Thursday, August 08, 2013

IPSC breakout one: short papers

Copyright Specific Domains

Marta Iljadica, Graffiti Rules: Parallel Copyright Norms in the Graffiti Subculture

UK law; copyright subsists in a work of graffiti, though there are policy reasons that one might not enforce it—often these works qualify legally as “criminal damage.” The community is not concerned about copyright, but it is concerned with copying.  “Don’t be a toy.”  It’s not mindless vandalism; there are rules and the rules are there for a reason. Both process/placement and final product is regulated by the community (though people do contest the rules).

Rule #1: Write letters.  Collapse distinction between literary and artistic—they talk about “doing words,” and the visual the word makes.  Not necessarily about meaning of words, but shape.

Rule #2: have a style, don’t bite.  Put your own individuality into it. You have to be original, but you’re all drawing roughly the same thing. There’s lots of different ways to draw an arrow: what makes it your style/who you are?  One writer spoke of aesthetic dialect: it may all look the same generally, but people within the style look for minute shifts/differences.  It matters both because of the idea of personality and the idea of effort: if you bite, you’re appropriating the effort of another to get to the point where their style is recognizable. The rules protect individuals within the culture and also keep the community together as against other kinds of writing/painting.

Rule #3: get up/be visible. Let people see your name.  Currency isn’t money but fame.  Where do you put it?  If the point is to get up, why don’t you see graffiti everywhere, e.g. on cars?  But that’s rare.  Personal property: houses, churches, cars were off-limits—respect for people led to respect for these objects, but not trains/locations of large corporations.  Some writers said they wouldn’t tag a museum.  Acceptable intervention into a space that’s increasingly commercialized as a personal expression.

Original letter style reinforces subcultural belonging; having rules like “don’t tag a church” helps make the community cohesive.  The process is regulated as well as the final work. It’s not just style, but pleasure in putting up the work.

Q: is there any real sanction?

A: mostly social, but did have an informant report an assault.  Threat of violence in the background, but not nearly as prevalent as one might have thought.

Q: parallels to other industries?

A: Moral rights: does suggest that, for creative process, creators are interested in protecting personality and not economic rights.  “Negative space” literature.

Q: negative gossip backed up by a threat of violence seems consistent across different fields.  (Not the female dominated ones!)  Q about emergence of norms.  The illegality means they’re not able to take advantage of IP, but is there something more than the legal barrier to protection to explain why they choose self-regulation?

A: not necessarily true that they wouldn’t avail themselves of copyright protection, when works enter other spheres not their own, in which case they very much want to be paid. 

Q: is there something about this community that makes them rely on the community and not the gov’t?

A: they’re happy for it to remain illegal.

Q: what about altering existing graffiti?

A: can be frowned on—significant sign of disrespect. 

Q: is there a particular value to counter-ness of counterculture? Wants to be outsiders to formal law?

A: yes, it’s one of the strengths. Graffiti as resistance may be too simplistic, but there’s a component of that.

Q: demographics?

A: tried not to collect too much information, but there was a variety. Some people did say “graffiti saved me; I grew up on an estate and this gave my life meaning.”

Yolanda King, The Enforcement Challenges for Tattoo Copyright

Hangover II: Tattooist who did Mike Tyson’s facial tattoo sued Warner Bros. for reproducing the tattoo on another actor’s face.  Previous article examined copyrightability and fixation and concluded that tattoos were copyrightable, but noted the significant obstacles to enforcement.  Now turning to those obstacles.

As between artist and customer, unlikely that WFH argument can be made. Not employer/employee; tattoos don’t fall into the enumerated categories in her opinion.  What if the person has a number of tattoos? Can that be a contribution to a collective work?  That is a bit of a stretch (no pun intended). 

Joint works is a more complicated prospect, given flexible/fluid nature of tattoo creation, lots of input from customer; prior sketches common though not present for Tyson’s tattoo.  Nimmer’s test—only the result must be copyrightable—has been rejected by courts, but King supports it. Given customer’s input, customer should have rights and should be considered a joint author.

Focuses on display right.  If the tattoo artist is the copyright owner, what is the rule for the mobile human medium?  Proposed solution from Roberta Kwall—a type of public display right for the customer: the artist put the tattoo on the mobile medium and therefore loses control of subsequent displays on that person.

Q: moral rights—VARA?  If it’s a unique drawing on a human being, then what?

A: hasn’t looked at VARA, but Kwall does.

Betsy Rosenblatt: right to bodily integrity?  Does that factor in?

A: Nimmer did argue that the 13th Amendment was implicated (declaration thrown out by judge).  Does raise Q of limits on artist’s rights.  Focus would be more on 3d parties like Warner’s.  Modification or removal by subject would be outside the control rights.

Kwall: we see lots of ads for tattoo removal.  It’s the ultimate site-specific art, but what happens when the person wants to obliterate the tattoo?

A: hasn’t worked through, but doubts the artist could control this.  Might be more successful against an attempted modification.

Q: There are a handful of movie/videogame/ad cases about tattoos: real outliers.  Has interviewed tattoo artists, and none of them thinks that they can control an individual client rather than a company like WB using a tattoo in an entirely different context, or using a representation of the client in a video game. They respect bodily autonomy.  They’re getting along just fine without the law.

A: will arise more often as tattoos become marketable.  When a 3d party gets involved.

We ran out of time for my comment: From what I’ve read, tattoo artists are perfectly willing to create tattoos copied from existing nontattoo works, e.g., a tattoo of the Beatles’ Abbey Road album cover, taking the position that the tattoo form makes it original on the part of the tattoo artist.  I’m curious about this because it seems to illustrate something going on with the norms discussed by both presentations: Jennifer Rothman criticizes best practices statements because they reflect the norms of the user community and discount the similar interests of outsiders.  It seems to me that many of these norms investigations discover communities doing the same thing: They get to use other people’s stuff, but other people don’t get to use theirs.  (Even saying WB was using the tattoo in an “entirely different context” in Hangover 2 is special pleading—the use of the tattoo was a joke about Mike Tyson; likewise saying that the videogame avatar isn’t the athlete is to say that you’re not allowed to represent the truth about the athlete digitally.)  This is natural enough—we see our own creative contributions more easily than others’—but should not go uninterrogated.

Copyright Theory

Robert Heverly, Buying and Selling the Ephemeral: A Transaction Costs Justification for

the Form of Copyright Law

Transacting in relation to copyright works is a critical part of the copyright system. If you have a right to exclude with no right to transact, the right is not particularly useful.  Transaction costs should be a specific part of the discussion of the scope of copyright.  Transaction costs, classically, aren’t the costs of putting the thing together but costs of dealing once you have the thing; but he wants to include both in his discussion.  If a work is copyrightable, we know there is an author, but must find them.  Determining ownership where uncertain increases transaction costs; extent of rights to be granted; terms of deal (how much money, etc.).

What can influence transaction costs in copyright markets? Norms, markets, law, trust, experience, relationships.  So what does it mean to focus on lower transaction costs?  Higher perceptions of risk are more expensive, limiting transactions.  Coase’s starting point is clear entitlements.  Uncertain rights figure into property rights: fair use is one source; ownership of rights can often create uncertainty (WFH, joint authorship, etc.).  Affects not just strength of right but status in negotiations.

Term extension: no discussion of transaction costs created by term extension.  But even with a new author writing now, we can anticipate trouble finding an owner before the copyright expires.

Compulsory licenses: Congress steps in to avoid licensing problems.  Cablevision proposed a different method for calculating cable compulsory license; Copyright Office rejected it, criticizing the method for being complicated and increasing transaction costs.

Ty v. Perryman: says that fair use economizes on transaction costs by allowing reviews without publisher permission, which publishers want so that they don’t have to worry about evaluating each use.  Posner was focused on giving users an “out,” but fair use in general is high on transaction costs.  (Hmm. I think that really depends on whether you have counsel or not!)

Q: Term extension—Congress was told that clearance/orphan works would be a problem; they just ignored that.

Q: registration?

A: can’t dump Berne, but lack of registration certainly increases transaction costs.

Q: termination of transfer—seems to be intentional raising of transaction costs.

A: should spend some time on that.

Q: if lack of knowledge of rightsholder is a problem, does explicit warranty of title/indemnity work?

A: yes, he’s a big fan of getting insurance involved.  That risk must still be priced, but it helps.

Zahr Said, Comparing Substantial Similarity and Likelihood of Confusion:  A Metacritical Analysis of Copyright and Trademark

OK, timing didn’t work out here—I missed most of this.  I came in when Mark McKenna was saying that the likely confusion test is incoherent, considering factors that serve differing ends and that therefore allow courts to pick and choose/doesn’t tell courts which ends are most important.

A: hears that, but has been astounded by copyright cases in which courts are conclusory about evaluating similarities/differences (without a structure that says what the meaning of genre is, for example).  TM cases can be intellectually dissatisfying, but at least they had factors. Are there instances of conclusory reasoning/underevidenced/underargued in TM cases where you think having more arguments would be a good thing?  Copyright cases are completely unpredictable because of the methodological abdication/vacillation. 

(The grass is always greener!  I suspect one big problem here is the Dan Kahan motivated cognition issue: it’s not so much the principles that are missing as disagreement on what is convincing as a factual claim.)

Brad Greenberg, Calibrating the Economic 'Engine of Free Expression'

Should focus on costs of creation, distribution, and reproduction and less on incentives authors need as reward.  Wants to create a taxonomy of works—e.g., remixes, which don’t need the same incentives.  Identify costs in various categories, from low to high.  Implications: copyright doesn’t work best as one size fits all. 

Have to work on averages, even though some writers can write very fast and others take 3 years and a number of drunken binges to get something done.

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