On Tyson's Face, It's Art. On Film, a Legal Issue
nytimes.com
nytimes.com
"That's the real question: the copyright act balances the copyright owners' rights and not stifling the creativity of the owners - it would stifle creativity to not be able to make a parody," Mr. Harkins said."
Such a shame you're not allowed to use someone else' songs on Youtube anymore for your own personalized videos. The same thing should apply here, too.
Those are the policies of You Tube/Google, not necessarily US copyright law.
And largely because people believe the law is either (a) whatever they think it should be or (b) whatever some other random jerk on the internet told 'em it was.
1. Not distinguishing between the Supreme Court taking a case and making a decision on the merits, and the Supreme Court not taking the case. There are only a few things the Supreme Court is required to hear. Most of their cases fall into categories that they are allowed to decide if they want to take them are not. There are many more cases vying for their attention than they can handle, so they tend to only take cases that raise important issues and that have been sufficiently explored in the lower courts.
When they do not take a case, it (1) does not set any precedent, and (2) does not indicate what they think of the merits.
Yet the press often reports these rejections as if the Supreme Court decided on the merits that the appealing party was wrong.
2. Not understanding the history of the case and what the Supreme Court's decision means in the context of that history. In Campbell, for instance, one the issue of whether the parody of Roy Orbison's song was fair use, the district court said that since it was parody it was automatically fair use and granted summary judgement for the defendant. The appeals court said the fact that it was commercial and copied the whole song meant it could not be fair use.
The Supreme Court basically said they were both wrong. Parody isn't automatically fair use, but being commercial and using all of the song doesn't automatically make it not fair use. The case was sent back down for the lower courts to analyze using the guidelines the Supreme Court set out. However, the parties settled, so we never got to see how the lower courts would apply those guidelines.
The tactics of the MAFIAAs against P2P 'infringers' is also being used by attorneys of adult pornography content producers.
As the type of content needing protection against infringers changes to pr0n, we are seeing more support on the part of the judicial system in balancing the rights of the accused against the MAFIAAs and pr0n IP defenders.
Now that you mention it, fair-use as parody will probably be a valid defense.
But, thanks for calling my use of an acronym 'stupid'. Very articulate.
(It should be pointed out that it is actually an attempt to do chopsueyar a favor; as it happens around here that sort of thing is generally likely to make their writing less persuasive, not more.)
I do not need any favors like that.
MAFIAA is pronounceable, memorable, and descriptive. It's a good name.
I agree with the downvote. HN is a place for real discussion, and even though the RIAA wasn't the topic of discussion right now, as a community, let's not get into the habit of assuming the RIAA are a mafia - it will make it much harder to be objective on the issue.
I was in no way trying to 'trick' anyone. I was expressing a personal observation.
Were you unable to comprehend my opinion of legal enforcement strategies with regard to specific IP content types because of the acronyms I used?
I have always assumed readers of HN are able to form their own opinions, including whether or not the collective behaviors of the MPAA and RIAA resemble that of organized crime, particularly with regard to extortion.
For the record I don't mind (nor do I think anybody else outside of a tiny but very trigger happy minority) people calling them MAFIAA -- it is shorter than the Recording and Movie Industry Association Of America, is arguably more accurate (RIAA isn't really producing that many vinyl records anymore, but they are suing grandmothers and there are plenty of companies who send out letters threating huge fines if they aren't settled for less than a lawyer cost) and honestly people should be free to express their opinion.
Do you also object to RIAA calling people who infringe copyright pirates? Because if not, you are enforcing a double standard.
If you could freely use anyone's music on your YouTube videos, wouldn't the net effect be that all music would be available for free to anyone? People would just get new songs as they are released, slap then on videos of their cats, and make them available on YouTube, where anyone could easily grab them, strip off the video, and have the song.
ffmpeg -i source_video.avi -vn -ar 44100 -ac 2 -ab 192 -f mp3 sound.mp3
On the producing side, it would also be easy to automate. Ffmpeg can add audio to a video, and it can trim a video. You could easily have a long video of your cat, say 30 minutes, and write a shell script to take a directory of MP3 files, and for each find the length, pick a random section from your long cat video of the appropriate length, extract a section of that length, and add the audio. The script could then upload the video to YouTube, putting the artist and song name in the description, so that on the receiving side naming and basic tagging of the MP3 could be automated.
If you could freely use anyone's music on your YouTube videos, wouldn't the net effect be that all music would be available for free to anyone? People would just get new songs as they are released (Chicken and egg here, where are they getting them from? They cannot yet get them from You Tube since we are waiting on the initial cat video) , slap then on videos of their cats (take an AVCHD video stream, load it into a video editor, take the chicken-n-egg Lady Gaga mp3, add it to the project, then render the video in h.264 or avi, or whatever) , and make them available on YouTube (upload the rendered video file to your YouTube account linked to your email address), where anyone could easily grab them, strip off the video, and have the song.
Now they have to download some You Tube video grabbing program, probably violating the ToS of You Tube, and risking some sort of malware from the h.264 downloader, then strip the song from the video, then manually name the audio file and add the attributes to the file also.
But probably where you said where anyone could easily caused some disagreement and hence the downvotes.
I realize you are just trolling, but could you at least try to troll consistently with the discussion?
The only reason you are adding this music to cat videos is to circumvent copyright.
I do not believe Tyson paid the artist as a W-2 wage employee.
If anything, he (the artist) would be acting as a contractor (1099), performing an agreed upon service to Mr. Tyson.
http://en.wikipedia.org/wiki/Work_for_hire#Law_of_the_United...
A "work made for hire" is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101)
That last part about an express agreement pretty much sinks the possibility that it's a work for hire, unless you know of such an agreement in this case.
NOTE: IAAL, but not your lawyer, and this is not legal advice.
"The complaint includes a photograph of the tattoo being inked and a statement from Mr. Tyson agreeing that “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property” of Mr. Whitmill’s business."
Agreements aside, this is also an issue that comes up when hiring a programmer. If you pay someone to write code, don't you own the copyright on the code? Similarly, if you pay someone to photograph your wedding, don't you own the copyright on those photographs? In general, have a solid written contract clearly spelling out ownership issues and have it reviewed by a lawyer familiar with copyright issues before you engage someone in creative work.
The money was made in the ordering of specific photograph prints from the photography company, things like albums and wallet prints.
However, that business model is all but destroyed. It is much simpler and more profitable to give the reproduction rights to the client and burn everything to a couple of DVDs or copy to a USB stick.
1. a work prepared by an employee within the scope of his employment. The tattoo artist would not be an employee[1] of Tyson, so this case does not apply.
2. A work specially ordered or commissioned (check!) for us as a contribution to a collective work (nope!), as a part of a motion picture (nope!) or other audiovisual work (nope!)[2], as a supplementary work (nope!)[3], as a compilation (nope!), as an instructional text (nope!), as a test (nope!), or as an atlas (nope!), if the parties expressly agree in a written instrument signed them that the work shall be considered a work made for hire.
Case 2 does not apply because first a tattoo doesn't seem to fall into any of the categories that can be a work for hire. Even if it did, there would have to be an EXPRESS agreement that it is a work for hire, and that has to be executed as a SIGNED and WRITTEN instrument.
[1] The determination of whether the hired party is an employee is determined by the common law of agency. Factors involved in this are who controls the manner and means by which the work is accomplished, who supplies equipment and tools, where the work is done, the duration of the relationship, whether the hiring party can assign addition work to the hired party, who hires assistants for the hired party, and things like that. Unless the relation between Tyson on the artist was very atypical of the relationship between tattoo artist and customer, the artist was not an employee according to the common law of agency.
[2] An "audiovisual work" is a work that consists of a series of related images which are intended to be shown by the use of machines or devices, such as projectors, viewers, or electronic equipment, together with accompanying sounds (if any). Since a tattoo is a single image, not a series of related images, it is not an audiovisual work.
[3] A supplementary work is a work that is created and relates to an existing work. Examples would be forwards to books, illustrations for a book, and the like.
Where start-up technology companies are concerned, some courts have considered that the traditional factors for finding that an author is an "employee" can be less important than in more-established companies, for example if the employee works remotely and is not directly supervised, or if the employee is paid entirely in equity without benefits or tax withholding
Your #[3] could be argued that as a celebrity persona, the public image of "Mike Tyson" is a created work, and the addition of the tattoo is supplementary to his creative work - his celebrity persona. But, as you stated, it would still require a signed work for hire document.
Arguably, due to the first sale doctrine, he could transfer his copy to your face, say via a skin transplant.
Where it could get interesting is if someone photographs him (and thus the tattoo). I'm not well versed in how the law works when it comes to photographing copyrighted works, but I do know that there are a lot of special cases, and there is a big distinction between works displayed in public and works that are not on public display, and that a lot depends on what the photographer is doing with the photograph.
I wonder if someone who has a problem with intrusive paparazzi intruding on their non-public life could get a copyrighted tattoo, buy the copyright from the tattoo artist, and then sue any photographer who tries to sell a photo taken in a private setting that includes the tattoo?
The absurdities this lawsuit opens are never ending... :)
On another note, what would happen, if a tattoo artist used another artist's work on a customer? How will said customer have to comply, if the work tattooed is deemed to be an infringement on the original artist's copyright?
In the case at hand, the issue is artistic copyright and the moral rights of artists. One of the applicable governing laws in this area is the Berne copyright convention, which the US ratified in 1989. See http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protec...
Additionally, a number of articles have mentioned that the tattoo artist had a contract with Tyson that covered the type of controversy that's the subject of the litigation.
Bottom line: I think he has a case.
ie: http://static2.stuff.co.nz/1233108507/512/167512.jpg
I'd seen that tattoo a few times and hadn't realised it was supposed to be māori in any way...
The whole thing smells of publicity stunt by Warner Bros, and a money grab by the tattooist.
http://s-ak.buzzfed.com/static/imagebuzz/terminal01/2011/4/2...
They are actually pretty darn similar, though Helms' tattoo is a bit different -- a little squarer.
My gut feeling is that the lawsuit doesn't have merit, though I have difficulty putting together a legal justification of why that is. My general feeling is that the actual tattoo design is too generic a combination of random Maori design elements to be copyrightable.
But no, I don't think this is a publicity stunt by Warner Bros. But yes, clearly it is a money grab by the tattooist.