Meanwhile, over on Facebook, I posted the following:

I have a slightly more prosaic question about the Rolling Stone cover.

From what I understand, the photograph of the bomber running on the cover of Rolling Stone is a selfie, meaning that the bomber took the photo himself, of himself. According to US copyright law, the photographer generally owns the copyright to any photograph he or she takes (unless a previous arrangement is made). Doesn't that mean that the bomber owns the copyright on this photo? If so, what legal right does Rolling Stone have to publish the photo on their cover?

Is it some sort of fair use? Are they simply violating the bomber's copyright? Are they (and I would hate to think this is the case) paying the bomber a standard licensing fee for the photo?

Does anyone know?

(Please keep comments on this topic only.)

It's led to a lot of interesting discussion. Here's a link for anyone interested in reading the thread:

Facebook Thread: Copyright and that Rolling Stone Cover
Readers here know that I'm very interested in copyright issues, and that as a writer myself, I do my best to be respectful of the copyrights of others. It bothers me when creators are not compensated fairly for their work, and I personally don't like finding myself in a situation where I might want to violate copyright laws. In general, if there is content I want to read or watch, I prefer to pay a fair price for that content so that money flows to the creator's pocket.

A problem comes up, however, when one wants to purchase content, but said content is unavailable.

Infrequently, this is because the author or creator of said content wants to make sure that the content is never again available for purchase. For example, Isaac Asimov discovered once that the plot and details of one of his short stories had been unintentionally plagiarized from another story that he had read but then forgotten about. Asimov passed his payment along to the other writer and refused to let that particular story ever be reprinted.

More often, though, when one wants to purchase unavailable content, such as a book or a TV show, the content isn't unavailable due to the choice of the creator. Usually, the content has just fallen out of print (or OP for those of us in the biz), and the creator has no easy way to bring it back into print again, even if there is a small demand for it.

For example, I remember that in the early 1990s, I wanted to get a copy of J. Michael Straczynski's book on screenwriting. The new edition didn't yet exist, but the old edition was out of print and the Internet had not yet grown to the point where it would be easy to track a copy down. The local library in Forest Hills, Queens had a copy of the book, however, so I checked it out and photocopied the whole thing for myself.

But before I did that, I had run into Straczynski at a convention and secured his permission to do so. In that case, I made sure to do the right thing because I could.

In another case, I wasn't able to do the right thing until last year. I was a fan of the 1982-1983 TV show Voyagers!, which was shown on television before my family had a VCR. When I discovered that someone I knew had copies of all the episodes on VHS tapes, I asked her for a set and she generously provided me with one. It wasn't until 2007 that the current owners of the show released it for purchase (in DVD format). I made sure to buy a copy of the series as soon as it was available.

The fact is that I wanted to own the series, and I would have rather contacted the copyright owners for permission to make copies, but here's the rub – I had no way of knowing who the copyright owners were. Whereas, if the series had been available for legal purchase before 2007, I would have bought it.

I mention all this because yesterday's New York Times included an interesting Ethicist column by Randy Cohen, Flight Risk. To summarize: a group of pilots in an online forum wanted to purchase copies of a book that was out of print and was going to remain so despite their inquiries. So one of the members of the forum posted an electronic copy for people to download, and another member suggested that they send checks to the author as payment. The question, of course: was this ethical?

Cohen's answer was that it might be illegal but not necessarily unethical. However, he did suggest that if the author or publisher of the book had chosen not to reprint the book that they ought to secure permission for their online posting.

As it turned out, the author of the book returned all checks that were sent to him and through Cohen gave the pilots blanket permission to post the book and make copies. So there's a happy ending

But at the same time, the whole situation got me thinking. The publishing industry exists on many premises, one of which is that it's simply too much trouble for "content providers" (i.e., writers) to print and distribute copies of their own work in an appealing form. But if a writer has already become well-established through previous publication, and has an OP work or new work that readers might want, the writer now has options that were heretofore unavailable to serve as his or her own publisher. And readers now have an opportunity to see more of their money flow to the writer, and not to the middleman.

I know much of this has been mentioned before, and it probably will be again. I was just amused to find the issue pop up in the Ethicist.
Folks who read here regularly know that I have a strong belief in upholding copyright law. Part of it is, admittedly, in my own self interest, as I've created works that have some value to them (or so I'd like to think). I would say that anyone who makes money off their creativity has some vested interest in maintaining certain rights over their work, no matter what they may say aloud.

There's also a certain level of respect for the creator that copyright should imply, but that doesn't always come along with it. A few years back, a man approached me about reprinting "Kaddish for the Last Survivor" for distribution to synagogues during Yom Ha'Shoah (Holocaust Remembrance Day). In his very first email to me, he said that he was offering no money, but that the exposure would be good for me. I pointed out to him that I earn part of my living off of my writing – in fact, there was a time when I had no other source of income – and I suggested that he pay me $100. His response was to say forget it. The irony was that if he had approached me from the start by asking how much I would charge him for the reprint rights, I would have offered the story for free. (A lesson to everyone.) But approaching me as if my work was valuable enough for reprinting and sharing, but not valuable enough to give me recompense, rubbed me the wrong way.

Of course, it could have been worse. He could have run off copies without ever telling me.

The real difficulty comes when people are either ignorant or clueless about copyright. Eric Berlin, who is a playwright among many other things, just shared an incident under the blog post title Dusting off my playwright hat for a moment. A woman who is part of a group putting on his play has invited him to attend the performance. The only problem is, it appears that the group might not have bothered to license the rights. I say "might not" because Berlin notes the possibility that they might have tried to secure the rights but failed, due to the disorganization that exists at Samuel French.

However, assuming the group did in fact not bother securing rights, it puts Berlin in an interesting situation. The young woman who is playing the lead has praised the play very strongly, and any writer would love to hear his words praised in that fashion. But...but. If we don't pay our creative class for their work – if in fact we remain ignorant to the financial value their work should have to them – then what are we as a society saying to them?

Copyright © Michael A. Burstein
Back in April of 2005, I mentioned the passage of the Family Entertainment and Copyright Act and then gave my own opinion on the law.

To remind everyone, the Act created an exemption in copyright law that allowed companies to create filtering software for movies on DVD. So if you bought or rented a film that had content the company considered objectionable, such as foul language, excessive violence, or nudity, the software would cause those section to be skipped when you played the DVD.

At the time, we had a lot of good, respectful debate on whether or not this was a good idea, and I pointed out why I myself felt uncomfortable with the concept.

Well, I'm not the only one uncomfortable with the idea of companies "sanitizing" films.. So is Judge Richard P. Matsch. Last Thursday, in Denver, Colorado, he ruled that selling an edited version of a film is an "illegitimate business." However, his ruling seems to be aimed solely at companies that sell an actual new version of the film, rather than those that create software to used with a licensed copy. For example, ClearPlay, which creates software filters, issued this press release, which reminds people that what their company does is protected by the Act. The companies named in the lawsuit, such as CleanFilms and CleanFlicks, would buy a new copy of the movie for each edited one they sold, a way to avoid accusations of piracy.

I'm fascinated to see what happens next...

Copyright © Michael Burstein
Just last month, I began discussing issues of copyright and plagiarism. For those of you who are interested in revisiting those discussions, I've created a new tag: copyright. You may recall that in one of the posts I complained about Lehman High School's unlicensed production of Chicago. A student at the school replied anonymously, and one of the questions he asked was why I should care about what happens at their school.

I gave an answer to his question, but in case he's still reading, someone else has come up with an even better answer.

Friend and writer Adam-Troy Castro recently had to deal with a plagiarist who violated his copyright by posting an excerpt from his powerful story "The Juggler" on a vampire role-playing board, and represented it as his own work. When confronted, the malefactor removed the excerpt and apologized. But a few other people in the RPG complained that this wasn't so big a deal.

So by invitation from one of the other RPG board participants, Adam wrote a response, laying out exactly why this was, in fact, a big deal. He's posted his response on his own newsgroup under the title Plagiarism Note, and I encourage any and all of you to go read it. The gist of it can be summed up in one sentence from the letter: "The fact is that plagiarism is a serious crime with serious consequences." And Adam explains exactly what those consequences can be, and how they not only hurt the victim, but damage the public good as well.

Copyright © Michael Burstein
Earlier today, I found an anonymous reply from a student at Lehman High School. The student, whom I shall think of as "he" since I have no way of knowing their sex, was annoyed with some of what I had said about their recent copyright infringement case involving the musical Chicago.

I deleted his comment for a few reasons. First of all, I used to require all anonymous posters to identify themselves in the body of their post. This person didn't, and sadly, a lot of people have been ignoring my request. So I've now gone to account holder comments only.

But I also deleted it because the response included insults and foul language. My blog is my space, and I don't allow either of those things here. It says on my profile page that I reserve the right to delete any comments I deem inappropriate. And quite a bit of what this student said was inappropriate.

The fact is, though, that the student did have one legitimate complaint with my post, and a few that bear responding to. Had he replied in a more polite manner, I'd have left his reply up and responded directly. I didn't because I don't choose to leave insults up in my own space. However, should this student actually be checking my blog for a response, I thought I'd reply to some of his concerns.

1. The student complained about my characterization of the students whining to the press. He said that the press came to them, and that they did not whine.

My reply: This is quite possibly a fair point. I don't know how the press got involved, although I suspect that someone from the school got them involved. And I don't know if the students whined. But I do know that almost all the articles I read were biased in favor of the students, presenting their disappointment in such a palpable way that I could practically see their tears in my mind.

And, more to the point, I never said that the students whined to the press. I said that the school did. The student who replied to me does not seem to have caught that distinction in my post.

2. The students said that the New York City council members assisted them without their asking for it.

My reply: Again, that may be true, but it's irrelevant. I never said I was upset at the students for getting the city councilors involved. I said I was upset with the city councilors for choosing to get involved. Again, a distinction that the student seems to have missed.

3. The student suggested that if I wanted them to learn about copyright infringement, I should visit Lehman High School and teach them myself. He also wonders why I'm concerned with the lessons that they learn.

My reply: I'd been a teacher for many years, and I was always responsible for making sure that my students knew much more than the material I was technically teaching them. But in this case, it's not really my responsibility to teach the students of Lehman High about respecting copyright law. Frankly, in this particular case that's the job of the drama department. I don't think the student quite got that.

As for why I'm concerned with the lessons that they learn -- why shouldn't I be? If a school in Kansas chooses to teach intelligent design instead of evolution, for example, that has a detrimental effect on society as a whole. In this case, a school in the Bronx has taught a bunch of students that if you're caught breaking the law, you can still get away with it if you get powerful people on your side. To me, that's a chilling lesson, and not one we should be teaching our future voters.

To my correspondent: if you're still out there, I hope you'll take these replies into consideration. And if you wish to provide further correction and detail on just how the press got involved, I'd be more than interested in finding out. Just please be polite about it.

And finally, if any other students from Lehman High are reading my blog, please take note: I don't blame you for what happened, and I'm glad you got a chance to see all your hard rehearsal work pay off in the end. But I hope that you will take from this a better lesson than the one I'm afraid you've been taught, which is that it's easier to beg forgiveness than ask permission. I know of many other students who would have loved to perform in a school musical version of Chicago and were denied the chance because their schools obeyed the law and respected creators' rights. One day, one of you may be the famous playwright who discovers a school putting on one of your plays without permission. When that happens, I hope you'll choose to be as generous with that school as the producers of Chicago were with you. Because if you're not, then that would be hypocritical.

Copyright © Michael A. Burstein
For those of you who found our discussion of the Lehman High School's production of "Chicago" interesting, you might also be interested in this post by [ profile] lzernechel. There's a link to it in the comments of my post, but I didn't want it to get lost there. Ms. Zernechel teaches Theatrical Lighting Design and Stage Management at Michigan State University so she speaks from the perspective of one involved in the current debate in academic theatre.
Yesterday, I came across the article That's Show Biz (and a Lesson in Copyright Law) in the New York Times. The article summarized a series of events that happened last week involving a student production of the musical "Chicago" at Herbert H. Lehman High School in the Bronx, which is being performed this weekend. For those of you who haven't heard about this yet, the story goes as follows.

The school drama teacher, Anthony Cerrini, decided that the school should put on a student production of the musical. He reconstructed the book by taking dialogue from the Internet, transcribing some of the 2002 film, and then writing some on his own. (Already I'm wondering what he was thinking.) The school bought costumes and built sets, and for the past few months a student cast has been rehearing.

And then, when the advertisements for the show were sent out, the Samuel French company, which controls the licensing rights for "Chicago," very properly sent them a cease and desist notice. After all, the school had not asked for permission, had not paid fees to the copyright holder, and was putting up a production too geographically close to another production (which, in this case, happened to be the one on Broadway).

So what did the school do? They whined. To the press. Two days ago, the New York Daily News ran the article Stop the music!, focusing on the poor kids who were crying their eyes out because all their hard work would be for nothing.

Now, I'm all in favor of going to the press if an injustice needs to be fixed. A few years ago, Stuyvesant High School went to the press when one of the two FedEx boxes of Westinghouse Science Talent Search competition papers that they had sent to Washington, D.C, arrived a few hours after the deadline. FedEx had picked up both boxes at the same time, and had guaranteed delivery by the deadline, but only one box made it in time. So when it looked like half their students' papers weren't going to be accepted because FedEx screwed up, the school administration went to the press. Public opinion threatened to go against both Westinghouse and FedEx, and so, in a stunning reversal for the first time in history, the Westinghouse Science Talent Search accepted the late papers. The next year, they changed their deadline rule, stating that if the papers were delivered by a carrier who guaranteed delivery by deadline, the papers would be accepted if a record proved that they had been picked up by the carrier within a reasonable amount of time beforehand.

I was fine with that turn of events because in that case, it was not the fault of the school or the students. But in this case, the mistake was precisely the fault of the school. The school principal himself , Robert Leder, even said that for the past 27 years they have never applied for a license when putting on a show. I'm boggled by this man's ignorance of copyright law.

And I'm boggled that public pressure got the rights owners to grant permission for "a single unauthorized, unlicensed performance at the school," as the Times put it. (On a side note, if they've given permission, how is it that the performance is now unauthorized and unlicensed?)

But I'm not just boggled. I'm appalled. I'm appalled that four City Council members and Public Advocate Betsy Gotbaum planned to stage a protest in front of the Ambassador Theater where "Chicago" is currently performing. I'm appalled that Samuel French is being cast as the bad guy in this case. And I'm appalled at the message this is sending to the students. They haven't learned the proper lesson here, that the copyright of artists and writers must be protected. Instead, they've learned the old adage that it's easier to beg forgiveness than to ask permission.

I'm also upset. I'm upset because I'm a writer, and I've had people also appropriate my work without permission. Now some people might take the side of the students, because they see how much money "Chicago" rakes in for its creators and wonder what the harm one little student production can do. Well, I've met people who have their plays licensed by Samuel French, and many of them rely on these license fees for a living. Most playwrights aren't raking in the dough, and they depend on these amateur productions for their bread and butter. A case like this makes it more likely that some other school somewhere will decide to put on a minor play without permission, essentially taking money from a playwright's pocket.

But I'm not just upset because I'm a writer. For many years I was a teacher, at schools that put on many theatrical productions a year. Every single drama department at the schools where I taught made damn sure to license the rights to plays and musicals before performing them. The way I see it, all the schools that do the right thing, that respect copyright law and apply for legal licenses, are being punished. The message being sent is that a school which flouts the law will be rewarded if enough people whine about it.

I am gratified by two developments, though. First, Joel Klein, the New York City schools chancellor, is going to send out a statement immediately to remind all the schools about intellectual property laws.

And second, in light of what Leder said about never having applied for a license before, Samuel French is going to look into the school's productions from over the past 27 years. As Charles Van Nostrand, the president of Samuel French, said in the Times, "I'm a little curious about what those other 27 years were."

Go get them, Mr. Van Nostrand.
In the midst of all this talk about Kaavya Viswanathan, David Leonhardt over at the New York Times has pointed out that the real significant plagiarism scandal has fallen under everyone's radar.

In today's article, Rule No. 35: Reread Rule on Integrity, Leonhardt reminds everyone about William J. Swanson, the chief executive of Raytheon. For many years, Swanson has given away a book titled "Swanson's Unwritten Rules of Management," a list of "common-sense maxims" about doing well and doing right in the business world. But last month, engineer Carl Durrenberger discovered that about half of the maxims were lifted almost verbatim from a 1944 work by W. J. King titled "The Unwritten Laws of Engineering." Durrenberger blogged about this on April 20th, and the response from corporate America has been almost nil. Swanson has shrugged it off, and Raytheon is essentially standing behind him.

No matter what else we may say about Viswanathan, the fact is that she is a 19-year-old college sophomore. In our society, we tend to expect that younger people will make mistakes and then learn from then. I imagine that Viswanathan has learned some valuable lessons for the future, and I wouldn't be surprised if her experience leads her to become a better person for it.

But where's the outcry about Swanson? As Leonhardt points out, this man runs an 80,000-employee company and is supposed to be a leader. And a 57-year-old should presumably have better judgment than a 19-year-old. Shouldn't he admit his mistake and take steps to see that credit goes where credit is due?

At the very least, it does seem unfair that Viswanathan is undergoing such a public pillorying at the same time that Swanson's plagiarism is essentially being ignored.
I haven't been following the Kaavya Viswanathan plagiarism scandal too closely because I've had friends doing it for me. However, I do want to note one speculative point that I made yesterday that appears to be correct.

Yesterday, writer Stephen Leigh ([ profile] sleigh) noted in this post that the book was put together by a book packager. I suggested in one of my replies that it was entirely possible that the packager was the one who really committed the plagiarism. (Still, Viswanathan would have to take full responsibility, since it is her name on the book.)

Well, there are two articles I found today that would appear to substantiate my theory.

First, today's New York Times article "A Second Ripple in Plagiarism Scandal" points out that some passages in the Viswanathan novel were lifted from yet another book, implying that the plagiarism was deliberate.

Secondly, the Harvard Independent article "Kaavya Case Not First Plagiarism Controversy for Opal Mehta Packager" points out that the packager had been found guilty of committing plagiarism before.

Methinks the packager is mostly at fault, but as I said before, Viswanathan has to take responsibility as well.
First of all, I'd like to thank everyone who offered up comments on this act in my post from yesterday. People had a lot of well-thought out opinions to share, and even the disagreements seemed respectful. You gave me a lot to ponder.

I didn't offer my own opinion yesterday because, quite frankly, I'm still not completely sure how I feel about this. One the one hand, I do agree that once someone buys a book or a DVD movie, they have the right to watch it or edit it as they want to their own satisfaction. Often, when I reread a book I've enjoyed, I will skip parts that I now find boring. And, when watching certain movies with what I consider excessive violence or gross scenes, I'll cover my eyes or look away if I feel disturbed by what I'm seeing.

That said, however, I still have some discomfort about the concept of ClearPlay filters. (I'm also disturbed by the idea of the government passing legislation that seems to exist to benefit one particular company, but that's a different issue.) I think I've managed to outline three reasons for my discomfort below, if anyone's interested.

So here are the reasons why I have mixed feelings about the filtering software and the new legislation:

1. Mass production -- not really my choice of what gets cut

My first issue with this software is a response to the idea that once I own a DVD I have the right to watch it as I want. While this is true, the difference with ClearPlay is that it doesn't exist to help me with my own individual choice. Instead, it creates a mass-produced set of choices which are given to everyone. Something about this disturbs me, because it feels like I'm giving up a certain amount of choice to someone else.

2. Profiting from a new version

Although the Act clearly prohibits someone from selling a remastered DVD with the objectionable scenes cut from it (a compromise offered to the studios), the fact is that a company is still making a profit from altering someone else's work, even if the buyers still have to give money to the studios for the original DVD. It seems to me that there's a legal hair here that's been split in a way that leads to a slippery slope. (Mixed metaphors 'r' us.) The end result of the two marketing strategies -- a filter or a remastered DVD -- is equivalent: a new version of the film. And in both cases, someone other than the studio is making a profit.

I look at it this way. Suppose I wrote a novel, and someone else out there typed up a set of notes telling readers which pages they should skip. Then suppose they sold that set of pages to anyone who wanted, as long as they had proof that the buyer had already bought a copy of my novel. Now, on the one hand, they're clearly not cutting into whatever amount of money I'm making from my own book. But on the other hand, they're making money off of the fact that people have bought my book. It could be argued that their set of notes is equivalent to a derivative work, such as fanfic or a role-playing game based on my novel. And I would be very upset if someone made money off of either of those things without a proper license.

In fact, let's extend this argument to the "fan vid" concept. Most fan vid creators I know respect the copyright of the studios, and don't sell their vids for a profit. Now, suppose instead of creating a remastered DVD, a fan vid creator programmed a filter to create their vid for you when you popped in the appropriate DVD. Would they now have the right to charge for that filter, and make a profit?

3. Alteration of "art," or at least plot

An article I read a while back about ClearPlay pointed out that the filters sometimes chop up the movies in ways that make it difficult to follow the plot. Here's a made up example. Suppose there's a movie where two characters sleep with each other, and then one of them betrays the other using information they discussed while in bed together. By deleting the bedroom scene, ClearPlay software would also delete the vital plot point, making the movie harder to follow. Would the viewer blame the filter or the movie maker for the hard-to-follow story?

So there's where I currently stand. I welcome more reasoned, passionate, and respectful debate from anyone who still wishes to discuss the issue.
Have people seen the AP article on the Family Entertainment and Copyright Act? The link to the Boston Globe webpage of the article is here, and the link to the NY Times webpage with the article is here. I'm surprised I haven't seen more discussion about it.

Basically, the bill -- which is now law -- creates an exemption in copyright law, which protects companies like ClearPlay. (In fact, the more cynical critics have claimed that the bill's sole purpose was to benefit this one company.) ClearPlay sells filters for your DVD players that automatically skip sections of DVDs. The filters are programmed to cut material some might consider offensive, like sex, violence, or language. The idea is that parents could let their children watch any DVD movie and know that certain scenes they might object to will be cut.

The movie studios have been fighting ClearPlay, claiming that what they're doing is a violation of copyright. Their basic argument is that by changing the content of the films, the filters are creating a new version of the film which is inconsistent with the artistic intent of the creators. Although the bill now allows ClearPlay to sell its filters, the bill does acknowledge that selling a "remixed" copy of the film on a DVD is a copyright violation. So while a company could sell you a preprogrammed filter that would skip certain scenes in certain movies, they can't sell you a DVD with those scenes cut. Of course, the problem ClearPlay has is that the filters have to be programmed on a per-movie basis. If you rented or bought a DVD that the filter wasn't programmed to edit, the movie would run as normal, with whatever sex, violence, and language it has. So if you buy one of these filters, you also have to make sure you only watch certain movies and not others, if you want the "objectionable" scenes edited out.

So...opinions? Should companies like ClearPlay have the right to do this? Does it differ from the way films are edited for television, since in that case the studios are usually consulted? Does this technology and the new law have implications for the world of fan fiction or fan videos? Where would you draw the line?

House of Mabfan: lots of questions, no answers.

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