Navigating the Digital Seas: A Study of Copyright Infringement, Piracy, and Online Etiquette
If you're old enough to remember watching movies on VHS tapes, then you almost certainly remember everything you had to see, or maybe fast-forward through, before your featured film. In fact, some people find the VHS tape-watching experience so pleasant and nostalgic that there are YouTube videos, almost certainly in violation of copyright law, recreating the experience. I digress; in addition to the coming attractions, the most memorable slide for me as a child was the one warning against piracy. I can still see the blue background featuring a prominent FBI badge and the warning " the unauthorized reproduction or distribution of this copyrighted work is illegal. . .” in my mind's eye. Perhaps that's the very reason I'm where I am today. Another version of this warning screen reads "Piracy is not a victimless crime," a phrase that is meme'd all over the internet by people who believe media should be free. I hate to break it to those people that we pay for food, water, clothing, and shelter. . . Harming the arts by refusing to pay for access or wrongfully copying isn't cool. If you want to go Robinhood mode, pick a different sector. Piracy DOES have victims. They're not all institutional clients like Paramount; anyone can be a copyright holder. All they need is an idea, an expression, and a tangible embodiment of that said expressed idea.
My passion for intellectual property brings me to writing this article today. I hope this serves as a guide to demonstrate the concept of IP as a double-edged sword. This body of the law both serves to protect artists and to protect institutions. It has the ability to promote the arts, and it can stifle them. It can turn any person into a rich rightsholder, or it can slap a million-dollar lawsuit on a Granny who doesn't even know she's infringing. And yes, that has happened. So, whether you're an artist or just a layperson or Granny, IP law affects YOU. Here is, in my opinion, what every artist, author, creative, or layperson should know about IP law.
Despite being a history lover and student of Western philosophy and jurisprudence, I will not bog you down in the history of IP law's origins. If you care to know about the Guttenberg printing press, the Statute of Anne, and the Lockean labor theory of it all, there are libraries full of material for you. But that's not where we're gonna start today. In a nutshell, the concept of Copyright is laid out in the US Constitution, so yes, it is as American as apple pie, and it’s been with us since the very beginning. However, it has been dramatically codified and expanded upon beyond the slim mention in the Constitution. The Copyright Act is federal law, first enacted in 1790. Since then, it has been significantly altered by the respective revisions, the addition of new complementary and supplementary acts, international law and treaties, and case law.
Some of the most relevant additions to the Copyright Act of 1790 were the 1831 revision, the 1870 revision, the Berne Convention, the International Copyright Treaty, the 1909 revision (still relevant today), the 1976 revision (today's standard), the 1992 amendment to Title 17, the TRIPS agreement, the World Intellectual Property Organizations (WIPO), the Sonny Bono Copyright Extension Act, the Digital Millennium Copyright Act, the Family Entertainment and Copyright Act, HR 5439, and the Music Modernization Act.
I include this exhaustive list to show you that there is no singular source of copyright law or IP law, despite the fact that there is only one body of law called the "Copyright Act." This fractured nature of relevant materials is what makes IP so fascinating, complicated, hotly debated, and ripe for litigation. It's also the reason why I highly recommend working with an attorney if you’re gonna start messing with IP matters. And I'm not just saying that because I'm almost one myself. Little boys who play with fire get their fingers burned. Sure, a slap on the wrist from YouTube or Instagram telling you your content is being removed for a violation may be of little deterrence or effect to most people, but what if you didn't get so lucky as to be disciplined by one of those "nice guys?" Teenagers and senior citizens were sued for millions of dollars for simply illegally downloading songs on the internet in the early 2000s in one significant case. On the flip side, what if you’re a person who makes their livelihood online? You can't afford to keep having your content taken down for violations. It hurts your brand and your bottom line. So how can you (1) protect yourself from getting into legal trouble over IP issues, and (2) protect yourself and your creations from infringement by others? Let's take a crack at it
DISCLAIMER: I am NOT a lawyer, and this is NOT legal advice. My blog, as a law student, provides general information and discussion about music, film, AI, intellectual property, and law-related subjects. The words provided on this blog or linked materials are not intended and should not be construed as legal advice from me to you. If you have any legal concerns, consult with an appropriately licensed attorney. Never disregard professional legal advice or delay in seeking it because of what you may have read on this blog.
For the purposes of IP law, a creator of a work is called an "Author." They may be an author in the literary sense, but the term also refers to photographers, fashion designers, songwriters, architects, mimes, etc. Anybody who can create a tangible, copyrightable entity. As a copyright holder, an author enjoys an exclusive bundle of rights when it comes to their creation. This bundle of rights includes
1.) The exclusive right of reproduction (to make copies)
2.) The exclusive right of adaptation to create derivative works
3.) The exclusive right of distribution
4.) The exclusive right of public performance
5.) The exclusive right of public display
6.) The exclusive right of public performance of sound recordings by means of digital audio transmission
We can break down what each of these rights means, how to exploit them as an author (to get the most out of your copyrighted creation), and how to respect them as a user (and avoid getting into legal trouble for copyright infringement). We will also discuss affirmative defenses to copyright infringement, including the famous "Fair Use Doctrine," among other protections established through case law or other relevant law. Lastly, we will go through a brief discussion of other IP concerns, such as Trademark and patent law.
1.) The exclusive right of reproduction. The right of reproduction refers to the literal right that the copyright holder has over, well, making copies, it's that simple. However, the importance of this concept cannot be stressed enough. I'll start with a simple example and then scale up. Imagine I doodle a very cute mouse drinking matcha on a napkin at a coffee shop. As soon as the doodle is completed, it is fixed, tangible, and original (because I created it originally), so it is now protected by copyright. There is no registration or formal process needed. Once fixed and tangible, copyright attaches. So, the work I authored, Matcha Mouse, exists exclusively on my napkin. As the copyright owner, however, I can doodle Matcha Mouse wherever I want and make copies. But if you want to be able to draw Matcha Mouse, you would need my permission, because your drawing of him, would be a "copy" and only I have the copyright. Now think of this on the macro scale. Jay Blakseberg shot film at a Grateful Dead concert in the 1980s, producing fantastic photographs. Today, he digitizes them and posts them on his personal Instagram account. That's just fine; he's the copyright owner. I, no matter how much respect I have for him, or how much love I have for his work, cannot take a screenshot of his Instagram post and print it to sell to my peers to try and re-popularize concert photography and the Grateful Dead. If I were to do that, I would have violated Jay's copyright, directed attention away from his work, profited off of stealing his work, and never compensated him for the work he provided me. That is piracy and copyright infringement, and it happens every day.
2.) The exclusive right of adaptation to create derivative works. The derivative works right is a slippery slope and can be a bit confusing. One simple example of a derivative work is the right to translate a work into other languages. If I write a book called "The Little House" and obtain a copyright, you cannot write "La Casita," a word-for-word Spanish translation, and publish it on your own without violating my copyright and giving me grounds to sue. However, there are far more types of derivative works than just simple translations. Let's revisit Matcha Mouse to explore. After I create Matcha Mouse, he becomes wildly popular. He is instantly recognizable and is very popular online on the Instagram account I started, where I share drawings of him getting up to various hijinks. Every new situation I draw Matcha Mouse into is a derivative work of my original sketch of Matcha Mouse on the napkin. These derivative works also each are awarded their own copyright. So you, a lay person, cannot copy my original Matcha Mouse, nor can you copy any of my subsequent existing Matcha Mouse comics, or create a new Matcha Mouse comic of your own without violating both my right to copy Matcha Mouse and my right to create derivative works of him. To take this example macro, let's look at Barbie. Mattel owns the copyright for the character Barbie. Barbie began as one prototype doll. Every subsequent doll sold as Barbie is either a copy of the original or a derivative work based on the original doll. However, derivative works won't only refer to Barbie Dolls. Barbie Nutcracker, Barbie Life in the Dream House, and the most recent Barbie movie are all examples of derivative works based on the original Barbie doll, and all belong to Mattel. If I write a new script called "Barbie Too," where a doll-turned-human named Barbie, who has pals named Kelly and Ken, becomes a veterinarian, I would be violating Mattel's copyright.
3.) The exclusive right of distribution. The author has the exclusive right to distribute their original work or any copies they made of it. If Matcha Mouse becomes the modern-day equivalent of Hello Kitty and I want to create stuffed animals, lunch boxes, thermoses, pencil cases, and passport holders featuring the beloved character, I will need to find a distributor. After creating these designs, all derivative works with copyrights of their own, I meet with Smile Maker Industries, a manufacturer and distributor of toys and knickknacks. Smile Maker wants to charge me $10,000,000,000 to manufacture and distribute the toys, and I can't afford this, so I walk away. But Smile Maker decides they'll go through with it anyway. They create illicit copies of the Matcha Mouse toys I designed and send them to the toy stores they have a relationship with. They think they're laughing their way to the bank, but I'm about to hit them with a lawsuit. Not only did they wrongfully create copies and derivative works of Matcha Mouse, they distributed these copies without permission. And, as it turns out, I did make a successful distribution agreement with Sugar Magnolia Inc., who has the exclusive license to distribute Matcha Mouse toys and will also be suing Smile Maker. . . Sucks to suck.
4.) The exclusive right of public performance. This one is a doozy, especially when it comes to music, and it’s worth going in depth. Here's a stab at it. Let's say Bobert Bunter writes a song called Lacey Stones. No relation to Robert Hunter or Casey Jones (pure coincidence). There is a sheet of paper that he walks around with that has the actual musical notes written down, and that is the composition of the song "Lacey Stones." Bobert is the exclusive owner of that composition. However, Bobert isn't much of a singer, and he doesn't like to perform. He wants his song to get out there, though, so he enlists the help of his friend Terry Larcia. Terry looks at Bobert's composition, gets in the studio, and creates a sound recording of him signing the notes and playing them on the guitar. Bobert is the copyright owner of the composition, and Terry is the copyright holder of the sound recording for the same song, "Lacey Stones." By giving Terry permission to perform "Lacey Stones," Bobert has licensed the song to Terry as its author. So, how will Bobert be compensated for his efforts if Terry plays the song live in concert at the Springland Ballroom? Well, Bobert is a member of a Performer's Rights Organization called SAMI. When Springland Ballroom opened up, in order to function as a concert hall and live music venue, they purchased a license from SAMI to use any and all materials by their members, one of whom is Bobert. The money that the Springland Ballroom paid SAMI goes into a pool of money along with every other venue that has purchased a license. This pool of money will be redistributed to the artists who are registered with SAMI based on a secret formula. At the Springland Ballroom, Terry performs five songs, called "Lacey Stones," "Plane of Idiots," "Trampled on Rose," "Light Moon," and "Tortoise Airport." Springland Ballroom takes note of the setlist and reports it to SAMI. SAMI sees that "Lacey Stones" was played and that its author, Bobert Bunter, is a member of its organization. They pay out to Bobert a portion of money from their collective pool. This is part of the way Bobert makes money from writing songs, even though he doesn't like to sing. He can monetize his copyright by licensing the right to perform to someone like Terry, and still enjoy financial benefit. Now, note that Terry doesn't need a license to sing Bobert's song at home. He doesn't even need a license from Bobert to record a version of it for his own upcoming studio album. This is because Bobert will be listed as the composer of the song and will be paid out by SAMI again. However, if a new club promoter, with the nickname Devilish Snake, opens up a new club in the area called The Vortex and doesn't register with SAMI but books Terry, and Terry plays "Lacey Stones" live, then there's a problem. Bobert is NOT being compensated for the public performance of his work by Terry because Devilish Snake refuses to operate his venue correctly. The right of public performance is of VITAL importance to writers and authors of all kinds. As you can see, having the right to control the public performance of your work is a big deal.
5.) the exclusive right of public display. Only a copyright holder has the right to publicly display their work. After "Lacey Stones" becomes a smash hit, a local cafe, named "Starving Art's" realizes that Bobert left behind a piece of sheet music when stopping in for lunch yesterday. The sheet music happened to be his original composition of "Lacey Stones." To attract customers and be seen as part of the town's hip scene, Starving Art's decides to put the sheet music in their front window and add a sign reading, "If we're good enough for Bobert Hunter, we're good enough for you! Come in and enjoy the Lacey Stones Latte." Starving Art's is going to become Famished Art's after the lawsuit they're getting. Not only are they violating Bobert's Copyright by displaying his composition, but Bobert may be entitled to Trademark violation relief as well for the cafe's reference to his person, the unendorsed latte name, and the creation of an association between Bobert and the cafe. . . Guerilla Marketers beware.
6.) The exclusive right of public performance of sound recordings by means of digital audio transmission. This right seems very similar to the exclusive right to public performance, but it's a little different. The Public performance right applies to live performances, terrestrial radio, and some forms of streaming. However, when it comes to digital audio transmissions, such as online radio, copyright holders wield a separate right. The performing rights organizations, called PROs like "SAMI" in the example I gave above, do not collect royalties for digital audio transmissions. A real, not fictional, organization called SoundExchange is responsible for collecting royalties for songs broadcast over digital means. So, if "Lacey Stones" is played on Pandora, Bobert will be compensated by SoundExchange, who is in contract with Pandora.
Now that we've laid out the exclusive rights of copyright holders and shown examples of how these rights can be enjoyed, licensed, or infringed, let's cover ways that you can enjoy, license, or protect your own possible intellectual property and how you can avoid stepping on the toes of other creators. Let’s look at a few common scenarios, explain when/how/if infringement is happening, and then explore whether or not legal intervention is likely.
Making a Copy: Taking a screenshot or screen recording, duplicating a file, snapping a photo, tape recording, or making a Xerox of a fixed, tangible, original work is considered making a copy of that work. Making these copies for yourself doesn’t present a threat, and it's highly unlikely that the owner of the original work would ever know that you’ve produced a copy of their work, let alone give you legal trouble over it. This is because of the nature of how copyrightable most things are, but just because they ARE copyrightable, doesn’t mean they’re valuable or worth enforcing in court. However, if you begin using your copy for monetary gain, or circulating it academically, or on social media in a way that draws attention, you’re crossing over into the realm of true infringement and possible legal troubles. You can avoid sticky situations and feel comfortable knowing you’re not in any grey areas of IP law if you know your sources when it comes to borrowing media. If you use the photography, art, or renders of others in your graphic design for work, use images from royalty-free databases instead, like Unsplash, Pixabay, or the Public Domain images gallery offered on some museum websites. For videographers, including songs inside your videos that aren’t licensed is considered copyright infringement. For example, if you share a video on YouTube or TikTok where music is playing in your room and is being picked up on camera in addition to whatever you’re already filming, congratulations, you have violated the Digital Millennium Copyright Act and could have your video removed. To prevent this kind of situation, use the music provided through TikTok, for TikToks, find royalty-free music, or look into licensing the songs you actually want to use. For musicians and filmmakers, it may be obvious, but uncleared samples or synchronizations are copyright infringement, and the owner of your infringed material may be entitled to an injunction leading to the demise of your darling project.
Making a Derivative Work: Many laypersons are familiar with the concept of the “fair use doctrine,” which allows what would otherwise be blatant copyright infringement to be permissible in situations where “fair use” outweighs finding infringement. What people don’t realize is that the Fair Use doctrine is an affirmative DEFENSE to a copyright lawsuit, once you have already been sued. It is not a position you can rely upon to disseminate an infringing work. This will often come up in a familiar context. Imagine you ask a friend to copy their homework but to avoid going down for plagiarism, they tell you to “change it up a bit.” Well, the fact that you “changed it up a bit” means you didn’t create a copy of their homework, but you did create a “derivative work” from it. How does this come up for the layperson? Let’s say you’re a film student, making an art heist movie where the main character steals a Cindy Sherman photograph from a Chelsea gallery. You obviously need a prop on set to be the Cindy Sherman photograph in question. You think it would be wrong to just screenshot, expand, and print a Cindy Sherman photo because that seems like outright infringement, so you have the bright idea to “change it up a little.” You recolor the photograph, add some dust and scratches in PhotoShop, and bedazzle the printout. Well, now you’ve actually created a derivative work, something only Cindy Sherman has the right to do. Your prop is still in violation of Copyright law.
Public Performance: Have you ever attended a basement show, open mic at a local watering hole, or warehouse rave? If these places don’t have licenses to operate as music venues, they’re actually contributing to the piracy of IP for the songwriters whose work may be covered therein. If I throw a basement show in a college town, where kids cover Mudhoney, Stone Temple Pilots, and Audioslave, these bands are technically owed money through the royalties that they would receive through their Performing Rights Organization that a registered music venue, unlike a college house, would be a part of. Now, I don’t think most bands care that their songs are being covered somewhere by college kids at an illegal venue, and I don’t think this will lead to any trouble legally, even if it’s technically illicit. But, if you’re a coffee shop, bar, or lounge, and you start hosting open mics, live music, or even start to play music over your sound system, and don’t pay to license music from a performing rights organization, now you could be in trouble. There is a loophole worth mentioning called the "homestyle exemption" or the "home use exemption." This exception to the 1976 copyright act allows for unlicensed use of music if your “venue” meets certain criteria:
-The establishment must be a food service or drinking establishment (such as a restaurant or bar), or a retail or service establishment (such as a store or shop).
The establishment must be smaller than 2,000 gross square feet (or 3,750 gross square feet for food service or drinking establishments) or, in the case of a food service or drinking establishment, must have a capacity of fewer than 375 persons.
-The establishment must use a single receiving apparatus of a kind commonly used in private homes (such as a radio or TV) to receive the broadcast.
-The establishment must not charge admission to see or hear the transmission.
-The transmission must be licensed by the copyright owner, or exempt under the rules of the Federal Communications Commission (FCC).
-The transmission must be licensed by the copyright owner, or exempt under the rules of the Federal Communications Commission (FCC).
As we've explored the nuances of intellectual property law, it's evident that its implications are far-reaching and impact everyone, from creators to consumers. Whether you're an artist protecting your creations or an individual enjoying creative works, understanding and respecting these laws is crucial. By acknowledging the value of intellectual property and adhering to its principles, we can foster an environment that nurtures creativity and supports the rights of creators.
After all, anyone has the power to be an author of IP and should know their rights, how to enforce them, and also when they may be encroaching on the rights of others. The arts are vital, and “piracy is not a victimless crime.” The arts are underfunded and paid for through complicated mechanisms like the Copyright system. To quote the Constitution, we enforce these rights “To promote the Progress of Science and useful Arts. . .” and, I believe, to better our society that often priorities utility over creativity.
