Taking liberties

by Sarah Barnett / 14 November, 2009
Bee Gees. Photo/Getty Images

Bee Gees. Photo/Getty Images

From Catcher in the Rye to Rupert Murdoch, challenges to copyright are rife - and it's a fine and ever-changing line between what's allowable and what's not.

Bee Gee Maurice Gibb recognised the song playing for the courtroom in 1984; he identified it as his own How Deep Is Your Love, from the Saturday Night Fever soundtrack, composed by the Bee Gees in 1977.

Except it wasn't. The song was Ronald Selle's Let It End, composed in 1975.

Selle had brought a copyright infringement suit against the Gibb brothers, and was convinced that Maurice's gaffe was enough to prove a rip-off had occurred. It might have been, had there been any way of proving the brothers had heard Selle's tune before they wrote theirs. But Selle had only ever played Let It End a handful of times at small venues in Chicago; it was never released as a record. The Gibbs, it was concluded, hadn't had access, so couldn't have infringed his copyright - however similar the songs sounded.

Nowadays, Professor Jane Ginsburg says, "Selle could have his own website and have all his music available for streaming or downloading, and then it would be kind of an interesting question - whether you could prove that the Bee Gees had ever had access to the website." Ginsburg, the Morton L Janklow Professor of Literary and Artistic Property Law at Columbia Law School, New York, was in New Zealand recently as the University of Auckland Law School's Legal Research Foundation Visiting Scholar.

Establishing access is merely the first hurdle to proving copyright infringement: plaintiffs also have to prove a substantial similarity to their work. Dan Brown, for instance, with his Da Vinci Code, couldn't deny having had access to Michael Baigent and Richard Leigh's non-fiction book Holy Blood, Holy Grail - he named a character after them - "but the court found he didn't take anything more than information and general themes", Ginsburg says.

But even similarity may not cut it, as a recent kerfuffle over dogs' bottoms shows. Dawn McMillan, the Kiwi author of the 2003 picture book Why Do Dogs Sniff Bottoms? told the Herald recently she was "not very pleased" to hear about a UK book by the name The Great Dog Bottom Swap, with a similar story - dogs check in their bottoms at the door at a party, and accidentally retrieve the wrong rear ends when a fire alarm sounds. Despite the fact that McMillan's book was published in the UK, so it's conceivable that the British author saw it, and despite the story similarities, the case for copyright infringement is unlikely to be strong, Ginsburg says, because the books share a prior common source, in the form of an old rugby drinking song.

The internet makes access to works so much easier and creates infinite prior common sources. Its impact on Ginsburg's area of expertise is still making itself known. Although she can't claim to have foreseen the spread of the internet when she was studying for her doctorate of law at Harvard in the 1970s, she was in no doubt international copyright was the area of law to be in.

An international trade lawyer put it into words for her: "He said that when he was a kid, he would wake up in the morning to his General Electric alarm clock, he would go down to breakfast and put bread in the Toastmaster toaster, and he'd get driven to school in a Chevrolet. Twenty or more years later, his son wakes up to his Toshiba alarm clock, puts breakfast in the Samsung microwave and gets driven to school in the Toyota.

"So the things the US used to make and export, they don't any more. Electronics, steel, automobiles, all of that is being done - better - elsewhere. But the second half of the story that he didn't tell, and this is where I picked up on the international copyright angle, is that whether the radio is a Toshiba or anything else, wherever that radio is, it is likely to be playing American pop music. And computers are likely to be running American software, and the motion pictures that are playing in the theatres are likely to be American motion pictures. So what we're exporting is no longer hard goods, it's entertainment and intellectual property."

How far intellectual property extends is a question of endless complexity, and one that hasn't been raised only by the internet's expansion. As Stephen Fry reminisced at this year's iTunes Festival (obtained through free - legal - podcast), tape recorders were prolific in his university days, so everyone would tape their records for their mates. "We were made to feel slightly squalid and dirty for doing this," he noted, "but of course it was only the beginning."

Now the music industry, especially, is scrambling to create new business models to take advantage of the internet, rather than viewing it as the piracy-enabling enemy it's been seen as previously.

Where the middle ground lies, between criminalising unauthorised downloading and simply allowing everything to be free - if there is a stable middle ground - is still up for discussion. Certainly, some of the heavy-handed lawsuits record labels have brought against pirates have been unpopular, although Ginsburg notes that some of the biggest awards to the labels have been given by juries, "so this is 12 ordinary people who think the defendant's done something pretty bad".

Still, as Fry argues, "The stupidest thing the recording industry can do is to alienate people who love music. How can you be so dumb?"

Although the technology for copying did exist before the internet, the web - and bigger and better home computers - has led to the rise of the remix movement, bringing into question the idea of "fair use". Novels like Pride and Prejudice and Zombies, by Jane Austen and Seth Grahame-Smith ("It is a truth universally acknowledged that a zombie in possession of brains must be in want of more brains."), take works already in the public domain (that is, out of copyright) and mash them with other works or into other genres, in this case, exploiting an apparently recession-led obsession with the undead. Once a work is in the public domain, it's fair game, although Ginsburg points out "the remix movement would like to be able to do today, with work still under copyright, what nobody would question you could do with works that are no longer under copyright".

JD Salinger took a case against Swedish author Fredrik Colting: Colting, under the pseudonym JD California, published 60 Years Later: Coming Through the Rye in the UK, in which a "Mr C", age 76, has run away from his nursing home.

Catcher in the Rye is still under copyright as Salinger is still alive - US law stipulates that a work enters the public domain 70 years after the author's death; New Zealand law covers 50 years after the author's death. Ginsburg says Colting argued his work "ought to be considered fair use because it was a transformation of the original book and he wasn't invading a market for Salinger because Salinger had persistently refused to write a sequel". In July a US judge made an interim order indefinitely banning the book's publication in the US.

While Colting is no literary threat to Salinger - the book received middling reviews - Ginsburg believes his argument for fair use is not enough. As long as a work is still under copyright, finding against unauthorised sequel writers is not a matter of "depriving the public of untold sequels by however many aspiring authors", she says. "When you think about what part of copyright is for, it's to encourage authors to create works in the first place." Indeed, the Statute of Anne, the UK's first copyright law, enacted in 1710, puts it thus: "... for the encouragement of learned men to compose and write useful books ..." If copyright is supposed to foster creativity, Ginsburg argues, then "knowing that your copyright will protect you from having your characters taken away from you and given new lives that might not be part of what you imagined for them, that might be part of the calculus of wondering whether it's worth going into this business".

"Fair use" has further been put to the test by US street artist Shepard Fairey, whose iconic "Hope" poster, which he created to support Barack Obama's presidential campaign, was revealed to be based on a photograph by freelance Associated Press photographer Mannie Garcia. The misconception with that case, Ginsburg explains, is that it was not, in fact, AP that brought a case against Fairey, but rather the other way around: AP suggested he buy a licence for the photo, Fairey brought a federal case in return, asserting his right to fair use.

Fairey further argued that before his poster became famous, the photograph was unknown, so he did Garcia a favour - in fact, he didn't attribute the original to Garcia until after Obama had already won the election and people started to question the poster's basis. Besides, Ginsburg says, "courts tend not to be impressed by, 'I did you a favour by infringing your work.'"

In the end, Ginsburg believes, it's down to the author of the work. "If an author wants to generate buzz by giving away copies for free, that's great. But it's really not anybody else's business."

Although the music and movie industries have worked to make sure there is a legal, online, decently priced mechanism for accessing copies, the traditional print media has been left floundering. "It's a really serious business-model problem," Ginsburg says, partly because the horse has already bolted. "It's really hard to compete with free," she says, and consumers have already got used to accessing publications for free, online.

The latest Vanity Fair (accessed through paid print subscription) features an interview by Michael Wolff with Rupert Murdoch on his plans to dial back the free material from his various publications: "Rupert to the internet: It's war!" trumpets the headline, and the story presents Murdoch as a luddite too wed to romantic notions of newsprint and ink. And profit.

Wolff, who wrote a biography of Murdoch, doesn't see it as being a business-model problem: newspapers have always made money from advertising, not the cover price of the paper, he argues, so it stands to reason the same can happen online. "Right now, the news business, supported for 100 years by advertising ... believes it must right away, this second, recreate itself with a new business model where advertising is just the cream on the top and where it's the consumer who pays the true cost of news gathering."

But, Ginsburg says, if both consumers and advertisers are refusing to pay, what then? "If people aren't going to subscribe to the newspaper and if the advertising that supported newspapers has gone elsewhere because today you advertise on Craigslist rather than in the classifieds, the framework that supported all that news gathering is disappearing."

And although publications are more or less free online now, the question of copyright is still raised by news aggregators. Wolff recounts that when he explained Newser, the aggregator he co-founded, which sweeps headlines to bring bite-sized news stories together, to Murdoch, he replied, "So you're stealing from me."

Google (company ethos: don't be evil) provides a similar service with Google News, which generally takes the headline and first two sentences of a story, runs its own advertising with it, and doesn't share the revenue with the original publications.

"It's sort of a close copyright question," Ginsburg says, "whether taking the headline and the first two sentences is enough [to constitute infringement]. I think some people would say that given the way news stories are typically written, where you put your best stuff in the first two sentences because people's attention spans might not get past that, that in fact it's not just information, it's quite creative how you structure those first two sentences.

"And if that's what Google is taking, then they are taking substantial copyrightable expression." But, she adds, "I'm not sure anybody wants to litigate that, because if you lose that, you'll lose very big." On the other hand, "a lot of newspapers structure their web pages to be picked up by Google - you can't have it both ways".

Ginsburg says she's watched a transformation over the years, from her students being fairly cavalier about file-sharing to having more sympathy with rights-holders.

"Every year I give a seminar in the journalism school at Columbia and I've watched the attitudes of the students shift from something of an 'information wants to be free' orientation to, I think, absolute panic.

"They're wondering if they're going to have a job, if places they worked at and plan to go back to are still going to exist, and one of them said he'd never before felt as though he is, in effect, competing with his readers."

Her advice for others panicking about the industry? "You could always go to law school."

This article was first published in the November 14, 2009 issue of the New Zealand Listener.

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