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Intellectual Property

All articles with the "Intellectual Property" tag.

Published: Sun, 22 Apr 2018 00:00:00 -0400

Last Build Date: Sun, 22 Apr 2018 11:04:56 -0400


In Defense of Musical Ripoffs

Fri, 12 Jan 2018 14:30:00 -0500

Radiohead is reportedly suing Lana Del Rey because her song "Get Free" sounds a lot like Radiohead's old hit "Creep." As Reason's Ed Krayewski noted earlier this week, Radiohead itself was successfully sued a while back because "Creep" sounds a lot like the Hollies' "The Air I Breathe." I don't think anyone has ever sued the Hollies for "The Air I Breathe," though I wouldn't be surprised to learn that there's a Roy Orbison song somewhere that sounds almost exactly like it. The courts have been getting more strict about this kind of thing recently, with Marvin Gaye's estate winning a case against Pharrell Williams and Robin Thicke over a song that copied the "feel" but not the actual notes of Gaye's "Got to Give It Up." In a better world, the law would be growing more tolerant of this sort of imitation, not more restrictive. Much of the evolution of music is driven by people making tiny tweaks as they slavishly copy each other. A pop world without any plagiarism would be barren indeed. This is most obvious when it comes to musical patterns that have been around too long for anyone to hold a copyright on them. (If someone actually owned the I-IV-V blues progression, he could buy Bill Gates with enough left over to make a down payment on the Moon.) When Jay Miller wrote and Kitty Wells recorded "It Wasn't God Who Made Honky Tonk Angels," for example, they didn't hide the fact that they were using the exact same melody as Hank Thompson's hit "The Wild Side of Life"; their song, after all, was a direct response to and comment on Thompson's record. But the tune was a lot older than "The Wild Side of Life"—that same series of notes had also been used in "Great Speckled Bird," "I'm Thinking Tonight of My Blue Eyes," and other old country songs. Indeed, the melody goes back to England. A lawsuit would have disappeared into a never-ending search for the original composer. But not every pilfered melody comes from the public domain. Listen to "Express Yourself," a top 5 R&B hit for Charles Wright and the Watts 103rd Street Rhythm Band in 1970. Then listen to Jean Knight singing "Mr. Big Stuff," the #1 soul single of 1971. Seriously: Click the links and listen. They're the same goddamn song. "Mr. Big Stuff" came out less than a year after "Express Yourself," with a completely different set of songwriters credited; and yet nobody sued. Who knows: Maybe there's some older ur-funk record that Knight and Wright were both swiping. If so, Knight kept on swiping it: She recorded several barely-masked rewrites of "Mr. Big Stuff," because why mess with success? Song-clones like that aren't especially unusual, and a good DJ can spend hours seguing from one of them to another. But I'll give you just one more example—probably my favorite one. Here's Lyn Collins, a protégé of James Brown, singing a song called "Me and My Baby": src="" allowfullscreen="allowfullscreen" width="560" height="315" frameborder="0"> You know that old South Park joke that if you want to write a Christian pop song, you should just take a love song and change every "baby" to "Jesus"? Here's country star Tom T. Hall seeming to prove the point: src="" allowfullscreen="allowfullscreen" width="560" height="315" frameborder="0"> He doesn't quite prove the point, because I think he wrote his song first. Both records came out in 1972, but "Me and Jesus" grazed the bottom of the Billboard charts in May; "Me and My Baby" didn't show up in Billboard til the fall. So this is probably a case of someone changing "Jesus" to "baby," not the other way around. The intro to Collins' record certainly sounds like she had church on her mind. But I'm not going to complain about Collins ripping off Hall. You know why? Because Collins' song is better. Tom T. Hall is one of my favorite songwriters, but "Me and Jesus" isn't one of his better efforts. The lyrics are kind of rote, and the melody is gospel-by-numbers. (An exercise for the reader: Extend the chain of ripoffs backward by finding some older gospel r[...]

Copyright Craziness: Radiohead Claims Lana Del Rey Ripped Off Its Song

Tue, 09 Jan 2018 11:53:00 -0500

Musicians, or their lawyers, have increasingly sensitive ears, leading them to hear strong similarities between what most people would consider different songs. The results could have a chilling effect on creativity.

The latest example: Radiohead is suing singer-songwriter Lana del Rey, she says, for supposed similarities between her recent song "Get Free" and Radiohead's 1990s hit "Creep." The two tracks don't sound very similar to me, but here is a comparison:

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It seems a weaker case even than when the estate of Marvin Gaye sued the creators of "Blurred Lines," claiming the hit 2013 song was a rip off of Gaye's "Got to Give It Up." Those two songs undeniably shared something of a sound, though as Pharrell Williams explained in his testimony, they diverged considerably in the details. That should have been enough for the judge to dismiss the case. Unfortunately, the court ruled in favor of Gaye's estate, awarding it $7.4 million in damages, which Gaye's family has been fighting over ever since.

A few months before that, representatives for Sam Smith and for Tom Petty and Jeff Lynne came to an agreement to share song-writing credits and royalties for Smith's "Stay With Me," which had some resemblances to Petty and Lynne's "I Won't Back Down." Smith claimed never to have heard the older song, but he agreed to settle anyway.

According to del Rey, Radiohead wants "100 percent" of her publishing for the song. She told concertgoers yesterday that she may have to pull the song from future pressings of her album Lust for Life.

Radiohead itself was successfully sued for ripping off a chord progression and a melody from the Hollies' 1972 song "The Air That I Breathe." The song that allegedly borrowed the Hollies' music? None other than "Creep":

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Maybe it's a small miracle Major Lazer hasn't come after Del Rey for the title. They have a song also called "Get Free" on their 2013 album Free the Universe. Uh oh.

America's Exit May Have Improved the Trans-Pacific Partnership, but Not for America

Tue, 14 Nov 2017 10:56:00 -0500

Donald Trump may have pulled the U.S. out of the Trans-Pacific Partnership, but the trade deal didn't die: Last Saturday in Da Nang, Vietnam, the 11 remaining countries announced that they had agreed on the core elements of the pact. Known officially as the "Comprehensive and Progressive Agreement for Trans-Pacific Partnership" and colloquially as TPP 11, the deal removes many tariffs and other barriers to exchange across borders. That said, it would be better described as managed trade than free trade. Free trade in the ideal sense wouldn't require a 5,500-page agreement, let alone some of the provisions that worked their way into that document. Interestingly, America's exit has meant the suspension of some of the more egregious of those provisions. It was the U.S. that pushed the document's original rules for intellectual property, which have been criticized for maximizing copyright terms and eroding privacy rights. Similarly, the U.S.-proposed approach to pharmaceuticals would raise the cost of medicine (and restrict rather than free trade) by extending a patent by 20 years when a new use is found for a drug. The some of the agreement's Investor-State Dispute Settlement clauses have also been suspended. These would have allowed foreign corporations to sue countries if their investments are affected by the home government's policies, an idea that has come under fire from multiple directions: Liberals see it as an appeasement to corporate power, conservatives claim it will weaken national sovereignty, and libertarians have argued that it creates special legal rights while doing little to liberalize trade. Without Washington in the mix, the TPP is a simpler and in important ways better agreement. On the other hand, now the average American won't receive any of the benefits. According to a 2016 report from the International Trade Commission, both agriculture and beef stood to gain substantially from TPP, as did the services sector of the American economy. And American farmers will be put at a disadvantage if their products face tariffs that Canadian crops won't. The revised deal will not have the impact on global trade that the original would have had. With the United States' involvement, the agreement would have encompassed 38.2 percent of global GDP. Without the U.S., the figure is 13.5 percent. Yet TPP 11 would still represent a change in the geopolitical landscape. "Without the United States in the TPP, and with no real promise of new trade agreements for the next few years, the economic center of gravity will continue shifting across the Pacific," says Dan Ikenson, director of trade policy studies at the Cato Institute. "I think it's better for the world (including the United States) that TPP-11 proceeds because the United States is no longer a reliable champion of liberalizing trade through the adoption of sound rules." "The world will move on, even if we're stuck in neutral," says Clark Packard, federal affairs manager and policy counsel for the R Street Institute. "Hopefully we'll eventually come to our senses and rejoin." Ideally without dragging any bad ideas back into the mix.[...]

Feminist Porn Isn't Free

Thu, 21 Sep 2017 13:35:00 -0400

"Our goal was to undress Pinterest, not dress up Pornhub," the press kit for Bellesa, a Montreal-based web startup, proclaims with lofty feminist ambitions. A recent writeup on Bustle hails the (NSFW) site as "good both for women and for men who want something outside what our patriarchal, heteronormative society dictates they should like." Little of Bellesa's video content, however, distinguishes it from other porn sites; it's Pornhub in a Pinterest wrapper. Nothing wrong with that per se—in fact, a porn platform with serves up a variety of videos (not just the softcore, romantic stuff that's often assumed to appeal more to women) with a less aggressively masculine interface would probably do well. But for a site to live up to its idealistic, feminist branding, it needs to account for the labor and intellectual property of those producing the content—the performers, directors, and others who actually make the adult videos—whether that means making content distribution deals with independent sex workers or ethical-porn production companies; producing content in house; or working out some sort of profit-sharing platform for user-created content. Bellesa—Catalan for beauty—does none of these things. Canadian magazine The Link describes founder Michelle Schnaidman's role as curating or facilitating porn—"she makes it available for those who seek it." It solves what Bustle writer Joanna Weiss described as the "pesky paywall" problem by featuring porn clips cribbed from all around the web, without paying or promoting the people who made them. Bellesa also asks women to upload their own "erotic stories, sexy photos and GIFs, and feminist blog posts" for free, for the fun of it. Apparently all it takes to find feminist pornography is being willing to band together with other feminists and become unpaid porn stars, erotica writers, and digital content producers for the cause! Shnaidman assures women she created this porn clearinghouse for only the best and most feminist reasons. "We need to put an end to slut-shaming and to the antiquated idea that sex is something men do to women," she told Bustle. "Or something women do for men. Because it's not. Once society finally accepts the notion that women like sex (like, really like sex), we can begin shattering the stigma surrounding female sexuality—and of course porn." The Bellesa website decries the "male-dominated paradigms that have defined sex on the internet" so far, and porn that is "derogatory and exclusionary towards women." "The market for services meeting women's sexual needs is often neglected due to the myth that women are less sexual than men," explains Bustle. But on Bellesa, there will be "relatable" bodies, performers expressing "authentic" pleasure, and as many shots of nude men as women. Refinery29 even recommends women against signing up for a non "female-friendly" porn subscription service and instead find "free porn" on Bellessa. Both the women's media and Shnaidman here showcase problems (long) prevalent among mainstream feminists: a willingness to throw certain sorts of women under the bus when it's convenient; an apparent inability to consider how creating some preferable condition for some normative class of women will affect those not in this class; and a tendency to embrace personal liberation on the backs of more marginalized groups. Several adult-film producers have already asked Bellesa to take down their content. Hi, @BellesaCo you have content created by us and the lines we distribute on your site. Please remove it. Thanks. cc: @bustle @suzannahweiss — Wicked (@WickedPictures) September 21, 2017 Hi, @BellesaCo you call yourself "ethical" and stole my content & never credited me as the writer/director. cc: @bustle @suzannahweiss — Jacky St. James (@jackystjames) September 20, 2017 And sex workers on social media have been protesting the feminist-friendly narrative around the pirated-video platform. It's [...]

Canada Claims Authority to Censor Your Internet Searches

Wed, 28 Jun 2017 16:15:00 -0400

The Canadian Supreme Court today ruled the country has the authority to demand Google censor and remove links to certain web pages or online content. The idea that governments can force Google to deindex links to pages is unfortunately not new (see the European Union's "right to be forgotten"). What matters internationally in this case is the government is forcing Google to remove links from searches regardless of where the Internet user is. That is to say: Canada is demanding the authority to censor the internet outside of its physical borders and control what people who are not Canadian citizens can find online. Today's court ruling declares that because the Internet doesn't have any borders, when Canada decides Google has to censor content it should be a global order: "The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally." The case involves copyright and intellectual property claims. A tech firm was accusing another firm of stealing and duplicating one of its products and selling it online. Google was asked to deindex the links to the firm accused of stealing so that it wouldn't show up in search results. Google complied with court orders, but only for searches from within Canada. Canada's Supreme Court sees geographical limits (even virtual ones) on its ability to censor speech as "facilitating" illegal commerce rather than a speech issue. Here's a paragraph from the ruling that should give folks pause: This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods. Canada has hate speech laws. Does it follow that Canada should require Google to deindex pages containing what it deems "hate speech" in the United States? If Canada does not because it acknowledges limits to its reach as a nation is it "facilitating" something unlawful? The court notes Google removes links due to court orders based on content and still doesn't seem to see an issue in a country's boundary of authority: [Google] acknowledges, fairly, that it can, and often does, exactly what is being asked of it in this case, that is, alter search results. It does so to avoid generating links to child pornography and websites containing "hate speech". It also complies with notices it receives under the US Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2680 (1998) to de-index content from its search results that allegedly infringes copyright, and removes websites that are subject to court orders. The court, in justifying its ruling, is unwittingly bringing up problems with the Digital Millennium Copyright Act (DMCA). The DMCA is intended as a tool for fight online piracy and intellectual property theft by making it easier to remove copyrighted material through an ownership claim process. It is also prone to abuse. People abuse the DMCA's "take down" process in order to try to censor speech, critiques or commentary, they find objectionable. It can be as minor as trying to censor critical video game reviews, or extend as far as criticizing another country's leaders. Ecuadorian officials once attempted to use the DMCA to censor criticism of government actions. Google itself has stepped in to try to help users fend off abusive DMCA take-down requests. Invoking other forms of legally recognized internet censorship is not, perhaps, the defense Canada's Supreme Court is looking for. A closer examination highlights the potential for abuses. And claiming the authority to censor Google links everywhere in the world is a decision begging to be abused. Read the court's ruling here. France has attempted similar international censorship methods.[...]

Gene Simmons Wants to Trademark a Horns Hand Sign

Tue, 20 Jun 2017 14:20:00 -0400

(image) Kiss bassist Gene Simmons is trying to trademark the hand sign made by holding the thumb, index finger, and pinky up while holding the middle finger and ring finger down, sometimes known as the Sign of the Devil. His application illustrates how artists often abuse intellectual property privileges, using them not just to secure their own work but to try to curb the work of others.

The gesture that Simmons is claiming is also American Sign Language for "I love you." In a music context, a slightly different version of the gesture—with the thumb holding the middle and ring fingers down—was popularized by Black Sabbath's Ronnie James Dio before Simmons adopted it. (According to Variety, Dio said in the 1990s that he picked up the gesture from his Italian grandmother, who used it when someone would give her or her grandchild the "evil eye.") The thumb-down version of the gesture is also used by fans of the University of Texas at Austin.

Simmons argues that his gesture is substantively different. "What I started [before Dio] involved the thumb outstretched," he said in the '90s, according to Variety. "Check our first poster, in 1974. I started doing it because of comic book artist Steve Ditko, who created both Spiderman and Dr. Strange, who both used the same hand sign. Spiderman used it upside down when he shot out webbing, and Dr. Strange used it as a magic incantation. I was paying homage." Simmons said that it wasn't until later that he learned the symbol was ASL for "I love you."

Simmons' acknowledgement that his gesture was borrowed from other pieces of intellectual property, namely Spider-Man and Dr. Strange, ought to be enough to to reject his application—and should've been enough to convince him not to apply in the first place.

Intellectual property attorney Victor Sapphire told Variety that Simmons would have a tough time defending his application because the gesture would have to be associated with a "single source of entertainment services." That isn't the case for this gesture, which has many uses.

"While there certainly may be a route to registration for this mark, this question may ultimately render the mark unenforceable, in which case the process of applying for registration will appear to have functioned as either another of Mr. Simmons' brilliant publicity-generating moves, a vanity exercise, or perhaps a bit of both," Sapphire said.

Simmons' application ought to spark a conversation on the need for IP and trademark reform. Complex laws, often promoted by vested interests, do more to thwart the progress of arts than promote them. Spider-Man and Dr. Strange could tell you a bit about that, too: Marvel shares a trademark on the term "superhero" and has tried to use it to suppress other comics work.

Bonus video: "How Should Libertarians Think About Intellectual Property?"

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A U.N. Effort to Make Cultural Appropriation Illegal?

Wed, 14 Jun 2017 13:35:00 -0400

Diplomats from around the world are meeting in Geneva this week to discuss how intellectual property laws can stop the "misappropriation and misuse" and "offensive and derogatory use" of "traditional cultural expression." Or as the CBC put it: They're asking whether "cultural appropriation" should be "illegal worldwide." Thankfully, that's just a worst-case scenario. Bureaucratic rot makes it unlikely that anything will get that far. The meeting is being held by the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), a group established in 2000 by the World Intellectual Property Organization, a United Nations agency. The committee's aim is to create legal protections for "traditional cultural expressions," which can include "music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions." In the 17 years since the IGC was established, it has yet to establish any actual substantial regulations. What sort of appropriation does the committee want to stop? University of Colorado Law Dean James Anaya, an indigenous leader and a technical analyst for the IGC, points to products that purport to be made or endorsed by indigenous groups but aren't. At the Geneva meeting, Anaya offered Urban Outfitters' "Navajo line" as an example. The Navajo Nation actually brought suit in U.S. court against Urban Outfitters over that line of products in 2012, and the case was settled out of court last year. It's unclear how an international intellectual property bureaucracy would improve the situation. But it's clear how it could create new avenues for rent-seeking. The World Intellectual Property Organization generates revenue from fees, such as the ones it charges for international trademarks. Any system the IGC creates is likely to include a similar international mechanism for registering whichever "traditional cultural expressions" get protections. Such a setup could have a chilling effect on any commercialization of folklore, even by members of the original indigenous communities. After all, the same forces of globalization and decentralization that have made intellectual property laws more difficult to enforce offer the potential to drastically expand native producers' reach. KPMG has noted, for example, that the internet offers a "new potential for indigenous Australians in regional and remote areas to access global audiences." An IGC-style intellectual property regime would inevitably require such entrepreneurs, not just the big corporations accused of cultural appropriation, to get additional approvals for their activity. Meanwhile, the same governments with long histories of abusing indigenous populations would be responsible for deciding who belongs to such populations and who faces criminal penalties for not meeting the governments' definitions. Kathy Bowrey, a law professor at the University of New South Wales in Australia, tells Reason that she would love to see the IGC succeed in setting up an system that genuinely protects indigenous culture. But she has no hopes that it will. Given the "racist practices that mark everyday lives of First Nations people domestically," she says, "I'm not sure why there is an expectation that these states would operate differently on the international stage." One area being negotiated this week might be an exception to the above complaints. The IGC is also looking at "traditional medicines," which outside companies have a history of incorporating into drugs they then patent for themselves. In this case, the committee aims to "avoid the granting of erroneous patents," a goal that would limit rather than expand the excesses of intellectual property laws. Of course, the IGC might not succeed in adopting any rules at all. Its members hope to organize a major diplomat[...]

Theft: A History of Music

Thu, 01 Jun 2017 12:00:00 -0400

"Classical musicians borrowed from each other all the time!" a historian declares. "It's like an insane game of musical Chutes and Ladders." An actual game of Chutes and Ladders follows, with annotations explaining where Beethoven borrowed from Handel, Brahms from Beethoven, Mahler from Brahms. Sampling and remixing, we're reminded, are a lot older than hip-hop.

That sequence comes about a fifth of the way through Theft: A History of Music, a 259-page comic about an art form's evolving interactions with markets, technology, and the law. With a scope that stretches from medieval troubadours to modern rappers, Theft shows not just how common borrowing has been but how music is shaped by the social context that produces it. In the baroque era, for example, composers created pieces for particular occasions, so it was widely seen as acceptable to revise an old tune for a new setting. Later composers started to make money from sales of sheet music, and—in a related development—"original genius" became more prized.

The text does its share of borrowing itself: There are allusions to everything from Kafka to The Jetsons. Some of the jokes fall flat, but the book has only one big drawback: It can't play the music it describes. Some creative borrower should turn it into an animated movie.

Lucasfilm Suing Lightsaber Academy, The New York Jedi for Star Wars Trademark Infringements

Tue, 18 Oct 2016 14:35:00 -0400

Lucasfilm, a subsidiary of the Walt Disney Company and the creator and producer of the Star Wars film, has filed a federal lawsuit over intellectual property infringement against the proprietor of the Lightsaber Academy, which describes itself as "a consortium for academic, stage combat, and sport dueling lightsaber instructors" and the New York Jedi, "a community of Cosplayers, martial artists and teachers, who share practical Stage Combat techniques oriented toward Light Sabers." The lawsuit allege that the proprietor, Michael Brown, and the company that runs the two enterprises, Thrills and Skills Inc., are infringing on registered trademarks belonging to LucasFilm (namely, "lightsaber" and "Jedi") as well as engaging in unfair competition, diluting the Star Wars trademarks, and "cybersquatting" by having registered websites using the trademarked words. The lawsuit singles out the Lightsaber Academy's practice of selling instructor and director certificates which "purport to license others to offer additional 'Lightsaber' classes," as well as Brown's attempt to register a trademark for "Lightsaber Academy," which seems like a particularly provocative move from someone whose business relies on intellectual property restrictions not being enforced too strictly. In addition to the claims of misappropriation of the words lightsaber and Jedi, the lawsuit also claims the logo used by the Lightsaber Academy is an infringement of the Jedi logo created by Lucasfilm: Attorneys for Lucasfilm also argue in the lawsuit that because of sales and advertising by Lucasflim and the companies licensing the use of their intellectual property as well as "longstanding consumer recognitions," the trademarks themselves "are widely recognized as source-identifiers of, and for, authorized Lucasfilm products and services." The argument is specious—it's hard to imagine a reasonable person assuming a product or service was licensed by Lucasfilm because it has the word lightsaber or Jedi in it, both being words that have entered a cultural lexicon wider than the world of Star Wars. The near universal practice of explicitly identifying licensed merchandise as such would also suggest that most people do not assume merchandise is licensed simply because it is in some way related to a licensable franchise. Global retail sales of officially licensed merchandise rose 4.2 percent in the last year in part on the strength of the new Star Wars film, according to the Licensing Industry Merchandisers Association, as Variety reported when the industry group held their annual licensing expo this summer. The lawsuit also claims that Brown and the other defendants "repeatedly sought license or authority from Lucasfilm to engage" in their activities, and that they received multiple cease and desist letters from Lucasfilm. The websites for the Lightsaber Academy and the New York Jedi include disclaimers about not being affiliated with Lucasfilm, Star Wars, or Disney. "And while we are not specifically Star Wars-centric, we do rely heavily on many of the principles and training used by that of the Jedi Order," the "about" page of the New York Jedi website explains. "Mental focus, martial arts training, universal knowledge, and creating your own costume, err… robes." The lawsuit was filed Friday in a U.S. district court in San Francisco. The defendants have not yet commented publicly on the suit. Watch Reason TV's Star Wars Libertarian Special below: src="" allowfullscreen="allowfullscreen" frameborder="0" height="340" width="560">[...]

Hollywood Takes on Fan Fiction

Sun, 16 Oct 2016 06:00:00 -0400

Since its launch in 1966, Star Trek has inspired creativity among its fans. Besides the soon-to-be six live-action television series and 13 feature films that make up the official canon, outsiders have invested time and treasure to produce myriad unofficial creations. Early on it was mostly short stories, comic books, and art. But those outlets soon evolved into fan-made film and video productions. In 1974 a carpet layer from Michigan spent $2,000 to build a replica of the Starship Enterprise bridge and made Paragon's Paragon, one of the first serious Star Trek fan movies. In 1985, a fan convinced George Takei, who played Sulu on the original series, to reprise the role in Yorktown: A Time to Heal. In subsequent years, putting original cast members in fan productions became increasingly common, with Walter Koenig (Chekov) and Nichelle Nichols (Uhura) starring in the feature-length Star Trek: Of Gods and Men in 2007. For decades these efforts were largely welcome. "It is now a source of great joy for me to see [fans'] view of Star Trek," wrote creator Gene Roddenberry in the foreword to Star Trek: The New Voyages, a compilation of fan-written stories. "I want to thank these writers, congratulate them on their efforts, and wish them good fortune on these and further of their voyages into other times and dimensions." Paramount and CBS, the Star Trek rights holders, took a hands-off approach so long as the fans' products didn't portray the franchise in a negative or obscene light. That all changed with Prelude to Axanar, a professionally shot, produced, and acted short fan film that received almost 2.5 million views on YouTube. That success allowed writer/producer Alec Peters to raise more than $1 million through crowdfunding sites Kickstarter and Indiegogo to move forward with a feature film. He snagged Richard Hatch, who played Captain Apollo in the original Battlestar Galactica, to be his antagonist, and Takei plugged the project on social media. Suddenly, Axanar looked less like fan fiction and more like competition. CBS and Paramount sprung into action, alleging copyright infringement and demanding an immediate stop to production. Peters and his team claim that Axanar is covered by the fair use doctrine, which allows for incorporation of copyrighted work when that use is "transformative." But lawyer Dean Cheley—whose firm has made fair use claims against such powerful forces as Disney and Yoko Ono—says it's "unlikely" that fan films like Axanar fall within the doctrine's protections. Nonetheless, he adds that "while legally I believe that CBS may have a legitimate claim on its hands, I don't think it's in their best interests to pursue it. You don't want to police this sort of fanzine to such extent that you're disenfranchising your audience." Battlestar Galactica veteran Hatch agrees. "Fan films can bring us stories that the studios aren't interested in doing, explore characters that the studios don't put a lot of energy on, and in a sense flesh out the world and build even more interest," he says. "So that when the movies from the studios come out, it actually generates more money, more fan interest, and the fan community is enlarged as a result of these really quality fan films." With the lawsuit pending, production on Axanar has ground to a halt for now. But Peters and his team think technology and history are on their side. After all, in the wise words of Spock, "Change is the essential process of all existence."[...]

Copyright Case Against 'Stairway to Heaven' Goes Down Like a Lead Zeppelin

Thu, 23 Jun 2016 14:55:00 -0400

Even Led Zeppelin is innocent sometimes. A jury just ruled that Jimmy Page and Robert Plant did not plagiarize the Spirit song "Taurus" when they composed the classic-rock warhorse "Stairway to Heaven."

There is no question in my mind that the jurors reached the right decision. I say that even though the two songs undeniably open with similar guitar riffs, as you can hear in this side-by-side comparison:

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There is a difference between being similar and identical, and there are some clear differences between the two guitar parts. That in itself might not have been enough to save Zeppelin in the wake of last year's "Blurred Lines" case, when Marvin Gaye's estate successfully sued Pharrell Williams and Robin Thicke over a song that copied the "feel" but not the actual notes of Gaye's "Got to Give It Up." But in this case, riffs that sound vaguely like the start of "Stairway" have been around a lot longer than the Spirit record. Davy Graham's version of "Cry Me a River," recorded a decade before "Taurus," is a case in point:

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But why start in the '50s? Giovanni Battista Granata composed "Sonata di Chittarra, e Violino, con il suo Basso Continuo" three and a half centuries ago, and you can hear an obvious precursor to the "Stairway" opening about 35 seconds into the piece:

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If Led Zeppelin ripped off Spirit, then both bands ripped off Granata—and Granata's work is in the public domain, as are any other examples of this musical idea that precede him. So even under the far-too-restrictive set of rules that make up modern copyright law, everyone is free to do as they please with this age-old sequence of sounds. Led Zeppelin's members may be guilty of all kinds of criminal debauchery, depending on how much credence you put in that copy of Hammer of the Gods your pals were passing around in high school. Hell, there are genuine cases of them lifting from other artists' work. But in this instance, I think it's clear that there's no infringement.

Thankfully, the jury agreed. As Aram Sinnreich wrote earlier this month, "if the bar for [proving] copyright infringement gets lower, then the risk of getting sued gets higher—especially in the world of pop, where music tends to be both highly formulaic and highly profitable. Greater risk means higher cost, which means that only the companies with the deepest pockets and the best lawyers can afford to bring new music to market." A loss today would have been a loss for bands with far less cash and influence than Led Zeppelin.

Star Wars: The Remix

Wed, 25 May 2016 12:25:00 -0400

(image) When Star Wars: The Force Awakens hit theaters late last year, the critics' most common complaint about the film held that it is a barely-remixed remake of the original Star Wars. This argument attracted the attention of filmmaker Kirby Ferguson, whose much-viewed 2010-11 web series Everything Is a Remix made the case that creativity has always involved sampling and repurposing the art that preceded you.

So this week Ferguson released a postscript of sorts to his series, titled Everything Is a Remix: The Force Awakens. It contrasts the ways J.J. Abrams remixed older material to make the new Star Wars movie with the ways George Lucas remixed older material to make the original; it offers an argument about what it takes for remixing to produce something satisfyingly original; and it includes a brief cameo by Reason's own Peter Suderman, or at least by Peter's byline.

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For yet more on Star Wars and remixes, read Amy Sturgis' Reason feature "Star Wars, Remixed." And for more from Ferguson, check out his current web series, This Is Not a Conspiracy Theory.

Paramount Objects to Klingon Language Amicus Brief by Language Creation Society

Thu, 05 May 2016 11:10:00 -0400

(image) Paramount Pictures, which is embroiled in an expansive copyright lawsuit against Axanar Productions over the latter's Star Trek fan film, has filed an objection to the Language Creation Society (LCS) filing an amicus brief regarding the copyrightability of the Klingon language.

Paramount argues (PDF) the LCS's brief came too late in the process, was too long, and "attempts to have the Court resolve factual issues on a motion to dismiss based on inadmissible hearsay." Hearsay, in this case, refers to the context provided by the LCS for how Klingon has become a "living language."

"It is undisputed that Klingons are copyrightable characters, and have been depicted in the Star Trek Copyrighted Works in a distinct and recognizable manner," Paramount argues in its formal opposition to the brief. Paramount insists that the fictional Klingon language "is part of the depiction" of copyrighted Klingon characters and that it's "the use of the Klingon language in this context that will be before the Court… not the copyrightability of languages in general."

Irrespective of that, Paramount adds, the issue of whether Klingon is copyrightable "is certainly not before the Court on the present motion to dismiss."

In their response (PDF), the LCS's attorneys, led by Marc Randazza, a First Amendment lawyer and friend of Reason who is representing the LCS pro bono, point out that the standard for the admissibility of an amicus is "simply whether it will assist the Court."

"The evidence and arguments provided by Amicus Language Creation Society's brief will assist the Court in determining the question of whether the Klingon language is entitled to copyright protection," LCS's reply argues. "It is not premature for the Court to make this determination at the motion to dismiss stage because this is a legal question; if a spoken language is not entitled to copyright protection as a matter of law, then Plaintiffs' claims are properly dismissed insofar as they are based on Defendants' use of the Klingon language."

The LCS's attorneys also dispute Paramount's assertion that they are seeking an advisory opinion.

"Plaintiffs steadfastly assert that they 'own' the Klingon language,and there is no need for a fact-intensive 'substantial similarity' analysis, as Plaintiffs insist, to determine whether Klingon can belong to anyone," the reply argues. "This issue is properly before the Court, and the Court may properly determine at this stage whether Klingon is copyrightable."

The LCS also points out that between all of Paramount and Axanar's motions, less than two pages focus on the issue of the copyright claim on the Klingon language. It argues that this makes the brief relevant to an issue before the court, and that even if the brief isn't used now, it should be held "for use during later stages in the proceeding," since the issue of Klingon's copyrightability "will need to be dealt with (unless Plaintiff drops their claim to won Klingon) at some point in this case."

Paramount Copyright Claim on Klingon Language Challenged in Klingon Language

Thu, 28 Apr 2016 13:50:00 -0400

The Language Creation Society has filed an amicus brief challenging Paramount's claim of copyright over the Klingon language in its lawsuit against Axanar, a fan-produced film set in the Star Trek universe. Marc Randazza, a top notch first amendment attorney who has helped out Reason on copyright issues, and Alex Shepard filed the brief yesterday. Conlanging is the process of constructing a language, and Klingon is a popular conlang which originated with lines of dialogue and a dictionary written by Marc Okrand, the linguist who created Klingon for Star Trek III: The Search for Spock and the two movies after that. The amicus brief is peppered with Klingon words and phrases, even quoting The Big Lebowski in Klingon, "not Qam ghu'vam" ("This will not stand, man") in response to the idea that anyone expressing anything in Klingon would be a copyright infringer if Paramount owned the actual language. The brief mentions Alec Speers, whose dad taught him Klingon at an early age. "To claim copyright in a language is to claim ownership over all possible thoughts and artistic expression that might employ that language," the attorneys argue in the amicus brief. "If not ownership, such a claim at least provides some support for the idea that the copyright owner could, at some point, simply pull the plug on any future development in the language." The Framers, the brief argues, would have an analogy—the Académie Française, which regulates the entirety of the French language. "In effect, significant parts of French are constructed," the attorneys argue. "The Framers would have been shocked to learn that they might be prohibited from writing and speaking in French were the Academy to register copyright in its constructions. However, that would be the eventual result, if this court commits the qaq of blessing Paramount's claim to the intellectual property inherent in a language." The attorneys point to previous case law, including on constructed programming languages. In Computer Assocs. Int'l v. Alta, the court found terms in programming languages that were required to accomplish tasks in an operating system were not copyright-protected. In Zalewski v. Cicero Builder, meanwhile, the, brief points out that  court found that "if an idea 'can only be expressed in a limited number of ways,' those means of expression 'cannot be protected, lest one author own the idea itself.'" "Copyright law protects the means of expressing ideas or concepts, but it does not give the copyright holder the right to exclude others from making use of the ideas or concepts themselves," the brief argues. "Neither is one permitted to register copyright in a word." The brief illustrates the importance of a decision in the Axanar lawsuit that addresses the specific yet broad copyright claims made by Paramount. "No court has squarely addressed the issue of whether a constructed spoken language is entitled to copyright protection," the brief argues. There was, however, a trademark case. A federal circuit court affirmed the cancellation of a trademark claim for "Loglan," the name of a constructed language tied to an institute that eventually splintered. "While individual Klingon words may be expressive, one cannot speak Klingon without using these words," the brief argues, rejecting comparisons to litigation between Oracle and Google over Java. "The idea of speaking Klingon thus merges with the expression of particular words, making Klingon as a language not entitled to copyright protection." The brief also pointed to precedent on "poker jargon" (Grosso v. Miramax), which was also found to be not copyright protected. The attorneys drew on the conclusions of the Supreme Court about copyright and basic informatio[...]

How Copycat Cronuts Keep Chefs Sharp

Fri, 15 Apr 2016 16:20:00 -0400

You can watch a video of celebrity dessert chef Dominique Ansel's newest creation, a wild strawberry pavlova, today at It looks ridiculous and awesome (ridiculawsome?).

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But why should Ansel go to all the trouble of flying $70/lb wild strawberries in from Spain and fussing around with egg whites? After all, Ansel became a household name (well, in certain households anyway) in 2013 when he invented the cronut, a sphinx of a dessert that combines the glories of a croissant and a donut into a single pastry. New Yorkers (still!) line up around the block to get one of the limited edition treats each morning.

So why isn't this guy just chilling out and swimming around in his piles of cronut cash?

For starters, the U.S. Copyright Office does not recognize recipes as copyrightable. As The Washington Post reminds us today, you can trademark your brand name—no one else can call their ring of deep-fried croissant dough a Cronut—but that won't stop Dunkin Donuts started selling the Croissant Donut as soon as they can, even as others hustle out Doissants and Cruffins.

In fact, Ansel has published his recipe. There's no protectable trade secret, so anyone with a deep fryer and a death wish can try to make their very own authentic cronut.

But even as as folks queue up around Ansel's shop, still interested enough to pay a premium in time and money for the original brand's cache, Ansel is on to the next thing. He has to be in an industry where copying is a fact of life, and we're all better off for it.

As co-author of The Knockoff Economy Kal Raustiala told Reason TV: "Intellectual property law is not as important as we might think to innovation." He cites fashion, food, and football as industries that are constantly being driven to new heights by the fast pace of copying and remixing set by the lack of intellectual property.

(Of course, many industries with intense copyright protections are also hotbeds of innovation. The food and fashion industries merely suggest that treating intellectual property like real property not a necessary condition for entrepreneurship and new ideas.) 

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