One of the key things that you recognize as you look more closely at how intellectual property is used, the reality is often quite different than the “theory.” The theory is that intellectual property is most important for those up and coming artists who need the “protection” to have the incentive to create and to build up support. The reality is often that the up and comers ignore copyright law because it makes little sense to them and often gets in the way of what they’re trying to do. Those who rely on copyright as a crutch are often those who have already been successful, and are looking for ways to squeeze more out of their previous success (and to slow down upstarts and competitors). We recently talked about how up-and-coming jazz musicians were struggling because copyright law was getting in the way of their ability to build on the works of others — as their jazz forefathers had done from the beginning of the jazz era forward.
And now it appears that some jazz greats, who relied on just the same ability to build on the works of others, are now using copyright law to try to stop other artists from building on their own works. Michael Henderson, a bandmate of Miles Davis, and an incredibly influential jazz musician is now suing Snoop Dogg for sampling.
The legal battles over sampling have gone on for years, with some really, really terrible rulings on the books (basically, look for any lawsuit involving Bridgeport). Notably, Henderson appears to have brought this lawsuit in the 6th Circuit, where the Bridgeport v. Dimension Films bizarrely declared that there was no “de minimis” defense to sampling music. It would be nice to see a court decision recognizing that sampling isn’t illegal, but we’re unlikely to see that any time soon…
One of the more interesting issues related to copyright law is how contract law meshes with copyright law. For example, there was the recent case (still going through the appeals process) over whether or not a copyright holder (a record label in this case) could effectively wipe out First Sale rights (allowing you to resell what you bought) via a contract. As of right now, the US courts have said no — and that’s important. If you could supercede copyright laws with contractual terms, it would make the limitations on copyright law effectively meaningless, because every product would quickly include some sort of licensing agreement that took away fair use, first sale and other exceptions (including, potentially, the idea that the copyrights might someday expire). This is not a US only issue, of course. Just recently we’ve seen blogs from elsewhere also start to discuss if contracts can increase limitations beyond copyrights.
However, there is a new lawsuit in the US that may be worth following on this topic. It involves GateHouse Media — a company that has been ridiculously aggressive in trying to stop others from doing things as simple as copying a headline and a lede. In this case, the primary issue is a little (if only slightly) more reasonable, in that the lawsuit involves a company that sells nice looking plaques to people with a copy of a newspaper article about them or their company. GateHouse offers such a service itself, and clearly sees this competition as infringing.
For quite some time, Copycense has been banging the drum that setting up Creative Commons as a contractual layer to copyright takes it into dangerous territory that isn’t good for copyright law itself or overall public policy. There haven’t been too many cases that have tested this point, but it sounds like the GateHouse Media one has the potential to raise certain questions (who knows if we’ll actually get answers) about how copyright and contracts relate to each other — especially within the realm of Creative Commons.
This has been one of my concerns with Creative Commons. Many folks who support Creative Commons licenses are justifiably worried about what happens in cases like the one above concerning promo CDs where the First Sale doctrine gets written out of copyright law via contract. Yet, at the same time, the whole basis of many Creative Commons licenses is based on this same ability to bring contract law into copyright. As much as I like the concept of Creative Commons, this still leaves me worried. The lawsuit itself may not end up challenging this point, but sooner or later, someone’s going to do so, and people who think they’re on one side of the argument may quickly find themselves on the flip side.
BT and TalkTalk, two UK ISPs who had been critics of the Digital Economy Act all along, are now going to court to find out if it’s legal, before they go through the hassle of implementing any of the provisions. They’re apparently claiming that the law was passed with “insufficient scrutiny,” and that the implementation rules coming out of Ofcom put them at a disadvantage competitively. While both of those things are true, it’s not clear that this makes the law invalid. It would certainly be nice if the courts ruled it invalid, but it also seems like a long shot.
It’s pretty common for people who think that “ideas” can be owned to get upset when someone else makes a movie or a book that has a similar idea to one they had. These often lead to lawsuits that quickly go nowhere. It’s actually quite rare to find a lawsuit over the idea of a book or movie that has legs, and it usually has to involve some detailed evidence. For example the famous Buchwald v. Paramount case involved a situation where Paramount had specifically optioned a very similar story (to what became Coming to America) from Buchwald, involving the same actor (Eddie Murphy) and director (John Landis) who eventually made the movie. That case showed direct involvement of many of the parties. Most of these cases are more along the lines of “hey, I had that idea and I sent it to movie studio X, so they must have seen it and copied it.” Those don’t get very far.
However, THREsq has the details on a lawsuit from a woman who does a half decent job of suggesting her lawsuit might be slightly more like Buchwald’s than others — though there are some really wacky aspects to this lawsuit, and I doubt that she’ll win. This case involves Pamella Lawrence, who apparently wrote a book about an embarrassing thing (where her clothes were stripped off) that happened to her at a funeral in Jamaica which was caught on film. Her book had the catchy name “Caught on Video … The Most Embarassing Moment de Funeral, July 11, 1994, Jamaican Volume 1.” Two movies, with the much catchier name “Death at a Funeral” have come out in the last few years (one in the UK, and another remake in the US — neither of which did all that well). Lawrence claims both were based on her book and video. At times, her lawsuit seems to go off the deep end. As THREsq describes:
The woman, Pamella Lawrence, is representing herself in court and has filed a lawsuit stuffed with outrageous claims, including racism, a plot to eradicate the female population of urban cities and allegations of inside jokes within the movie that were specifically intended to humiliate her.
Yes, apparently, because the first thing you want to do when infringing on someone’s copyright is write into the script jokes intended to humiliate the person. Most of those claims seem like absolutely ridiculous stretches. However, as THREsq notes, this shouldn’t automatically be relegated into the “nutty pro se” lawsuit bin:
Yes, many of the claims stretch reason, but Lawrence has also gone to extreme lengths to craft a 54-page complaint that almost looks and feels as if it was drawn up by a $500-an-hour attorney. She cites applicable laws and case citations (although none are required in complaints), copyright registrations, numerous exhibits and perhaps most impressively a frame work intended to bypass the legal pitfalls that typically trip up those asserting idea theft in Hollywood.
It still seems like a longshot, but she does describe meeting with studio execs, and even getting involved in a legal dispute previously that ended in a settlement. That all makes for much more interesting reading than the typical such lawsuit, but it still seems pretty thin on actual evidence of anything in the complaint. But, there’s also so much pure ridiculousness in the lawsuit that whatever credibility is built up in the other parts may get lost in the deep paranoia. Again, from THREsq’s summary:
Lawrence claims the defendants intended to destroy the “female competition” from the “inner city” in relevant markets by distributing the film, that Hollywood has a consistent pattern of discriminating against women as evidenced by the fact it took 82 years for a woman to win best director at the Oscars, and that this case is an example of why there are so few minorities at Sony Pictures
Yeah, that’s not quite how you go about making yourself a credible plaintiff. On top of that, the “similarities” seem incredibly weak as well. Just because there are some generic similarities in characters or parts of a story, it doesn’t mean that infringement or breach of any contract occurred. Still, if you want some entertaining reading in the form of a lawsuit filing, here you go:
