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Author Insists Copyright Prevents Links to Article Posted Online (via Techdirt)

November 12, 2011

Full story on Techdirt.  Their (correct) legal take away:

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.


Does Warner Bros. Have Exclusive Movie Rights to a Story Posted on Reddit?

October 20, 2011

In a great post over at Hollywood Reporter, Eriq Gardner looks at the Reddit terms of use and tries to come up with an answer.

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, 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…

#Law and iPhone Photography: Instagram and Copyright

October 1, 2011

Copyrights generally belong to creators. Artists, writers, sculptors and architects automatically own the copyright to the works they create. The same is true of photographers – even iPhone photographers.

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.

If you are not paying for it, you're not the customer, you're the product being sold

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).

UPDATE: 12/18/2012: Instagram has updated its terms of service. You should all read the newest TOS, effective January 16, 2013.

#Law Tag #Copyright Primer Part 4

September 29, 2011

In the fourth and final installment of my primer on copyright law for content creators, I talk about using others’ copyrighted content. Specifically, I answer the questions: What is Fair Use? Is My Use a Fair Use? and What Works Can I Use Without Permission?

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.

Sunday #Law Summary: 5 Stories I Didn’t Have Time to do Justice

September 25, 2011

Sleeping With the Enemy: A Cautionary Tale. Author Kiana Davenport  discusses her battle with her publishing company after Davenport self-published two ebook anthologies of short stories.

 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. 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.

Creating Art from Art: Transformative Fair Use

September 23, 2011

I recently came across the work of an artist, Matthew Cusick, who paints with maps. Rather than use traditional paints, Cusick cuts up maps and pieces them together to create remarkable new images.

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.

#Law Tag #Copyright Primer Part 3

September 21, 2011

In the third installment of my primer on copyright law for content creators, I look at the tools for copyright enforcement. Specifically, I answer the questions: How Do I Enforce My Copyright? and How Do I File a DMCA Takedown Notice to Protect My Creation?

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.