Tuesday, July 17, 2012

Comic-Con Ramblings Part 1 - Law School at the Con; Robot Chicken and the Parody/Satire Dichotomy

I.       Comic Book Law School - I've been attending comics conventions around the country for over a decade, and have spent the last five years speaking as a lawyer and scholar on the intersection of comics and the law. The past two years I have been a panelist on the hot topics panel portion of the three-day Comic Book Law School program presented at the San Diego International Comic-Con - billed as the largest such convention in the world. My friend and colleague, Beverly Hills IP attorney Michael Lovitz, does the pro bono service of offering this program to attendees (a mixed bag of lawyers, artists and fans) every year.

Each year I participate I am reminded that those of us in legal education, or in active practice representing relatively savvy clients in IP matters, tend to lose sight of how for many members of society, the basic principles of IP law are a mystery.  Popular myths are persistent (i.e.: you can obtain the legal protection of copyright by mailing a copy of the work to yourself), and there is often confusion as to what a copyright protects - the idea/expression dichotomy is a source of much confusion.

Given the increasing importance IP has in society, it may be worthwhile for colleges, and possibly high schools (yes, even in this cash-strapped time for public education), to offer training in basic IP law (copyright, trademark, patent, trade secret, unfair competition and right of publicity) in an array of concentration areas in their curriculum. IP issues are important in the Business Administration field;  in Computer Science;  in Political Science;  and in all aspects of arts education, ranging from music to film. Law schools and local bar associations should encourage faculty and IP practitioners to offer talks, lectures and classes in their areas of expertise, to shed much needed light about these subjects.

2.       Robot Chicken and the Parody/Satire dichotomy - Robot Chicken is a stop-motion animated television series created by Seth Green and Matthew Senreich, which airs as part of the Cartoon Network's Adult Swim programming. The show makes me laugh often, and cringe occasionally. The creators and writers presented a hilarious panel at last week's Comic-Con.

The IMDb industry website characterizes the show's non-stop sketches as "satire", and the Wikipedia entry calls the program a "parody" show.  The reason for the confusion is that it offers a bit of both forms of content. Using toys, action figures and dolls, the sketches skewer pop culture in a broad array of contexts, from movies, to television, reality shows to comics. Celebrity voices add to the wicked sense of humor, with the celebrities often showing the good sense to participate in episodes that poke fun at themselves.

In between the intentionally juvenile barf and fart jokes can be found mordantly funny and sometimes dark or dry humor that parodies popular movies, television and related media, as well as sketches that satirize pop culture trends (the sketch which takes four popular children's toys in the My Little Pony series, and recasts them as the Four Ponies of the Apocalypse comes to mind). From a teaching standpoint, the show offers a great opportunity to illustrate the difference between parody and satire, as well as an opportunity to showcase the principle that the First Amendment exists not just to protect content we enjoy, but also material that we find offensive - as the content of this program is often likely to offend at least some, if not most, of its viewers at one point or another - no one and nothing is immune from its reach.

Of interest also is the fact that despite the sometimes very dark tone of its parodies and satires, the creators of Robot Chicken have not apparently been sued, neither for copyright infringement, nor a violation of rights of publicity, or of defamation (their parodies of Paris Hilton and Lindsey Lohan are particularly provocative). This may be, at least in part, due to what has become known as the Streisand effect - the idea that suing might bring more unwelcome attention to the defendant's conduct, and that the better tactic is to simply wait out the fifteen minutes of fame the parody will draw, before the fickle public and media moves on.

In my next Comic-Con related blog post,  I will address violence by fanatic fans at the Con, and I'll summarize the state of comics censorship and the ongoing work of the Comic Book Legal Defense Fund...stay tuned till then.

Sunday, July 1, 2012

Notes on Alec Baldwin, Rights of Privacy and Publicity, Paparazzi, and Decency

Actor Alec Baldwin's been having a real up and down life recently - his career is hot due to his popular role on 30 Rock, and he's just married a woman who seems to have helped him turn his personal life and habits around. On the negative side, he's gotten into two well-publicized battles with paparazzi - consistent with conflict he has had with them for many years.

In one of the recent fights, Baldwin apparently got upset because paparazzi were blocking the street in front of his home waiting to photograph him, and when a neighbor complained to a photographer, she was cursed out by him. Baldwin interceded, and got the usual response that the pap had First Amendment rights to be on a public sidewalk to take photos of Baldwin.

The general rationales supporting paparazzi activity is that celebrities give up their right of privacy in exchange for their right of publicity, that celebrities have a public forum to discuss their unhappiness, and that the newsworthiness of obtaining photos of celebrities leaving Costco or Starbucks gives paparazzi the right to track and record the daily movements of their targets whenever they have the poor judgment to venture out into a public space, like a street.

This last point is usually framed as an argument that there is no reasonable expectation of privacy available to anyone in a public space. While stalking laws have been used to enforce celebrity rights to be free from stalkers entering their homes, or repeatedly calling or texting them, it takes a particularly egregious case to support a "distance injunction" preventing a photographer from being too close to a subject - see, e.g., the case of Jackie Kennedy Onassis versus Ron Galella, in which a court issued a stay away order directing him to stay 50 feet away from her and 75 feet away from her children.

While courts have repeatedly found that there is no right of privacy expectation in public space, this isn't really the point. The idea that your choice of occupation must be made at a cost of having your own personal space being constantly invaded, as well as that of your friends, family, and neighbors, just seems wrong to decent people. If privacy rights are not a valid means of addressing this, then we need to consider other remedies, perhaps sounding in tort for harassment, assault, or related offenses. Fine actors, politicians and others have been driven out of their chosen careers by this conduct. We as a society built on laws can do better than this, and we need to.

Wednesday, June 6, 2012

Win Some, Lose Some - Google, Copyright and the Courts

In the span of six days, Google has lost and won key decisions in two important copyright cases it is a party to.  On May 31, in its class action battle against the Authors Guild, it lost the certification fight when Judge Denny Chin granted certification status to the plaintiffs. On June 5th, Google won big when Judge William Alsup found that its use of Sun Microsystem's API code, which now belongs to Oracle, was a fair use.

The class certification in the Authors Guild case (No. 05 Civ. 8136, USDC S.D.N.Y.) is an interesting development. Last year, Judge Chin rejected an amended version of the proposed settlement agreement, citing, among other reasons, that the proposed class might not be able to adequately represent the very diverse interests of different kinds of authors. Prof. Pam Samuelson of Berkeley Law School had authored a letter signed by many law professors, noting that writers of academic scholarly works were more interested in the widespread distribution of their works, rather than income - a concern Judge Chin acknowledged in rejecting the settlement.

However, in last week's decision, Judge Chin summarily dismissed the "adequacy of representation" argument by noting that authors who don't feel that their interests can be represented in this action can simply opt out of the class. This is a weak argument in that these authors are, as a group, far less likely to bring a suit against Google for copyright infringement given their limited damages and the costs associated with litigation. 

It remains to be seen whether any party will appeal this certification decision.  Under FRCP Rule 23(f), an interlocutory appeal could be filed at this point in the litigation.
The next step in the case will be cross-motions for summary judgment on the issue of whether Google's downloads are fair use. Given some of Judge Chin's statements in his decisions to date, there is some speculation that a reason he granted certification was that he intends to find that Google's actions were not not fair use - a decision that would render moot any objections by possible class members as to the adequacy of representation. The motions will be filed this summer, with a hearing scheduled for September. This is a key copyright case to  keep an eye on.

In its litigation with Oracle, Google's fair use argument succeeded.  At issue was Oracle's claim that Google, in using Sun's application programming interfaces (APIs) in its Android mobile operating system, infringed the copyright in the interface software. Google argued that the API is so basic and fundamental to carry out a system of commands that finding infringement was too "sweeping" a proposition, and that the APIs were just outside of the scope of copyright protection. The web industry breathed a collective sigh of relief on this one.

As for Oracle, they come up with a big goose egg in this case - losing on both their copyright and patent infringement claims, and incurring what are likely to be some pretty hefty legal fees in the process.

Saturday, May 19, 2012

To Register or Not to Register Copyright in Legal Briefs - That is the Question

Like many questions in the law, the answer is a conditional one - maybe, and maybe not. The question is not a new one, but the ease of distribution afforded to digital media has brought it to the fore once again. In White v. West Publishing Corporation et al, Case No. 12-1340 filed in the US District Court for the Southern District of New York, a class action suit filed by several subclasses of lawyers is challenging the right of Lexis-Nexis and West Publishing to collect (usually via download) legal briefs filed in cases, and then repackage them for sale, presumably to other lawyers. In a ruling issued on May 16th, U.S. District Court Judge Jed Rakoff dismissed the claim of the subclass of lawyers who had failed to register their briefs with the Copyright Office, on the grounds that, as he put it, "The statute is unequivocal that completing registration or pre-registration is a prerequisite to filing a claim".

Judge Rakoff's order does not address the validity of the claims of the other putative subclass - comprised of lawyers who did register their briefs.  While this decision, on its merits, seems unremarkable and consistent with long-established legal precedent, it does re-open the debate about the merit of the underlying claim - that lawyers have a right to, and should exercise their right, to register copyright ownership in their legal briefs. This presents the more interesting issues for discussion.

My review of previous commentary in this debate disclosed that two principal arguments seem to be advanced in opposition to registration - 1) all filings with a court are a matter of public record, which in turn means that briefs filed instantly go into the public domain, making registration impossible; and 2) absent someone directly copying a brief in its entirety, any subsequent re-packaging of a legal brief is a fair use, and therefore defensible against a subsequent infringement claim. 
The fact that court filings are a matter of public record doesn't mean that the contents of those filings are placed in the public domain. This is true of the legal briefs filed, and is made more evident if you consider that attachments to those briefs, particularly in intellectual property cases, often include material clearly protected by copyright registration. Filing a lawsuit claiming infringement of a motion picture script, where that script is attached as an exhibit to the complaint, doesn't result in a waiver of copyright protection for that script, merely because the script, as an exhibit, is now part of the public record.

The fair use argument presents a more complex problem, meriting a more detailed analysis. Is the nature of the use, in a legal brief, a commercial use, or a non-profit use? Is the use transformative? Is the nature of the work creative, thereby warranting greater protection? As is often the case in fair use defenses, it is impossible to posit a bright line answer to these questions, leaving lawyers to fall back to the dreaded "each case has to be separately analyzed on its own merits" answer, which gives little guidance to a practitioner faced with the decision of whether to raise the defense.
The fourth prong of fair use analysis, the effect of the use on the market for the original work, poses even more difficulties regarding legal briefs. The brief is not sold as a good itself, but rather represents the result of billable hourly work, which includes compensation for the research required, the time spent drafting and editing the brief, and the skill and experience of the author. None of these elements are subject to copyright protection.

Moreover, the attorney who drafts the brief is generally not in the business of selling the brief as an independent good, and the work is largely tailored to the specific facts of the case or needs of the client. Which of course raises another issue usually not discussed in this debate - while attorney work product belongs to the attorney, does the client have any ownership interest in the work which was created based on their case or need, and for which they paid the cost of its creation? And given these issues, is there really a strong argument that can be made that lawyers have an interest in marketing these briefs?

Since most of what is found in a legal brief isn't subject to copyright protection (ie:  the facts of the case, the case citations and the facts and quoted language from those authorities, the text of relevant statutes and prior orders in the case; the research efforts of counsel, and related items), what is left is the prose used by counsel to present the argument. It seems unlikely that the interest in this prose has enough value to make assertion of a protectable copyright interest worth pursuing - unless the universality of the issue and the high quality of the prose attracts the interest of an aggregator like Lexis-Nexis or West, who are thereafter able to make a sufficiently grand net profit from the resale of the text to warrant the claim.  Sounds unlikely to me - so let's wait to see the outcome of this class action suit to see if the District Court agrees.

Thursday, May 10, 2012

Comics, Courts and Controversy

I'm back after an unexpectedly long hiatus. Part of the reason for my absence is the effort I've devoted to completing a lengthy new law review article: Comics, Courts and Controversy: The Cases of the Comic Book Legal Defense Fund, which has just been published by the Loyola Los Angeles Entertainment Law Review. You can download a copy at:  http://elr.lls.edu. 

Here's the abstract for the article:  

Cartoons and comics have been a part of American culture since this
nation’s formation. Throughout that lengthy history, comics and cartoons
have also been a subject of controversy, censorship, legislation, and litigation.
They have been viewed as a threat to society and a cause of juvenile
delinquency; they are scandalous, indecent, and obscene. The Comic Book
Legal Defense Fund (“CBLDF”), a New York-based non-profit organization,
provides legal defense for comic artists, collectors, distributors, and
retailers who face civil and/or criminal penalties for the creation, sale, and
ownership of comics, cartoons, graphic novels, and related works.

The Introduction to this article charts the history of the comic art form
and, in particular, its history in the United States. This section offers a
summary of the first efforts to restrict the content of comics via investigations
and Congressional hearings fueled by the dubious psychology and social
science theories of Dr. Frederic Wertham. These theories offer an example
of the kind of misguided fears that currently augment attacks on the
comic art form today. Finally, the Introduction explains the origin of the
CBLDF due to the prosecution of a comic storeowner.

The second section of the article provides a detailed discussion of Mavrides
v. Franchise Tax Board. In Mavrides, comic creator Paul Mavrides,
co-author of the notorious underground comic The Fabulous Furry Freak
Brothers, successfully battled the California Franchise Tax Board over the
taxation of comics. As a result, independent comic artists were free of undue
tax burdens that otherwise would have limited their ability to continue to create
comics with edgy political and social commentary.

The third section of the article focuses on the principal type of case the
CBLDF has worked on for the past two decades—fighting the U.S. Justice
Department and local state prosecutors’ efforts to censor the content of
comics, usually by alleging that the content is obscene or indecent. In particular,
the section focuses on the cases of Gordon Lee, a Georgia-based distributor
prosecuted for allegedly distributing an obscene graphic novel to a
minor, and Christopher Handley, an adult prosecuted under the PROTECT
Act for the mere possession of allegedly obscene Manga comics.

The final section of the article argues that the current American jurisprudence
imprisons creators, distributors, and collectors for the ideas they
express in graphic formats. It argues that the Supreme Court was wrong
when it decided that obscene materials are outside of the protection of the
First Amendment. Unfortunately, this decision has had a tremendous impact
on the rights of comic creators, distributors, and collectors. Furthermore,
the rationale for criminalizing explicit sexual material, to protect children
from the alleged harm exposure to these materials causes, is flawed.
The absence of any definitive proof of that harm leads to the recommendation
that at the very least, penalties for the creation, distribution, and ownership
of comics and cartoons with sexual content must be de-criminalized.

I hope you take the time to read it, and send me comments via this blog, or directly to me at mgreenberg@ggu.edu. Now that I'm back, more posts to come in the near future!