Archive for March, 2010

Generally speaking, copyright grants to the creator of an original work the right to copy, distribute, and adapt that work. For holders of large libraries of copyrighted work, the push of the last century has been to expand the power of those rights, whether it be a greater length of time (currently the life of the author + 70 years) or to control the means of distribution (like putting digital controls on CDs and mp3 controlling playback/recording options for musics).

As a lawyer dealing with people creating this wonderful content, I am not against this movement. I am, however, fascinated by the fact that some art/entertainment industries have survived and thrive despite the fact that copyright is not available to them. Among these are stand up comedy, cooking recipes, and fashion design, circus performances, and magic shows.

One of copyrights fundamental limitations is that an abstract idea cannot be copyrighted, only a particular expression. Stand-up is not copyrightable under what is called the “merger doctrine” which states that if an idea and the expression of the idea are merged to such a degree that the idea cannot be conveyed without using that particular expression, then the expression itself, however original, cannot be copyrighted. “Your momma” jokes just aren’t the same if you have to say, “The woman who gave birth is overweight.” Cooking recipes are not copyrightable because functional descriptions of how to accomplish a task are not protected by US copyright laws. Copyright will not stop a person who copies the recipe of a competing chef, even if the “impostor” goes so far as to open a restaurant across the street and claim that his cooking is identical to the original.

Looking at the these industries, I think it is possible to learn a thing or two about how to use non-IP strategies to successfully market one’s IP. Taking the example of the “robbed” chef and the competitor, such things have truly happened and in many cases, the original continues to thrive, even when the impostor charges less. Why? Because people who take dining seriously know which chef is which, and choose to dine with the original because he is the original, and it matters to them.

Doing His Thing

Much the same, stand up comedians continue to tour and draw crowds even though their jokes are retold by competitors and posted to youtube. Many stand ups also fail, but many have always failed, most people aren’t funny enough to entertain the masses for more than a one joke. The ones who make it have the knack to strike a chord with audiences that make it worth it be in the room with them. A friend of mine in law school recounted the time she saw Dave Chappelle live. She didn’t attempt to retell his jokes, but rather described to us how he engaged the room, invited audience participation, and gave keen insights into race relations in America. I’ve seen Chappelle’s show and watched my share of his stand up on youtube, I know his material. But if someone told me that he was in Seattle this Friday, I’d be there (if it weren’t already sold out), because I know that youtube doesn’t capture what it would be like to be there seeing him do his thing.

So a great lesson from the un-copyrightable is that authenticity and/or intimacy have value, and those who leverage that value can protect themselves from pirates in ways copyright laws never will. Musicians and filmmakers lead the current charge against pirates. Understandable, as music and film are so easy to copy and distribute over the net. Some advances in technology allow for added authenticity and/or intimacy. I follow many of my favorite musicians on twitter. It’s fun to get tweets from them in the studio, or out to lunch, or taking their kids to the mall. I feel more connected to them. Silly? Maybe, but it’s working for me. In addition to those little insights into their world, they have also become my first source for information about new albums and where to get them. Could I still download illegally? Sure, but I am more connected to them now, more a part of their life, and want to support the real thing. It also helps that I “hear it from them first.”

Another tech innovation that increases intimacy with artists, in this case film makers, is the DVD commentary. I am a major geek for DVD commentaries, sometimes preferring them over the film or TV episode. My favorite TV show of all time is Scrubs, created by Bill Lawrence. Bill is a major geek for commentaries, as well, having done dozens of them over the course of Scrubs DVD releases. I call him “Bill” and not “Mr. Lawrence” because I feel like I know the man, both through his creation (the show), and through his extra gift to his fans (the commentaries).

I don’t propose that the music industry stop pushing for greater stronger IP protection on the web or that ABC stop issuing take down notices for uploaded versions of its shows on youtube. I only mean to suggest that offering up a piece of the authentic you to your potentials fans may go farther than those protections ever will.


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No Enemies

For too many people, the law is something to fear, some ominous presence that is going to get them if they step out of line. Whether it’s a mislabeled item in a tax return, driving by a police officer even when going the speed limit, or a documentary film maker blurring the label on a Coke can, people operate under a cloud of fear that the law is just waiting to punish them for each and every mistake.

The perception is understandable, there are real stories out there the IRS hounding people, police officers having an itchy trigger finger on a radar gun (and their real gun) and intellectual property rights holders coming down hard on harmless users. Lawyers have a vested interest in this perception. If people are afraid of the consequences of making a mistake, they will pay for attorneys to keep them out of trouble. Don’t misunderstand me, many legal matters are quite complex and the expertise of experienced attorneys is legitimately necessary to navigate the issue. Lawyers are often necessary, but fearing the law is not.

I am an attorney. A young attorney with a vision that the law can be different. With the exception of criminal laws, most laws are actually written to enable people to do something: start a business, write a song, provide for their family. Even criminal laws are written with the intent of creating safe, secure societies where people feel enabled to go outside their homes without fear. It’s ironic, then, that many laws actually create fear in people.

I can’t rewrite society, nor would I set my goal that high. My intent with this blog is to take on one area of the law, Art Law, and try to demystify the important legal rules and regulations applying to the creation of art. I love that there are people out there trying to make the world a bit more beautiful, or say something important, or just have fun. I want them to be able to do that free from fear, not considering the law an enemy, but a helper.

The three key areas of law pertaining to artists are copyright, trademark, and contracts. Copyright deals with the created thing. Trademarks identify the source of a thing (art or otherwise). Contracts creates agreements between people and companies allowing them to use the services and ideas of the other. My aim is to keep postings short and to the point, focusing on one area of law, and stating why I think it matters to artists.

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