grab Mer's notebook to scribble "Can the guy who defended OJ cop attitude about rap music?? Especially Outkast??"
But he did at least explain the Rosa Parks case in a way that I could understand. Basically he pointed out that they were using her name for publicity when Rosa herself had already sold her name for publicity purposes on other music albums (I believe they were gospel). So Outkast using her name to publicise their album without her permission hurt her ability to use her own name to make money. So I can kind of get that.
The panel then talked about how there needed to be a federal law on publicity to clarify things.
They also mentioned that part of the problem is that very often copyright holders are not the original artists or creators of the thing, but corporations. So you can have an original artist/writer/whoever who's fine with the new work but the actual copyright holder is not.
They also talked about the irony that fictional characters have more laws to protect them than real life people do.
The Lanham Act came up a lot. As they summarized it at the panel, the LA is federal and it addresses the idea of whether or not the final product confuses people as to whether or not the original copyright holder approves of the thing. So the Rosa Parks case would be an example of the LA at work - one of RP's arguments is that because she gave her stamp of approval to the gospel albums, putting her name on the Outkast album would imply she approves of it and endorses it, thus a violation of the LA. But again there are no hard and fast rules about what muddies the waters re: the LA.
They also talked about the "right of publicity" which is the right for someone to make money off of their own image/work. In other words, are you taking away someone's livelihood or potential livelihood by the act? This is part of why, say, fanfic for a TV-only show doesn't cause much of a threat because the copyright holder's livelihood is on the TV, not the written form. But fanfic for books gets smacked down because it hurts the author's ability to make money - reasoning being why would someone buy the books when they can get fanfic for free?
The panel also talked about how it's also frustrating because old business laws are being applied to a new age of communication. The copyright laws had now don't really cover the internet or even understand it.
We then had a Q&A so I got up first and asked the panel (JC had left by this time) about fanfiction. I can't remember how exactly I worded it but I said something like, okay, given what we've said about the LA and right of publicity, would it be a violation for a kid to, for example, want to comment on the concept of "What if Harry Potter had been American instead of British?" by writing a story about it, posting it on the Net for free and putting in a disclaimer about how JK Rowling had nothing to do with it? (I phrased it this way because I felt this would be the fanfic version of The Wind Done Gone which had finally been ruled as being legal so long as it had a big-ass disclaimer on the cover saying it was an unauthorized parody. More on this in a sec.)
The panel said that it would still be a violation b/c fair use says you can only use as much of the original material as you need to make the commentary you want. Totally taking over the characters like that would be beyond fair use. (Ironically, none of the panel brought up the lawsuit that JKR had against her for plagarism). Fair use, they said, must be sufficiently transformative and only use enough for the commentary.
They also said that the real acid test for fanfic was the competition factor. Intent (ie commenting on how you think things should have gone) and placing (ie posting it on the net for free and with a disclaimer) aren't important as far as keeping your butt safe. The real factor is if the fic can hurt future sales. If it can hurt future sales it's interfering with the author/show's/whatever's ability to make a livelihood from the product and therefore it is in violation.
Now herein lies my confusion because The Wind Done Gone, which shaped my question, was eventually considered fine and it was for-profit. So I'm not getting why for-free fanfic that follows the same disclaimer guidelines is considered bad. I'm guessing that it's because Gone With the Wind isn't much of a series (Scarlett notwithstanding) so therefore you're not hurting the livelihood of the estate as much as you would be JK Rowling who's still publishing and has said that the series isn't over so because she's got that immediate intent for future novels fanfic would be in direct competition. But again I'm totally guessing. I think really the answer is the one I mentioned before which is fuck knows how a judge and/or jury will decide.
Finally, based off of someone's question, they addressed the issue of real people in comics, novels, movies, etc. They said that it was not a right of publicity issue as much as it was a First Amendment issue, so long as it is not a defamation of character. However that's mostly for cameos (like all the real figures of history that were in Forrest Gump). If the real person is the main character, then that's a separate issue, but they didn't explain more about the hows and whys.
And that's about all I can remember off of my notes. Feel free to ask me questions - it'll probably jog my memory.
The panel itself was supposed to be about the concept of whether or not the copyright laws as they stand now are stifling creativity. The panel in no way addressed this but it was interesting nevertheless.
I'll tell you right now I'm going to get the names wrong of the panelists.
The panelists were Johnnie Cochran (yes, that one) who is representing Rosa Parks in her lawsuit against Outkast for their song about her. Jay Koghen (sp?) from DC Comics and Mad Magazine, Rick Kernit (?) who dealt with the case of The Wind Done Gone (that offshoot/parody of Gone With The Wind). R. Masser (?) from SAG who's done some work to try to increase the representation for the dead and Diane Zimmerman (?) an NYU prof who deals with first amendment laws and worked with a Tiger Woods case re: some artwork that was done of him and sold as posters.
The panel started with some examples of various copyright lawsuits put together in a PowerPoint presentation which I think basically summed up the entire panel which is, in short, that while the law can say whatever it likes, fuck knows how a jury or judge will decide. I don't think this was the purpose of either the presentation or the panel, but that was the obvious conclusion. They showed things that were so obviously copyright violations that got off scott free, and other things that were so obviously not copyright violations and even had the approval of the original creators of the things in question, but which were still ruled as being in violation by the courts.
Most of the things dealt with visual media. There wasn't much about books but I did ask during the Q&A session.
Fair use was a point that was brought up. The panelists basically said that the touchstones for "fair use" were A) does the final product comment on the original thing and B) is it enough of a transformation? There's also the issue of how much is considered "fair" to use of the original material to comment on it. Diane Z raised the point that one of the frustrating things is that there is no hard and fast rule about that last bit. It's all subjective, so therefore difficult to check.
One of the points also raised for things like fanart is that as the law stands now good art is illegal, while bad art is not. A good picture of, say, Ewan as Obi-Wan would be considered in violation, but a bad one or a caricature would fall under parody and fair use. Which of course raises the question of why people are being punished for actually having talent.
There was also the question of "is it art?" and if something is "art" then is it enough of the "artist's" to overrule any copyright problems, even if the piece is sold for profit. Again there were no hard and fast answers.
Johnnie Cochran then talked a bit about his Rosa Parks case and God could I not stop rolling my eyes enough. You know every parody you've seen of this man? They're all true. He even started his bit by saying "Rosa Parks [dramatic pause] or, as I like to call her [dramatic pause] the mother of the Civil Rights movement..." which had me and Mer chortling in the asiles. I mean obviously no disrespect to Rosa but dude! Tone it down! We know!
(This did get Mer, me, and a friend of Mer's talking over dinner though - we were wondering if Rosa was the mother, then was MLK the father of the civil rights movement? And did that make Malcom X the bastard step-child of the civil rights movement? And is it possible to marry into the civil rights movement? But sometimes we're 12.)
JC also did some heavy eye-rolling of his own with regards to the Outkast case. He had such a tone of contempt in his voice when talking about [picture JC looking at a pile of dog poop] "Rap music." like pound for pound rap music is the thing that embarasses the black community more than, say, as for example, Johnnie himself. I had to grab Mer's notebook to scribble "Can the guy who defended OJ cop attitude about rap music?? Especially Outkast??"
But he did at least explain the Rosa Parks case in a way that I could understand. Basically he pointed out that they were using her name for publicity when Rosa herself had already sold her name for publicity purposes on other music albums (I believe they were gospel). So Outkast using her name to publicise their album without her permission hurt her ability to use her own name to make money. So I can kind of get that.
The panel then talked about how there needed to be a federal law on publicity to clarify things.
They also mentioned that part of the problem is that very often copyright holders are not the original artists or creators of the thing, but corporations. So you can have an original artist/writer/whoever who's fine with the new work but the actual copyright holder is not.
They also talked about the irony that fictional characters have more laws to protect them than real life people do.
The Lanham Act came up a lot. As they summarized it at the panel, the LA is federal and it addresses the idea of whether or not the final product confuses people as to whether or not the original copyright holder approves of the thing. So the Rosa Parks case would be an example of the LA at work - one of RP's arguments is that because she gave her stamp of approval to the gospel albums, putting her name on the Outkast album would imply she approves of it and endorses it, thus a violation of the LA. But again there are no hard and fast rules about what muddies the waters re: the LA.
They also talked about the "right of publicity" which is the right for someone to make money off of their own image/work. In other words, are you taking away someone's livelihood or potential livelihood by the act? This is part of why, say, fanfic for a TV-only show doesn't cause much of a threat because the copyright holder's livelihood is on the TV, not the written form. But fanfic for books gets smacked down because it hurts the author's ability to make money - reasoning being why would someone buy the books when they can get fanfic for free?
The panel also talked about how it's also frustrating because old business laws are being applied to a new age of communication. The copyright laws had now don't really cover the internet or even understand it.
We then had a Q&A so I got up first and asked the panel (JC had left by this time) about fanfiction. I can't remember how exactly I worded it but I said something like, okay, given what we've said about the LA and right of publicity, would it be a violation for a kid to, for example, want to comment on the concept of "What if Harry Potter had been American instead of British?" by writing a story about it, posting it on the Net for free and putting in a disclaimer about how JK Rowling had nothing to do with it? (I phrased it this way because I felt this would be the fanfic version of The Wind Done Gone which had finally been ruled as being legal so long as it had a big-ass disclaimer on the cover saying it was an unauthorized parody. More on this in a sec.)
The panel said that it would still be a violation b/c fair use says you can only use as much of the original material as you need to make the commentary you want. Totally taking over the characters like that would be beyond fair use. (Ironically, none of the panel brought up the lawsuit that JKR had against her for plagarism). Fair use, they said, must be sufficiently transformative and only use enough for the commentary.
They also said that the real acid test for fanfic was the competition factor. Intent (ie commenting on how you think things should have gone) and placing (ie posting it on the net for free and with a disclaimer) aren't important as far as keeping your butt safe. The real factor is if the fic can hurt future sales. If it can hurt future sales it's interfering with the author/show's/whatever's ability to make a livelihood from the product and therefore it is in violation.
Now herein lies my confusion because The Wind Done Gone, which shaped my question, was eventually considered fine and it was for-profit. So I'm not getting why for-free fanfic that follows the same disclaimer guidelines is considered bad. I'm guessing that it's because Gone With the Wind isn't much of a series (Scarlett notwithstanding) so therefore you're not hurting the livelihood of the estate as much as you would be JK Rowling who's still publishing and has said that the series isn't over so because she's got that immediate intent for future novels fanfic would be in direct competition. But again I'm totally guessing. I think really the answer is the one I mentioned before which is fuck knows how a judge and/or jury will decide.
Finally, based off of someone's question, they addressed the issue of real people in comics, novels, movies, etc. They said that it was not a right of publicity issue as much as it was a First Amendment issue, so long as it is not a defamation of character. However that's mostly for cameos (like all the real figures of history that were in Forrest Gump). If the real person is the main character, then that's a separate issue, but they didn't explain more about the hows and whys.
And that's about all I can remember off of my notes. Feel free to ask me questions - it'll probably jog my memory.
