Mabfan's Musings

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.

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

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

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.

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 (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.

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.