Ooh LaLa – Copyright and Racy Content in VidAngel Case

Look, I get it. I’ve been there. One awards season while I was a movie critic, a few families gathered to watch Joe Wright’s lush adaptation of Leo Tolstoy’s Anna Karenina. Our children ranged from middle school to mid teens but we agreed that Tolstoy’s masterpiece exploring and contrasting love in its many forms would benefit them despite its racy content. It’s great literature, after all! We agreed to simply skip the racier scenes, primarily because they were not appropriate for the children but also because ain’t nobody want to watch that kind of thing with your mama in the room.

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I held the remote and when the key moment came, hit the button to skip the scene. But remotes have a mind of their own. The DVD advanced just a tiny bit. Let’s just say the Trans-Siberian railroad was picking up steam. The next press of the button went way too far, jumping some later scenes, so I pushed rewind which brought us back to the offending action, halfway through perestroika, if you get my drift. By this point, I was panicking and pushing all the buttons, which ended in Kiera Knightly, frozen larger than life, wearing only a strategic fur and a look of ecstasy, as if she’d just tasted particularly good borscht.

It was memorable. The children learned more than we intended. By attempting to skip the scene, I had indelibly imprinted it on the minds of everyone in the room. I understand the market for movies with all of Anna’s kareninanas edited out, as it were. I would have paid good money for a remote that wasn’t conspiring against me. That’s what Congress had in mind when it passed the Family Movie Act, which reduced copyright liability for technology to filter out content, provided that the copy of that content was authorized. The idea is that technology could take the place of mom’s remote skills or, even worse, dad barking “Cover your eyes!” whenever a, um, Bolshoi Ballet starts.

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A recent court case, however, clarified that the right to protect copyrights and control one’s own work did not include a streaming service that competes with the studios’ own release of works on streaming platforms. The U.S. Court of Appeals for the Ninth Circuit upheld the District Court’s injunction of VidAngel’s service, saying the Family Movie Act did not shield them from copyright liability. You can read the opinion here.

What VidAngel Did:

VidAngel was a subscription service that allowed home users to stream movies and TV shows, selecting what types of content they would like edited out of the work. Users could watch without swearing, say, or violence or sexual content. I say “was” because, although the company still exists, the methodology seems to have changed since the time at question in the lawsuit.

When movies or TV shows would release on DVD, VidAngel would legitimately purchase multiple copies of that DVD. They would then break the encryption on the DVD and upload a master copy to a computer. That copy would then be segmented and digitally prepared for different types of content to be edited and those segments would be uploaded to cloud storage.

Subscribers to VidAngel would purchase a physical DVD that was stored at VidAngel’s facility, then VidAngel would stream the cloud-stored version to them, editing as directed by the customer. After the customer finished watching, VidAngel would buy back the DVD from the customer for a slightly reduced price. While the DVDs technically were owned by the subscriber, they almost never physically left VidAngel and VidAngel sold and bought the same physical DVD over and over again.

If you think this is too cute by half, the court agreed.

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The Legal Quandry:

The primary question before the court was if the copy of the work from which the stream originated constituted an “authorized copy” under the Family Movie Act. VidAngel argued that because the process begins with an authorized copy, a lawfully purchased DVD, any stream of that content is authorized. The court said disagreed: A “filtering technology that made digital copies from lawfully purchased discs and then filtered them, as VidAngel does, is not” consistent with the definition of “authorized copy” because “beginning from” or “indirectly from” an authorized copy is not the same thing as an “authorized copy.”

The court also rejected VidAngel’s argument that their use of the works were protected by fair use, saying merely removing content does not sufficiently transform a work. “Star Wars is still Star Wars, even without Princess Leia’s bikini scene,” the Court noted, thrilling law nerds across the country. Finally, the Court noted that VidAngel was likely to lose on the issue of violating the anti-circumnavigation rules, which prohibit breaking encryption technology in certain circumstances.

Why VidAngel Was a Bad Idea:

VidAngel’s model opened up an enormous copyright loophole. The Court noted:

VidAngel’s interpretation would create a giant loophole in copyright law, sanctioning infringement so long as it filters some content and a copy of the work was lawfully purchased at some point. But, virtually all piracy of movies originates in some way from a legitimate copy. If the mere purchase of an authorized copy alone precluded infringement liability under the FMA, the statute would severely erode the commercial value of the public performance right in the digital context, permitting, for example, unlicensed streams which filter out only a movie’s credits

Disney Enterprises, Inc. v. VidAngel, Inc., No. 16-56843, 2017 WL 3623286, at *7 (9th Cir. Aug. 24, 2017)

In other words, if filtering something is the only fig leaf necessary to stream unauthorized content, unscrupulous players would quickly filter something inconsequential and claim the protection of the Family Movie Act. The District Court’s findings upheld this instinct. Some 49% of content streamed over VidAngel had no filters activated at all.

The Service Interfered with Markets

TV and movie studios carefully window their products to profit from the product. A movie may be in theaters, then offered on DVD, and then offered for purchase and download before it is ever cleared for streaming. This is based on careful market calculations and is the product of extensive negotiations and contracting with platforms. VidAngel effectively eliminated the ability of the studios to cater to different markets by offering streaming as soon as the product was released on DVD. Evidence that the service was being used as an end-run around the studio releases is in the above statistic that 49% of content was not filtered. In those cases, the users did not prioritize editing ability. They merely wanted to cheaply stream the content sooner than they would be able on other platforms. As the district court put it VidAngel interfered with copyright owners’ “basic right to control how, when and through which channels consumers can view their copyrighted works.”

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The Service Interfered with Free Contracting

In addition to muddying the waters of contracting for streaming services and DVD sales, the service potentially interfered with contracting between the distributors and the people who make the movies. Take the case of directors. In my life as a movie critic, I interviewed a big directors and let me tell you a good director loves the final cut of her movie. The more artisan a director, the more she puts herself into a film. She sweats each cut, lives and breathes each sound edit, lovingly caresses the color balances into place. The more clout a director has, the more likely it is that she has negotiated for veto power over any derivative products made from the film. She may love each of the f-bombs in the movie like her own child and retain the power to stop an edited version from being released. She may think the sex scenes absolutely integral to the artistic vision of the movie. “Organic” is a word directors use a lot. They like characters or scenes or dialog to be “organic.” Cutting their beloved baby is never “organic.” One director may be fine with the film being edited for TV, for instance, and another may negotiate the right to deny that happening.

The studio, or whatever entity retains the copyright ownership, is able to comply with this contract element through its ability to grant or deny creation and performance of derivative works. The VidAngel model removed the right to deny, which then removed the ability to comply with existing contracts.

At the margins, free reign to edit and perform content without permission would result in some of that content not being made in the first place. Sure, James Gunn might still agree to do Guardians of the Galaxy, but perhaps Edgar Wright would not want to see his carefully crafted and stylized Baby Driver sliced into a million pieces. Artists are picky that way sometimes.

The Service Allowed VidAngel to Profit off Others’ Work

This is the bottom line. VidAngel was selling movies and TV shows it did not create and did not license. The fact that it did allow users to view works with a few swear words edited out does not change the reality that the entire business model revolved around selling a product created by others, without permission. The directors, actors, writers, camera operators, stunt people, set builders, light stringers, and key grips (whatever that is) deserve to be paid for their work. If there’s money to be made, it should go into their pockets. The ability to profit from an artistic work is not only fair, but enables the creators to make the next work. If Game of Thrones stopped making money for HBO, there would never be a season eight and we’d never know what Tyrion has up his sleeve.

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Allowing families to edit content may be a noble goal, but this was not the way to go about it.

Snapping the DMCA: Can Creators Protect Themselves on Snapchat?

As technology continues to offer us new ways to connect and share information, how do new platforms jive with the system set up in 1998 by Congress to enable copyright owners to protect their property on the Internet?

Not well, it turns out. Let’s look at Snapchat, the hottest messaging app that ever slapped a flower crown on a selfie.

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Snapchat has a lot going for it, not the least that its structure of limiting both anonymity and public commentary seems to make it a kindler, gentler world than Facebook or Twitter. You cantankerous uncle won’t find an audience for his contrarian views here, should he even be hip enough to know what Snapchat is.  Instead, you get quick, silly snapshots of your friends’ days, glimpses that disappear within seconds of viewing. You can respond directly – or not – and your response disappears after viewing as well. The longest anything remains on Snapchat is a 24 hours, when a user or brand choses to post something to a public slideshow Snapchat calls a story.

It’s bad for scheduling meet-ups, or anything else that needs a record to review, but great for spontaneous interactions.

It also lets you superimpose a dancing hot dog on your cat, for some reason. What a time to be alive!

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However, as great an app as it is, it poses unique challenges for artists wanting to protect their work from being used without their permission.

First, some numbers. Snapchat claimed 100 million users, 10 billion videos a day, and 350% growth in 2015. Famously famous celebrity Kylie Jenner, rumored to be Snapchat’s most-followed account, purports to have 10 million followers. Snapchat does not make follower numbers public, although it does assign an obscure user score to each account (hello, 631!), so there’s no way to verify, but let’s just say that accounts like Kylie have huge followings.

I’ve monitored Kylie’s account, for which I should be given hazard pay. She posts multiple snaps a day, usually video. There are shots of her vamping using a Snapchat filter than imposes puppy ears on your head, shots of her vamping showing off her posterior, shots of her vamping pouting her lips, you get the idea. There are literally thousands of shots.

 

Interspersed with all this, she runs ads for her self-branded products and also for other products. Brands often pay celebrities to post their products in social media, just to make the brand seem cool.  It is also possible she gets a cut of the ad that rolls at the end of her series of posts. Good for her. There’s nothing against making an honest, if vampy, buck. All this to say, for accounts like Kylie Jenner, Snapchat is an element of commercial enterprise and brings in big money for both the poster and the platform.

So what if you are a songwriter or recording artist and a big account posts a video promoting a product and using your song? A copyright owner would expect to license a song for such advertising, for decent money.

But if there was no license, how would the DMCA enable a creator to protect their property on the Snapchat platform? Snapchat has some inherent problems that only show how the DMCA continues to be ineffective as the Internet continues to evolve.

Snapchat Infringement is Invisible to Web Searches. When looking for infringement, copyright owners search the web, either manually or with automated web crawlers, for their image, song, or video. However, Spanchat is entirely phone to phone. Snaps never hit the web and are therefore not indexed on the web the way tweets, Instagram posts, or Facebook posts are (although these may be protected by privacy settings on the web). That  snap that went out to millions of people would never be visible to a web search tool. That means that copyright owners must actually monitor these accounts and not rely on their primary tool of web crawling. This of course takes even more time and resources than searching the web and monitoring techniques have yet to catch up.

Disappearing Snaps Make Finding Infringement Extremely Difficult: One of the most important features of Snapchat is that snaps disappear quickly. In the case of stories, they disappear 24 hours after they are posted. That means if you are monitoring for infringement, you have to check every single day to catch it. There is no record of it after 24 hours, so you have no way of knowing if your material was infringed a day or two ago. That is a big burden to put on copyright owners, most of whom don’t spend time every day looking for infringement.

A natural response is to think that the disappearing nature of the infringement means that the infringement is minimal and not worth worrying about, but that doesn’t hold up on examination. A television commercial disappears after 30 seconds of watching, but we still expect music and images to be licensed for advertising that goes out to millions, indeed, especially for advertising that goes out to millions.

There is No URL to give to Snapchat. Courts have interpreted the DMCA to require people giving a takedown notice to provide actual notice of the infringement by providing a URL where the infringing content is located. Snapchat does not have URLs, so it is unclear what type of description or notice would constitute actual notice in this context. Is saying “User SuperCoolMama posted a snap with my song “Cool Mama Diddy Bama” at 1:17 on Tuesday” enough? Case law is unclear.

TakeDown Notice Does Not Provide a Remedy: Because of the disappearing nature of the snaps, if infringement occurs, it’s naturally going to be removed anyway. This is different than YouTube or Facebook where creators send a takedown request for something that is more or less permanently posted. In a case of piracy or YouTube infringement, a quick removal does provide a remedy of sorts, when it actually occurs. But in my advertising snap hypothetical, the damage is done once the audience sees the offending snap.

Under case law, platforms are required to take down infringing content in a timely manner, but no court has yet said that taking down infringing content within 24 hours does not meet that standard. Therefore, Snapchat really doesn’t have to do much to comply with a takedown request to retain the safe harbor the DMCA gives platforms in dealing with user-generated infringement. By the time the infringing snap is found, the takedown notice sent, and Snapchat responds, the problem is moot. In other words, Snapchat can only benefit from infringing content posted by users and, under current law, has very little exposure to liability.

Of course, a copyright owner can still pursue the user for infringement, if they managed to find it. In my hypothetical of a big user posting content that is clearly commercial, that would make sense. However, as we’ve found in other platforms, for every big user posting something commercially, there are thousands of other infringements where legal action may not recover damages to cover cost of the action.

The logic of the DMCA was to give platforms an incentive to innovate while also giving them an incentive to reign in user infringement to some degree. The innovation is certainly happening with amazing platforms like Snapchat, but that very innovation may be removing what incentive remains for the platform to act against infringement.

I enjoy Snapchat almost daily. Their cooking videos are captivating. From what I can tell, their professional content providers, mostly well-known names like Daily Mail, BuzzFeed, and The Washington Post, have honored intellectual property rights in creating their addictive stories,  quizzes, and videos.

Yet as the DMCA stretches to cover platforms that were never even contemplated when it was written in 1998, it only goes to show how much a serious update is needed.

In my next social media copyright post I’ll ask the question, “Can the flower crown be copyrighted?”

This post was updated at 5:58 on 9/1/17 to include the URL point and the words “Cool Mama Diddy Bama.” 

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About the Author: Rebecca Cusey is a writer and lawyer (pending bar passage results!). She graduated cum laude from Antonin Scalia Law School at George Mason University in May 2017 where she focused on Intellectual Property. She lives near Washington, DC with her adorable husband and dashing children. 

Follow Rebecca on Twitter: @Rebecca_Cusey

Return of Copyright Chick

It’s time to start blogging on copyright again.

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After a brief hiatus to finish law school and take the Virginia bar, Copyright Chick is back.

While I was gone:

I helped write an amicus curiae brief in the copyright case Oracle.

Wrote a Comment for the Copyright Office for their Section 512 Study on the effectiveness of the DMCA, on behalf of the Arts and Entertainment Advocacy Clinic at Antonin Scalia Law School.

Wrote a research paper on copyright and software, which I discussed with the talented Jennifer Atkins (now new faculty at Scalia Law – congrats!). We also discussed compulsory licenses in another podcast.

Ate crabs on the Chesapeake Bay.

Here’s to a fall full of fun copyright news and posts defending creators.

Let’s go.

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Study – Creators Frustrated with DMCA (with Pandas!)

The evidence is increasingly clear: The DMCA needs work.

Also, here to help explain are some panda gifs.

A new study by the Copyright Alliance shows that creators have frustrations with the Digital Millennial Copyright Act (DMCA) system for dealing with copyright infringement on the internet.

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The Copyright Alliance surveyed 1,362 creators about their experience with the DMCA. Some of the most interesting results are:

  • 52.2% of creators monitor the internet for infringement in some way.
  • 37.4% do not monitor for infringement.
  • Yet (and this is important) only 2.5% say they do not mind if their work is used online without permission.

There is an obvious gap between 2.5% who are happy to give their work away and 37.4% who may not be happy to give it away but don’t monitor for infringement. The study suggests an explanation: Creators lack information on how the DMCA works or perhaps it’s too difficult and time consuming to merit the time.

There are lots of other interesting findings in the study – you should read it – but the other key finding is that 47.6% of respondents say that the DMCA is ineffective. That’s a pretty high level of dissatisfaction with a system that was supposed to safeguard creators’ rights. Not quite a panda-playing-in-the-snow level of happiness.

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This study dovetails with one I worked on with the Arts and Entertainment Advocacy Clinic at my law school, George Mason Law (where I’m a 3L and ready to graduate!). In that study, student lawyers took on the role of monitoring and reporting infringement online for several works.

Probably the most shocking finding of our many hours searching for and responding to infringement is the astounding level of malicious schemes masquerading as sites to download these works. In other words, bad guys dangle the lure of a download to steal personal information, credit cards, or to install malware on computer of the consumer. Many times, in fact, the promised download was not even on the site, something one discovered only after clicking through endless screens and downloading who knows what software.

47% of the sites purporting to offer the work were instead malicious in some way.

It’s a dangerous world out there.

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With this added dimension in the mix, we were able to confirm removal of only 16% of infringing content from the internet using the DMCA.

You can read the George Mason Law study here.

The studies show the DMCA is not working as it should, especially for individual creators just trying to make a living off their art. More research is needed, but even more, the DMCA needs updates. The pandas, though, are fine.

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Three Cheers for Fair Use From a Movie Critic

Hooray for the fair use doctrine! As a movie critic, I rely on it the way Hollywood relies on comic book sequels: Constantly and without shame.

Copyright keeps the ownership of a movie with the people who made it, allowing them to control where it’s shown and profit from it. Fair use protects my right to call the movie an indulgent, narcissistic journey through the director’s surprisingly uninteresting psyche.

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Everybody wins.

The movie critic gig works like this: I get invited to screen a movie, either through a big PR firm (most big studios), a smaller PR firm (most indie movies), or direct invitation of the moviemaker (very tiny indie movies with no promotion budget).  I then see the movie, usually in a theater but sometimes via DVD at home. Sometimes the PR folks will pitch an interview with someone involved in the making of the movie, a director (usually fascinating), a writer (also fascinating), or an actor (often far less fascinating).

Then I write.

Usually a review is straightforward:  a dismal reflection on the state of the arts in America today or (more rarely) a blissful ode to joy and all that is wonderful. The structure usually includes a basic reaction with a brief description of the plot and characters, an analysis of the strengths and weaknesses of the movie, a bit of warning about content for parents to consider, and a general endorsement or lack thereof. Sometimes, however, the movie critic muse strikes and one writes a review in the voice of a character or from an alternative universe, something along those lines.

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When the review is published, whether online or in print, it is often accompanied by a photo or two,  or often with a movie clip. When the review is on camera, either on TV or online, it will often include clips of scenes from the movie or the trailer.

The people promoting a movie usually make photos and video available for use by critics. They essentially grant a free license to use the materials with certain limitations, often that the material be used for criticism, that it not be sold commercially, and that the material be attributed to them. Fancy outlets will sometimes alter the photos to fit a certain visual theme. Most of us hardscrabble critics don’t have the staff or time for that. Almost all on camera reviews edit the video to fit with the spoken part of the reviews.

All that’s left is to upload the link to Rotten Tomatoes and respond to the anonymous internet folk calling you a know-nothing idiot or a bought-off hack (if only..still waiting for that cash to flow in).

The big studios are very professional about bad reviews. They generally knew when they had a stinker, although they won’t admit it. I guess they figure if you don’t like Captain America VIII, Captain America IX will be along soon enough.

But sometimes you review a film into which some poor dear has poured all her passion and energy, not to mention money. Passion + energy + money sometimes makes a good film, but you need talent in the mix too. Every once in a while, a filmmaker will threaten legal action because they are not happy with the review you wrote. Defamation is a big threat, and copyright infringement sometimes enters too.

That’s when it’s great to point out (or have the lawyers point out) a little thing called the First Amendment and its little sister, the Fair Use defense.

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What the doctrine does not allow me to do is to use the characters or images in my own work that is not criticism or parody. I can’t make a better indulgent, narcissistic journey through a boring psyche using the same characters or plot. Believe me, there are plenty of boring psyches to go around, anyway. I can’t sell t-shirts with a screenshot of the movie on them. And I certainly can’t bootleg the movie to show friends how bad it is.

In other words, I can point out that the filmmaker made a movie that sucks, but I can’t take actions to substitute my product for theirs. It’s not a hard distinction in the movie critic world and it should not be in other areas as well.

So here’s to Fair Use, keeping everyone in their lanes and balancing the interests of ownership with the interests of speech.

Calling All Creatives – Copyright Monkey Business in DC

While you’re busy actually creating the works of art that edify our culture and put food on your table, there’s monkey business going on in Washington, DC. Survey Monkey business, that is.

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This drama is over at the Copyright Office. The place you depend on to register your works and promote your right to own and control your work.

Back in October, the Librarian of Congress removed Maria Pallante, the Register of Copyrights, from her position. Pallante was generally regarded by the creative community as understanding the needs of creators and being an advocate for them. Her removal  happened suddenly and with a lot of confusion. No one is really sure why or what that means for copyright policy. Best case scenario, someone good is appointed. Worst case, the people  who want to use all the work of the creative community – for free – end up inserting their pick.

What do I do, you ask? Well the Librarian of Congress has taken the odd step of posting a Survey Monkey survey online to solicit responses about what the public would like the next Register to be like.

You can find it here.  It will only take a minute or two to fill it out.

 

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It’s an oddly vague survey, but here are some suggestions on what would be beneficial. We need someone who understands and appreciates the work and passion the creative community puts into their work. Someone who knows how hard it is to make it as a creative and is concerned when people take advantage of them by pirating their work. Someone who is forward thinking and sees the need for the Copyright Office to have updated technology (the system is incredibly outdated, as you know if you ever have tried to use the website to register your work). Someone who understands property rights, that if you create something you should benefit from it. That kind of person.

Often with online surveys in this contested area of policy, we see a lot of responses from the tech community, who tend to want everything to be free to everyone. Taking a minute to respond will keep them from drowning out creatives.

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More information here and here.

Photo used under a creative commons license by Alexandre Darth 

Art is the Adventure for Photographer Elli Morris

Elli Morris has journeyed many miles and it all goes into her photography. When she’s home in Richmond, Virginia the photographer and videographer enjoys the usual aspects of a photography business – advertising work for local businesses, portraits of individuals and the like, but she adds an extra twist.

Whenever she can, Elli gets out and does some adventure photography. She likes to get her feet wet in the James River, capturing images of all the fun available in her community’s back yard. The river runs the spectrum from the adrenaline-pumping thrill of whitewater rafting to the peaceful glide of stand up paddle boards.

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Elli working in the river. Photo credit: Rich Young

Although she has traveled all over the world, Elli likes her work to show people that they don’t have to save up for an exotic vacation to enjoy the outdoors. They can do it all close to home and enjoy the great outdoors whenever they like.

“If they see how fun it can be out there, if they can get out and have fun, they are more likely to be environmental stewards,” she said.

That’s one reason her work often is licensed by non-profits working with water issues such as clean water initiatives. They occupy the same space she does.

Elli’s love of photography started while she hitchhiked through the Caribbean. She didn’t have a camera on the trip and missed being able to show her family the places she traveled. Her parents bought her a camera after that and the rest is history.

She began self-training herself as she traveled the world, often stopping in tourist spots to buy postcards, and seeing if she could recreate the technique that made each shot so compelling.

So Elli enrolled in a college photography class. “I walked out of class and thought ‘I can see this entire new world open up, ways to see, ways to participate,” she said. She built up a portfolio and kept trying to improve her skills.

One professor said something that stuck with Elli. He called photography a “thinking person’s art.” Something about that way of looking at the world made Elli realize she wanted to pursue photography as a career. She kept going to school and tried to see if she could find a way to make a living at this “thinking woman’s art.”

Her desires were simple. She wanted to take good pictures, she wanted to get paid for them, and she wanted her work to be seen by others. She invested in years of schooling, years of practice, and generations of professional equipment.

Elli Morris Stills and Motion is the result.

Copyright is fundamental to her photography and videography business. She needs to sell licenses to use photographs or videos to make a living. When someone uses her images without permission, she says, “It’s like a theft. It’s the same as if somebody goes to a retail store and takes clothes, or walked into your house and took things. It steals my livelihood, my work, my right to say ‘I made this.'”

Enforcing that right can be frustrating. A few years ago, someone used one of Elli’s photographs on their business website without her permission. Elli did the research and figured out how to use Digital Millennial Copyright Act (DMCA) procedures to request the image be taken down. After a while, the business agreed to take the image down.

However, a few years later, the same business did it again. They used an image without her permission. This time when she sent a request through the DMCA, the business owner “hemmed and hawed” and never took the image down. Not only did the image remain on the site, but the business used her work in brochures and huge twelve-foot banners in a convention booth.

Elli feels stymied. Her only recourse is to go to court. She knows that the licensing fee she might recover is dwarfed by the cost of litigation.

Financially, it doesn’t make sense to go to court, but emotionally, the violation rankles, as do the hours she spent trying to rectify it.

“Not only did they steal my work,” she said, “but they stole my time. That’s my work. You don’t get to do that. It’s not right.”

You can follow Elli on Twitter @ellimorrisphoto or view her work at ElliMorris.com. Images used with permission from Elli Morris Stills and Motion.

IMG_4988About the Author: Rebecca Cusey is a writer and law student. She writes about movies and other things as a Senior Contributor for The Federalist and as a Policy Fellow at the American Conservative Union. She studies law at Antonin Scalia Law School at George Mason as a third-year student focusing on Intellectual Property. She lives near Washington, DC with her adorable husband and dashing children. 

Follow Rebecca on Twitter: @Rebecca_Cusey

Katherine Lents Finds Her Creativity Spark – Creator Profile

Sometimes a big risk is necessary to find the spark in life.

That’s what Texas filmmaker and entrepreneur Katherine Lents found when she left a stable and steady job in the pharmaceutical industry. She liked the work, but it didn’t feed her passion. So she founded ShowUp Media, a new web platform which aims to be a secure showcase for video content. Hosting  web series, short films, and TV pilots, ShowUp connects filmmakers with viewers directly, creating a better experience for both consumers of shows and the filmmakers who make them.

In addition to creating a platform featuring the work of other filmmakers, Lents seized the opportunity to produce work of her own, a process she embraces.

“I love the collaborative nature of filmmaking,” she told me, “It starts with something as simple as a script but takes the interpretation of your director, actors, crew, everyone right down to the production assistant.”

“It’s something that feeds that creativity spark.”

Lents hopes that attention to creativity and to the filmmakers who channel it will set ShowUp Media apart from its enormous competitor, YouTube. The huge platform poses a couple of problems for filmmakers. First, she says, viewers have to wade through an endless stream of cat videos and fractured content to get to things they want to watch. Creators end up losing the opportunity to build their brand with so much static in the way.

Secondly, it’s relatively easy for users to pull down the video content using readily available software and repost it at will. This piracy erodes both the filmmaker’s brand and revenue.

Combatting piracy is a huge motivating factor for ShowUp. Together with a tech company called Notion Theory, Lents has developed a platform that takes into account piracy concerns. Constantly adapting as piracy software emerges, ShowUp will ensure that the filmmakers get the benefit of users’ views, not some infringer in Russia. She hopes that creating a secure site will allow filmmakers to focus on what is most important: Creating their art and finding an audience for it.

Preserving copyright is extremely important in this context. A space where filmmakers feel confident will draw good content. If they control and profit from their work rather than being at the mercy of a world of infringers, Lents hopes the site will thrive. As filmmakers present quality product and viewers find content they like, the effect will multiply. Protecting copyright directly effects ShowUp’s bottom line.

She hopes to host content exclusively and have the site operate not only as a platform for consumer viewing but as a broker for larger deals and bigger distribution.

But that’s not the only goal. Ultimately, Lents wants the copyright and business to fade into the background so that the art can shine.

“The goal is to get viewers and filmmakers to work together,” says Lents. To that end, viewers can up vote videos they like and even weigh in on what pilots they think should be made into full series.

In a full-circle kind of happening, content from ShowUp may find its way back to the small screen. Lents is in talks with local cable companies to broadcast ShowUp’s content to TVs in the Austin area. This would get even more eyeballs on the filmmakers’ work and more oomph for their brands.

Katherine’s big leap is just one way that innovation and free market competition works in conjunction with copyright to serve everyone – both the creators and viewers win. Good luck!

You can follow Lents on Twitter @KatherineLents (she loves lamp) and ShowUp @ShowUpMedia

IMG_4988About the Author: Rebecca Cusey is a writer and law student. She writes about movies and other things as a Senior Contributor for The Federalist and as a Policy Fellow at the American Conservative Union. She studies law at Antonin Scalia Law School at George Mason as a third-year student focusing on Intellectual Property. She lives near Washington, DC with her adorable husband and dashing children. 

Follow Rebecca on Twitter: @Rebecca_Cusey

SONA Fights On Against Government Overreach After Judge’s Smackdown on DOJ Over Music Licensing

Last week, federal Judge Louis Stanton delivered a smack-down on the Department of Justice (read the order here) but a suit brought by songwriters is waiting in the wings.

In a declaratory judgment, Judge Stanton sided with BMI and rejected DOJ’s proposed rule change forcing vast changes in the way copyright owners license and get paid for their work. The DOJ rule mandated a change from fractional licensing to 100% licensing. In case there was any doubt about Judge Stanton’s ruling, the opinion ends with an epic, unequivocal statement: “The Consent Decree neither bars fractional licensing nor requires full-work licensing.”

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Fractional licensing works like this: Bars, stadiums and online streaming services, among other outlets, buy licenses from organizations like BMI and ASCAP (called in the industry PROs) to be able to play a list of songs licensed to the PRO. So if you’re in a smoky bar and hear “Smoke Gets in Your Eyes,” it’s because ASCAP or BMI represents someone who owns at least a part of the copyright to the song. BMI collects from the bar the fee for the portion of the song that their member owns and passes that along to the member. You get to feel melancholy on a Friday night, the bar makes another drink sale, the artist gets paid for his work, and everyone is happy.

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The DOJ rule change would have altered this arrangement, which has been the industry practice for a long time, so that any one copyright owner can license the song at 100% of its value to one PRO and another owner could license at 100% to a different PRO. Then someone, maybe the copyright owners, have to get the percentages of fees to the other owners.

When songs have not just a few but dozens of copyright owners, you can imagine the mess. Copyright owners worry this would cause a confusion, an increase in overhead as all these payments are figured out, and decrease their negotiating power, resulting in lower revenue overall as the values of the licenses plummet.

The basic problem is more fundamental. Over decades of music creation, songwriters, performing artists, labels, and distributors like PROs have negotiated and signed contracts between themselves that govern these things. They contracted based on an understanding of how the system would work, and tightly negotiated those contracts with fractional licensing in mind. The DOJ rule would have overturned thousands, nay millions, of private contracts between parties who bargained for exactly what they wanted.

Government doesn’t get to do that.

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Plus, when songwriters collaborate now, they don’t have to stop and think about PRO affiliation. They just pick the best collaborator to get the job done. If the DOJ’s rule is implemented, songwriters would have to consider with which PRO a collaborator has signed. If government action limits who artists can work with, not only is that a ridiculous intrusion into private contracting, but will end up creating a less vibrant music universe for listeners. Bad for artists, bad for society.

Freedom to contract is the premise behind another lawsuit on the matter, filed by the grass-roots organization Songwriters of North America (SONA). While the BMI lawsuit was based on asking the court to interpret the consent decree that governs BMI and ASCAP licensing agreements, the SONA lawsuit has a completely different legal theory. (You can read the SONA complaint here.)

Despite the assertions of Public Knowledge, neither count in SONA’s lawsuit is a copyright claim. Instead, the first puts forth a Fifth Amendment claim that DOJ’s proposed actions would take property from affected parties without due process. People have a property interest in both the contracts that the rule change would overturn and the underlying copyright interests. The Fifth Amendment protects against government taking these interests with the flick of pen.

The second count is an administrative law claim, that the DOJ rule change violated the APA (Administrative Procedure Act) by acting outside of the scope of the DOJ’s authority and was adopted without procedural safeguards, among other things. SONA is asking the court to declare the rule change unconstitutional under the Fifth Amendment and unlawful under the APA.

At this point, it’s not clear whether the DOJ will fight back against Judge Stanton’s appeal or let the matter stand. If the DOJ rule change is thrown out because of Judge Stanton’s reading of the consent decree, the SONA suit may well be moot. But if the case continues, SONA has a very good case against government overreach.

IMG_4988About the Author: Rebecca Cusey is a writer and law student. She writes about movies and other things as a Senior Contributor for The Federalist and as a Policy Fellow at the American Conservative Union. She studies law at Antonin Scalia Law School at George Mason as a third-year student focusing on Intellectual Property. She lives near Washington, DC with her adorable husband and dashing children. 

Follow Rebecca on Twitter: @Rebecca_Cusey