Reddit's Right in a Movie Script?

An unknown author writes a script that gets purchased by a major production company. It sounds like a fairly straightforward story and licensing deal, right? Not for James Erwin who wrote "Rome, Sweet Rome" a story about a modern day U.S. Marine who goes back in time to fight in Ancient Rome. Erwin then sold the exclusive movie rights to Warner Brothers. However, this deal presents some interesting copyright issues because Erwin originally shared his ideas for "Rome, Sweet Rome" on Reddit, a social news website whose content is entirely user created. In addition to publishing his story here, user content was contributed by the community and arguably used by Erwin to finalize his story.

Reddit has a stake in Erwin's deal because of the User Agreement that all Reddit users agree to when they join the website community. The agreement specifies that users "agree that by posting messages, ... or engaging in any other form of communication with or through the Website, you [the user] grant us [Reddit] a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, ... distribute, ... or sublicense any such communication in any medium ... and for any purpose, including commercial purposes, and to authorize others to do so." This presents the possibility that Reddit could now turn around and sell the portions of "Rome, Sweet Rome" divulged on the website. Section 205(e) of the Copyright Act states that a "nonexclusive license ... prevails over a conflicting transfer of copyright ownership" which seems to indicate that Reddit could legally license away the movie rights to "Rome, Sweet Rome," specifically the portions of the story and feedback trading on Reddit.

James Erwin, per Warner Bros. advice, has since removed "Rome, Sweet Rome" from Reddit and Reddit has not made any public efforts to sell its rights in the script. However, Reddit is operated by Advance Publications, a subsidiary of Conde Nast Publications. This means that they might be more likely than a small, independent website to license rights out to test the legal waters on the issue.

Regardless of whether Reddit acts on "Rome, Sweet Rome," it brings about an interesting issue of the rights of nonexclusive rights of licensees and licensors. For more on this story, see Does Warner Bros. Really Have Exclusive Movie Rights to a Story Posted on Reddit?

MPAA Brings Copyright Case Against Hotfile

The Motion Picture Association of American filed a suit against Hotfile.com last Tuesday, February 8 for copyright infringement. Hotfile is a cyberlocker website in which users gain access through paid subscriptions. The MPAA alleges that not only does Hotfile aid users in uploading copyrighted information but that they encourage users to disseminate the uploads they have gotten through the site. The claim targets Hotfile instead of other file sharing websites because the MPAA believes Hotfile discourages personal filesharing by incentivizing popular files. Because Hotfile has membership fees, MPAA alleges that the website is also profiting from the infringement of its users.

Curiously, the MPAA did not also file claims against other online locker services like Rapidshare and Megaupload. This is because the MPAA does not contend that all file lockers are unlawful. The distinction is defined by the Digital Millennium Copyright Act's safe harbor clause. The act protects Internet service providers that obey certain rules of sharing, but MPAA believes Hotfile is not following the rules, and instead is encouraging breaking the law. The case will bring online locker services and their legality under fire as they have become a more popular way for people to gain access to files, some copyrighted, on the Internet.

MPAA's complaint against Hotfile

"Hope" Poster Dispute Settled

The dispute over the creation and use of the Obama "Hope" poster was recently settled.In Fairey v.

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AP, as previously mentioned on this blog, the Associated Press had accused the artist Shepard Fairey of infringing its copyright on a photograph of Barack Obama by creating the popular "Hope" posters that were frequently seen during the 2008 presidential election campaigns. Fairey claimed that the poster he designed was fair use.

The case was particularly interesting because it nicely demonstrated the complexities of giving copyright protection to photographs. The issue is that a copyrighted work must be original, in the sense that the work must originate with the author of the work. This means that you cannot copyright facts, because facts are not independently created by the author; they are part of the state of the world. For example, the AP cannot copyright the fact that Obama was at the National Press Club or the fact that he was sitting in a certain seat, looking in a certain direction. Because a photograph necessarily encompasses facts such as these, courts are careful when it comes to photographs. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (giving copyright protection to photographs of Oscar Wilde).

One way to distinguish uncopyrightable facts from copyrightable original works is to identify the original contributions of a photographer. See Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2006). When creating a photograph, a photographer has many opportunities to be original; she can select the content, choose a camera angle, pose the subject, time the picture, frame the subject, and add lighting. Each of these elements of a photograph can be given copyright protection.

Why is any of this important to the Fairey v. AP case? Because if a court had decided that Fairey had only copied the fact that Obama was sitting in a certain spot, looking a certain way, then he was unlikely to be liable for copyright infringement. Similarly, if a court had decided that Fairey had taken only a few of the copyrighted elements of the AP photograph, it would have supported a finding of fair use and could also have made him not liable for infringement. Because the AP has settled the dispute with Shepard Fairey, these issues might go unanswered for a while.

Then again, the AP has not yet settled a related case against Obey Clothing, where a company was manufacturing T-shirts and other apparel that bore the "Hope" design. The details of giving copyright protection to photographs could become an issue for AP and Obey Clothing as that case progresses.

Source: Shepard Fairey and The A.P. Settle Legal Dispute [NYT]

Joker Obama: Copyright Infringement or Political Parody?

It’s certainly no joke. Yet another image of Obama has stirred up “copyright infringement concerns,” according to the photo-sharing website Flickr. This time, the image features U.S. President Barack Obama painted with the Joker’s clown makeup from the movie, “The Dark Knight.” Firas Alkhateeb, a 20-year-old college student from Chicago, created the image by using Adobe Photoshop to “Jockerize” the Obama photo. During the time that the Obama-Joker photo was hosted on Flickr.com, it generated over 20,000 pageviews until Alkhateeb received an email from the website informing him that the photo had been removed due to “copyright infringement concerns.” Now, many are lashing out at the website, insisting that image constitutes fair use as a political parody, a protected form of free speech. For this reason, there has been much controversy over whether Flickr’s removal amounted to political censorship.

More about this story can be found at LA Times.

It's All About Change: Fairey v. AP

Did Shepard Fairey, creator of the ubiquitous images that formed a central part of the Obama campaign, change a photograph by an Associate Press photographer enough to qualify for a fair use defense?

A federal judge in Manhattan will ultimately decide the issue, but both images are posted here so that you can draw your own conclusions (courtesy of the NY Times). Fairey has asked the court to grant a declaratory judgment against any potential copyright infringement claims advanced by the AP.

More about the case can be found via the New York Times, WSJ's Law Blog, and Am Law Daily.

HLS Professor Challenges the Constitutionality of RIAA File-sharing Lawsuits

Joel Tenenbaum, a graduate student from Harvard, is just one of the random assortment of individuals being sued for sharing music via peer-to-peer application.

For Harvard professor Charles Nesson this lawsuit was the last straw. He is defending Tenenbaum, and has filed a counterclaim against the specific plaintiff and against the RIAA, challenging the constitutionality of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, upon which the suit was filed.

This act is one of several legslative initiatives designed to provide a stronger protection to copyright owners in the digital age. Nesson claims the act has basically made the courts “a low-grade collection agency” for the RIAA. Suits are being brought randomly, singling out few out of the many Americans who use peer-to-peer networks, and seeking to punish them beyond any relation to the damage that they have allegedly caused. Many of these suits lead in fact to significant results for the RIAA in outside the court settlements, only because their targets do not have the resources to defend themselves in court.

Prof. Nesson’s ultimate goal is to drive the music industry to find new ways of distributing music in the digital age and encourage the legalization of the phenomenon of sharing of music on-line.

This is not the first attempt to render copyright legislation excessive and unconstitutional, so expectations should be reduced for Prof. Nesson. However, questioning the RIAA strategy may have the power to drive a change in the arena of on-line music consumption.

Read more:
Eon (Charles Nesson’s blog): The Copyright Theft Deterrance Act of 1999
Computerworld: Harvard professor offers new challenge to RIAA antipiracy campaign

The Digital Millennium Copyright Act Turns 10

October 28th marked an important anniversary for the digital IP community, as the Digital Millennium Copyright Act celebrated its tenth birthday. For a birthday present, the Electronic Frontier Foundation issued a scathing report, arguing that the law has been unjustly applied against "consumers, scientists and legitimate competitors."

The DMCA, designed to protect copyrights in the digital age, bans circumvention of digital rights management and other technological protection measures in return for limited safe harbors for ISPs who comply with the law's notice-and-takedown provisions.

The Act remains highly controversial, challenged from the perspectives of practical aspects as well as policy considerations. The EFF report claims that the act has failed to prevent digital piracy, and has instead succeeded in creating severe side-effects--such as harming fair use, free speech, scientific research, technology progression and legitimate competition.

You can access the EFF's full report here: http://www.eff.org/deeplinks/2008/10/dmca-ten-years-unintended-consequences