You absolutely can link to it as I have just now (and above) and (what the hell) will do again (just for fun). Sorry Dr. T. Matthew Ciolek, that’s just not how copyright works.

Now comes the amazing tale of James Erwin, a largely unknown author who successfully got Warner Bros. to buy movie rights to his story about what would happen if U.S. Marines traveled back in time to fight the Roman Empire. Erwin accomplished this by posting a series of stories entitled “Rome, Sweet Rome” on Reddit.com, an online community that allows users to post links and have discussions with each other.

Warner Bros. aggressively snapped up rights to this story upon seeing it, but does the studio really hold exclusive rights to adapt a film adaptation?

The Reddit terms include a non-exclusive license to use content posted to their servers. I’ve written about the terms of iReport and instagram in the past, and Facebook’s terms contain a similar license.

This creates a difficult choice: share your content, grant a license, and [maybe] get discovered OR don’t share your content, retain all rights, and [probably] never get discovered…

Instagram is an iPhone app that allows users to “choose a filter to transform the look and feel” of their photo, and to share the photo on the internet. Some of the resulting images can be very cool.

All 3 images via exoskeletoncabaret on Flickr under Creative Commons license.

But when you snap a photo, then allow Instagram to alter it, do you still own the copyright? Copyright protects the rights of the individual or entity that creates a work. When you took the picture, you created it. However, when Instagram processes its filter, it is playing a role in the creation, right? Arguably, it is a much larger role than that of Photoshop or other editing software, because those programs allow users to control the end result with seemingly endless variables. Instagram, by contrast, applies a set filter.

Thankfully, the folks at Instagram have crafted terms of service to address this [potential] problem.

Proprietary Rights in Content on Instagram.
Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. [Emphasis added]

Whew! Here I thought there might be a copyright issue. Boy was I wrong. But there is some more text there.

By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services. [Emphasis added]

So, unless you set your photos to “private,” when you share them using Instagram, Instagram can re-use them in any media they want. They can also modify them. While you retain the copyright, Instagram gets the right to exploit your work as they see fit. Well, at least they can’t sell your work or plaster it on advertising, right? Wrong.

Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you. [Emphasis added]

That said, the service is free. It performs a pretty cool function and asks for relatively little in return.

Moreover, these terms of service do not foreclose your right to exploit your own photos commercially, even after Instagram has altered them. Nor do they allow Instagram to sell your photos to outside advertisers (at least the way I read them).

The service also presents a unique crowdsourcing opportunity for advertisers. According to Mashable, Designer Rebecca Minkoff plans to use user photos posted on Instagram in her next ad. Fans are asked to snap pictures of their favorite Minkoff pieces, and designate their entries with the hashtag #RebeccaMinkoff.

The Mashable article makes no mention of payment, and there likely is none in this case. In the future, though, there is nothing stopping a iPhone photog from using Instagram to make her photo more marketable. There is nothing stopping her from selling it for advertising or other uses – so long as she is not trying to sell it to Instagram (they can use it for free).

Keep in mind this is not legal advice and is provided purely for informational purposes.

While this is the final installment, I have already thought of a few questions I want to cover in the future. Please leave a comment to suggest any additional topics you think I should address.

 The editor shouted at me repeatedly  on the phone.  I was accused of breaching my contract (which I did not) but worse, of ‘blatantly betraying them with Amazon,’ their biggest and most intimidating  competitor.  I was not trustworthy.  I was sleeping with the enemy.

N.J. Blogger Acquitted of Threats to Conn. Officials. AP reports on a blogger who was found not guilty of inciting injury and misdemeanor threatening after urging readers to “take up arms.”

Turner, who represented himself, argued that no one was hurt and there was no evidence that his words led to any violence. He also cited his First Amendment right to free speech.

Ohio Lawyer Drops $10 Million Defamation Claim Against Supporters of Runaway Christian Convert. Washington Post reports that the lawyer for the parents of a runaway has settled his claims against a New York blogger.

Columbus lawyer Omar Tarazi had argued that New York-based blogger Pamela Geller defamed him by alleging he has terrorist ties

Under the settlement agreed to late Tuesday Geller will remove five posts about Tarazi from her “Atlas Shrugs” blog.

Photographer’s Rights in the Digital Age. Blogger Amy Phillips discusses the murky topics of personal privacy and photographer’s rights. The post seems to respond to concerns raised by this blog, which posts photos of unknowing commuters on the D.C. metro.

Often it seems it is up the photographer to educate the public about what he can and cannot take photos of, and this can lead to arguments and threat of legal actions. As a public, we like to know our rights, and we also need to know when we don’t have any of those so-called ‘rights’.

Copyright Licensing Agreement — One Way To Keep Control Of Your Intellectual Property. ProblemSolve.org details the need for copyright licensing when sharing your work.

If you are a creative artist with clients who want to use your intellectual property, you may possibly be considering a transfer agreement — but what if there was a way to retain control over your supplies and permit only particular parties to use your work in certain ways? With a copyright licensing agreement, you can.

That’s it for this week. I’ll keep an eye out for good #Law content.

Blue Horse, 2011, Matthew Cusick

An artist like Cusick needs to be aware that maps are copyrightable. (See, e.g. here and here). When making a collage, or cutting up another’s work to make something new, an artist needs to be careful.

It wasn’t that long ago Richard Prince was sued for collaging and painting on top of photographs taken by a French photographer. The court found that Prince’s use was not sufficiently transformative to be a fair use. Prince is still appealing.

Original, Left. Prince's Work, Right. Via ARTINFO

In Cusick’s case, there is probably no cause for panic. The maps appear to be somewhat old. It’s possible their copyrights have expired, and that they are now in the public domain.

If not, Cusick’s use of the maps is most likely a “transformative fair use” anyway. To determine whether a use is fair, courts generally look at:

1. The purpose and character of the use, including whether it is commercial or nonprofit;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. The effect of the use upon the potential market for, or value of, the copyrighted work

Some uses are so “transformative” that they are implicitly fair. The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. (see here). Whether the work has been sufficiently changed depends on whether the second work adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message. Here, Cusick’s works are vastly different from the maps from which they are constructed. There is no doubt that Cusick’s work adds something completely new – an image with emotion.

Geronimo, 2007, Matthew Cusick

Cusick uses small sections of maps. While he might use an entire map in the construction of a piece of art, you would never know it. There is no impact on the potential market for the maps as the new works are useless as maps.

While Cusick is probably safe, visual artists, especially those who focus in collage or transformative art, need to be aware of the copyrights on the materials they use.

Keep in mind this is not legal advice and is provided purely for informational purposes.

More to come! Please leave a comment here you can think of additional topics I should cover.

TechCrunch pointed out, however, that the people at Netflix forgot to get the Twitter handle for the before they announced the new company. Jason Castillo, the guy who currently holds the name @Qwikster, has caught on, and is hoping to cash out.

Via TechCrunch

It’s my opinion, though, that Castillo shouldn’t be too unreasonable during the negotiations. While the simple way for Netflix to acquire the @Qwikster name is to buy it from Castillo, there is another way.

The Twitter Terms of Service state:

We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users or reclaim usernames. [emphasis added]

The bottom line, is that you have no individual property interest in your Twitter account. It’s like a locker in a high school. You can put your stuff in it (or on it), but at the end of the day, the principal (or Twitter) can kick you out of it.

So instead of making an offer to Castillo, Netflix could just approach Twitter with a similar offer. In fact, they might be inclined to do just that. Negotiating with another enterprising internet-based company is probably a much more streamlined process than negotiating with a pot-smoking Elmo.

Update: Castillo has changed his avatar from pot-smoking Elmo to the Barcelona futbol club’s emblem.

Update 2: The Twitter site rules actually forbid selling a Twitter user name:

Selling user names: Unless you have been specifically permitted to do so in a separate agreement with Twitter, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose, where “Services” is defined as follows: Your use of Twitter’s products, services and web sites (referred to collectively as the “Services” in this document and excluding any services provided to you by Twitter under a separate written agreement) is subject to the terms of a legal agreement between you and Twitter.

By selling the account, he would obviously violate the rule. Then what? Twitter would reclaim it? Seems more and more that Netflix should just make an offer to Twitter directly. Gizmodo has a potential work-around: Netflix could hire Castillo.

Twitter, however, isn’t talking. According to Kashmir Hill at Forbes:

Spokesperson Carolyn Penner says: “Beyond [posted Twitter rules], we don’t comment on specific accounts, for privacy reasons, and it’s not productive to get into a theoretical discussion.”

Appropriately, September 19 is also the day the :-) emoticon was born.

:-) is arguably the first marriage of art and Internet. As simple combinations of ASCII characters,  :-)  :-(  ;-)  and the like can convey a lot in a tiny space. Today is a good day ;-)

*- This site will -still- not be legal advice, even after I am an attorney.

Many people believe they own everything they post online, be it Tweets, Facebook status, or whatever. The truth is that most people are most likely incorrect in their assumption.

Museums Make Some Art Available, Free of Charge. Clancco Art + Law posts about LACMA’s decision to make high-resolution images of some of its holdings available online, free for use and re-use by the public.

Don’t get too excited. Most, if not all of the works, are already in the public domain…

Burmese Photojournalist Sentenced to 10 More Years. PDN Pulse reports:

Burmese photographjournalist Sithu Zeya, who was sentenced last year to 8 years in prison for violating Burma’s immigration laws and “Unlawful Associations Act,” was sentenced yesterday to an additional 10 years for violating the country’s “Electronics Act” …

Before Facebook censors us, we’ll do it ourselves. The Art Newspaper covers a Swedish gallery’s decision to censor images containing nudity posted to Facebook.

The move was partly to stop Facebook removing the images, but also “to trigger a debate”.

No Beatles for you! EU adds 20 years to music copyrights. The EU has extended copyright protection for sound recordings by 20 years, moving the term of protection from 50 to 70 years. Just as the U.S. Copyright Term Extension Act, passed in 1998 (perhaps to protect Mickey Mouse), the extension applies retroactively. ARS Technica reports:

The long and winding road to this point actually began in 2008, when the European Union announced a plan to extend musical copyrights to 95 years. The stated objective was to “help aging session musicians” who had been making small amounts of money from these recordings for 50 years but were about to be cut off just when the rigors of old age were taking their toll.

Complaints prompt museum to cancel exhibit of kids’ drawings. The Newseum’s First Amendment Center posts this AP story about an exhibit at Oakland’s Museum of Children’s Art. The exhibit was closed after complaints by the community.

The drawings, done by children between the ages of 9 to about 11, showed bombs being dropped, tanks and people getting shot.

“They are pictures of what these children experienced. It’s their experience,” said Barbara Lubin, executive director of the alliance.

If a Kid Grabs Your Camera and Snaps a Photo, Who Owns the Copyright?. Answer: Probably the kid. What’s interesting about this post at PetaPixel is really the the gross misunderstanding of copyright law demonstrated by some of the comments. Don’t believe everything you read. Example:

In Canada and the US, I believe copyright belongs to /whoever develops, or pays to develop the roll of film/.

That’s it for this week. I’ll keep an eye out for good #Law content.