On January 27, 2010 the First Circuit Court of Appeals issued a rare decision interpreting the Visual Artists Rights Act (VARA). VARA provides certain "moral rights" to the authors of works of visual art. (The text of VARA appears here; there are also conversations about VARA in Art Law Conversations.) There is not a lot of caselaw interpreting VARA, so when a federal Court of Appeals issues an in-depth decision such as this, it's a significant event.
This case involves a long-standing dispute between Swiss artist Christoph Büchel and the Massachesetts Museum of Contemporary Art (“MASS MoCA”).
Here's the background.
MASS MoCA strives to offer visual artists “the tools and time to create works of a scale and duration impossible to realize in the time and space-cramped conditions of most museums,” and prides itself on exposing its audiences to “all stages of art production: rehearsals, sculptural fabrication, and developmental workshops are frequently on view, as are finished works of art.” An area known as Building 5 is MASS MoCA’s signature exhibition space, which spans the length of a football field.
In 2006 Büchel conceived of an ambitious, football-field-sized art installation entitled Training Ground for Democracy, which was to be exhibited at MASS MoCA in Building 5. The project was to be Büchel’s largest venture to date; he conceived of the exhibit as “essentially a village, ... contain[ing] several major architectural and structural elements integrated into a whole, through which a visitor could walk (and climb).” Major components were to include a movie theater, a house, a bar, a mobile home, various sea containers, a bomb carousel, and an aircraft fuselage. Büchel was not always on-site as the exhibit was being prepared. Instead, under Büchel’s guidance from Switzerland, MASS MoCA was supposed to obtain and construct many of these components.
Things went very badly, very quickly. MASS MoCA felt its budget for the project swelling out of control. Büchel then became dissatisfied with the way in which MASS MoCA was implementing his instructions and procuring items necessary for the installation. The relationship deteriorated to the point where Büchel stated he would not allow the exhibit to open in his name, and he did not return to Massachusetts to complete the installation. MASS MoCA finally announced the cancellation of Training Ground, and contemporaneously publicized the opening of a new exhibit entitled Made at MASS MoCA, which was to be “a documentary project exploring the issues raised in the course of complex collaborative projects between artists and institutions.”
In order to enter Made at MASS MoCA, visitors would have to pass through Building 5, which still housed the materials and unfinished fabrications that were to have comprised elements of Training Ground for Democracy. MASS MoCA placed yellow tarpaulins over the unfinished Training Ground work. There was great dispute, however, about whether the tarps actually concealed the individual components and design elements of Training Ground, or whether they simply “hid an elephant behind a napkin,” effectively inviting individuals to peek behind the coverings and view Büchel’s unfinished work.
In May 2007 MASS MoCA went to court seeking a "declaratory judgment" that it would be OK for them to publicly display the unfinished components of Training Ground. Mr. Büchel responded with claims that he was entitled to relief under VARA because MASS MoCA had intentionally distorted and modified his work. He also claimed that displaying the work publicly without his permission constitued copyright infringment.
A complete legal analysis is beyond the scope of this blog post. Here, however, is a summary of the First Circuit's holdings:
1. VARA's protection of an artist's moral rights extends to unfinished creations.
2. The right of integrity under VARA protects artists from distortions, mutilations or modifications of their works that are prejudicial to their reputation or honor.
3. Mr. Büchel raised a viable claim that MASS MoCA violated his VARA right of integrity by modifying Training Ground over his objections in a manner that harmed his honor or reputation. (This issue will now go back to the lower court for resolution.)
4. Mr. Büchel raised a viable claim that MASS MoCA infringed his exclusive right under section 106(5) of the Copyright Act to display his work publicly. (This issue will now go back to the lower court for resolution.)
Saturday, January 30, 2010
Thursday, January 28, 2010
Wisconsin Adopts “Single-Publication Rule” For Internet Defamation
On January 27, 2010 the Wisconsin Court of Appeals adopted the “single publication rule” for defamation cases. Bottom line: once defamatory material is published online, subsequent “hits” or visits to that material do not constitute re-publication and the statute of limitations does not renew. Wisconsin courts had not previously addressed this issue.
Bob Uecker is the radio broadcaster for the Milwaukee Brewers. In June 2006, Mr. Uecker petitioned the Milwaukee County Circuit Court for an injunction against Ann E. Ladd alleging that Ms. Ladd, a self-described “devoted fan,” had continually harassed and stalked him for a period of years.
Mr. Uecker filed an affidavit in support of his allegations. According to Ms. Ladd, Mr. Uecker and/or the Milwaukee Brewers posted his affidavit to a website called thesmokinggun.com, on June 2, 2006. On September 8, 2008 Ms. Ladd filed a complaint alleging, among other things, that Mr. Uecker and the Brewers defamed her by posting the affidavit to that website.
An action to recover damages for a defamatory communication is barred if not commenced within two years after the cause of action accrues. WIS. STAT. § 893.57. (That means: you only have two years to sue, and the clock starts ticking when the defendant made public the allegedly defamatory information.)After a hearing, the circuit court concluded that Ms. Ladd’s claims for any matters occurring before September 7, 2006 were barred by this statute of limitation. She appealed, arguing that her cause of action renewed every time someone accessed the information online.
The Wisconsin Court of Appeals disagreed. Said the court:
This decision brings Wisconsin in line with other jurisdictions that have adopted the single publication rule. The rest of the decision is not particularly ground-breaking, but does serve as a useful outline of Wisconsin law regarding defamation and invasion of privacy, and the various privileges and defenses to such claims.
In the world of sports and entertainment, the celebrity is usually the party claiming to have been defamed – so in that sense this is not a decision about which artists and athletes are likely to be cheering. In today’s online world, however, the decision makes eminent sense.
Bob Uecker is the radio broadcaster for the Milwaukee Brewers. In June 2006, Mr. Uecker petitioned the Milwaukee County Circuit Court for an injunction against Ann E. Ladd alleging that Ms. Ladd, a self-described “devoted fan,” had continually harassed and stalked him for a period of years.
Mr. Uecker filed an affidavit in support of his allegations. According to Ms. Ladd, Mr. Uecker and/or the Milwaukee Brewers posted his affidavit to a website called thesmokinggun.com, on June 2, 2006. On September 8, 2008 Ms. Ladd filed a complaint alleging, among other things, that Mr. Uecker and the Brewers defamed her by posting the affidavit to that website.
An action to recover damages for a defamatory communication is barred if not commenced within two years after the cause of action accrues. WIS. STAT. § 893.57. (That means: you only have two years to sue, and the clock starts ticking when the defendant made public the allegedly defamatory information.)After a hearing, the circuit court concluded that Ms. Ladd’s claims for any matters occurring before September 7, 2006 were barred by this statute of limitation. She appealed, arguing that her cause of action renewed every time someone accessed the information online.
The Wisconsin Court of Appeals disagreed. Said the court:
We hold that “republishing” the allegedly defamatory information about Ladd on the Internet is not actionable. Accepting as we must on this review that Uecker or the Brewers were responsible for the initial publication to thesmokinggun.com on June 2, 2006, that act is outside the statute of limitations. Uecker and the Brewers have no control over other websites’ use or dissemination of the same information on the World Wide Web. We reject the notion that each “hit” or viewing of the information should be considered a new publication that retriggers the statute of limitations.
This decision brings Wisconsin in line with other jurisdictions that have adopted the single publication rule. The rest of the decision is not particularly ground-breaking, but does serve as a useful outline of Wisconsin law regarding defamation and invasion of privacy, and the various privileges and defenses to such claims.
In the world of sports and entertainment, the celebrity is usually the party claiming to have been defamed – so in that sense this is not a decision about which artists and athletes are likely to be cheering. In today’s online world, however, the decision makes eminent sense.
Monday, January 25, 2010
Copyright in Schools
I recently noticed the following question, on a legal services website:
Here's how I would respond.
Analyzing a copyright question is rarely simple, and it's always important to obtain legal advice specific to your facts (which this answer is not!)
In general, however, the first step is to ascertain whether the work itself is copyrightable (short phrases, facts and ideas, for example, are not eligible for copyright protection.) Next, if the work is copyrightable, determine whether the term of its copyright has yet expired in the United States. If the work was first published before 1923, it is in the public domain. Later works may also have fallen into the public domain for a variety of reasons, but determining this is rather complicated, and something for which you should definitely consult a copyright lawyer.
If the work is copyrightable and still subject to copyright protection, then either a.) you need a license from the copyright owner, or b.) there needs to be a "statutory exception" making it OK in your case to use the work without a license, or c.) your use needs to qualify as "fair use."
There is a statutory exception for public performance and display rendered in the course of "face to face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction." I cannot advise whether the competition you describe falls under this exception; again, it's something to examine with counsel.
Fair use is also completely fact-specific and requires application of a balancing test that examines four factors and numerous sub-factors. Do not make the mistake of assuming that your use qualifies as fair use just because you are a school. You and your counsel must apply the fair use balancing test.
I recognize this answer does not resolve your issue, but given the fact-intensive nature of this situation, the best advice is for your school district to obtain a definitive opinion from its counsel. If counsel is not comfortable in copyright law, an outside practitioner could be brought in. That might seem like overkill for a K-3 poetry competition, but I suspect the district will find that this is just the tip of the iceburg. Copyright issues are everywhere, especially in schools, and it would be wise for your district to undertake a district-wide examination and to enact reasonable policies in order to provide guidance for staff and students.
Good luck.
I am an educator. We have an oratorical competition for K-3 using poetry. Do I need to get permission for each poem they perform?
Here's how I would respond.
Analyzing a copyright question is rarely simple, and it's always important to obtain legal advice specific to your facts (which this answer is not!)
In general, however, the first step is to ascertain whether the work itself is copyrightable (short phrases, facts and ideas, for example, are not eligible for copyright protection.) Next, if the work is copyrightable, determine whether the term of its copyright has yet expired in the United States. If the work was first published before 1923, it is in the public domain. Later works may also have fallen into the public domain for a variety of reasons, but determining this is rather complicated, and something for which you should definitely consult a copyright lawyer.
If the work is copyrightable and still subject to copyright protection, then either a.) you need a license from the copyright owner, or b.) there needs to be a "statutory exception" making it OK in your case to use the work without a license, or c.) your use needs to qualify as "fair use."
There is a statutory exception for public performance and display rendered in the course of "face to face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction." I cannot advise whether the competition you describe falls under this exception; again, it's something to examine with counsel.
Fair use is also completely fact-specific and requires application of a balancing test that examines four factors and numerous sub-factors. Do not make the mistake of assuming that your use qualifies as fair use just because you are a school. You and your counsel must apply the fair use balancing test.
I recognize this answer does not resolve your issue, but given the fact-intensive nature of this situation, the best advice is for your school district to obtain a definitive opinion from its counsel. If counsel is not comfortable in copyright law, an outside practitioner could be brought in. That might seem like overkill for a K-3 poetry competition, but I suspect the district will find that this is just the tip of the iceburg. Copyright issues are everywhere, especially in schools, and it would be wise for your district to undertake a district-wide examination and to enact reasonable policies in order to provide guidance for staff and students.
Good luck.
Saturday, November 07, 2009
Copyright: Registering Multiple Works, Together
Is it possible to register copyright in more than one work, with a single application and a single fee?
Yes.
But they don’t make it easy. (Seriously. Just try and find what I’m about to tell you, on the Copyright Office website.) And you're probably going to read this post and say, "what??" And maybe that's the point. Simple, single work copyright registrations are things you can learn to do on your own. Registering multiple works together, is more appropriately a project for your copyright attorney. It's really complicated. If you do it yourself and make a mistake, your registration is vulnerable to being invalidated in a dispute. And that would be bad. So read on, if only to realize this is something you shouldn't be doing yourself.
There are three ways to register multiple works, together. And words make a big difference, so set your regular vocabulary aside, and understand that when we use certain words in this context (namely, the words “group” and “collection”) they have very specific meanings.
- GROUP registration
- Copyright law requires that GROUP registration be permitted for works by the same author all first published as contributions to periodicals.
- Copyright law permits the Register of Copyrights to specify by regulation other types of works that are eligible for GROUP registration.
- The Register of Copyright has specified by regulation that the following types of works are eligible for GROUP registration:
i. Automated databases
ii. Related serials
iii. Daily newspapers
iv. Daily newsletters
v. Published photographs
- So what does all this mean? If the works you’re trying to register together are not of the types (listed above) that are specifically (either by law or regulation) eligible for GROUP registration: GROUP registration is not an option for you.
- If GROUP registration is an option for you:
i. Make sure your lawyer is reading the regulations really carefully because the GROUP registration requirements for each type of work are not set out on the Copyright Office website, and they’re all different.
ii. You can’t register online. GROUP registration applications have to be made on paper.
- SINGLE WORK registration
- There are two ways you can register multiple works together, as a SINGLE WORK
- If the works you are registering have been published, you may register together those that were first published in a SINGLE UNIT OF PUBLICATION.
- If the works you are registering are unpublished, you might be able to register them together as a COLLECTION.
- These types of registrations can be accomplished online.
- But again, there are a lot of very specific requirements that you’re not going to find on the Copyright Office website, so this is an issue where you’re best advised to seek advice from a copyright attorney.
- It’s really important to understand what “publication” means in this context. If you need a refresher, check my blog post: http://artslawyer.blogspot.com/search/label/publication
Thursday, September 17, 2009
Applying For Tax Exempt Status: Higher (and Lower) Fees in 2010
Here's a tip for nonprofits planning to apply for tax exempt status: get it in gear and apply in 2009, before the fees go up.
As the IRS advises (see explanation, below), an online application system to be known as Cyber Assistant is on the horizon. Once it's launched, the application fees will change again and there will be a reduced fee for organizations applying via Cyber Assistant, regardless of size.
Don't just wait for Cyber Assistant, though, in order to save money. Remember that you face additional hurdles if you apply more than 27 months after the end of the month in which your organization was legally formed.
From the IRS website:
EO Exemption Application User Fees to Increase in 2010
User fees will increase for all applications for exemption (Forms 1023, 1024, and 1028) postmarked after January 3, 2010:
• $400 for organizations whose gross receipts are $10,000 or less annually over a 4-year period
• $850 for organizations whose gross receipts exceed $10,000 annually over a 4-year period
• $3,000 for group exemption letters.
A complete schedule of all user fees will be published in the annual procedure released in January 2010.
Cyber Assistant, a Web-based software program designed to help 501(c)(3) applicants prepare a complete and accurate Form 1023 application, will become available during 2010. Once the IRS announces the availability of Cyber Assistant, the user fees will change again:
• $200 for organizations using Cyber Assistant (regardless of size) to prepare their Form 1023
• $850 for all other organizations not using Cyber Assistant (regardless of size) to prepare their Form 1023.
IRS will announce when Cyber Assistant is available and the effective date of the user fee change. Subscribe to the EO Update to automatically receive an alert that Cyber Assistant is available.
This post is not legal advice. Consult your own attorney.
Copyright 2009 Elizabeth T Russell
As the IRS advises (see explanation, below), an online application system to be known as Cyber Assistant is on the horizon. Once it's launched, the application fees will change again and there will be a reduced fee for organizations applying via Cyber Assistant, regardless of size.
Don't just wait for Cyber Assistant, though, in order to save money. Remember that you face additional hurdles if you apply more than 27 months after the end of the month in which your organization was legally formed.
From the IRS website:
EO Exemption Application User Fees to Increase in 2010
User fees will increase for all applications for exemption (Forms 1023, 1024, and 1028) postmarked after January 3, 2010:
• $400 for organizations whose gross receipts are $10,000 or less annually over a 4-year period
• $850 for organizations whose gross receipts exceed $10,000 annually over a 4-year period
• $3,000 for group exemption letters.
A complete schedule of all user fees will be published in the annual procedure released in January 2010.
Cyber Assistant, a Web-based software program designed to help 501(c)(3) applicants prepare a complete and accurate Form 1023 application, will become available during 2010. Once the IRS announces the availability of Cyber Assistant, the user fees will change again:
• $200 for organizations using Cyber Assistant (regardless of size) to prepare their Form 1023
• $850 for all other organizations not using Cyber Assistant (regardless of size) to prepare their Form 1023.
IRS will announce when Cyber Assistant is available and the effective date of the user fee change. Subscribe to the EO Update to automatically receive an alert that Cyber Assistant is available.
This post is not legal advice. Consult your own attorney.
Copyright 2009 Elizabeth T Russell
Wednesday, September 16, 2009
Eight Tips For Website Owners
1. Make sure your domain isn’t somebody else’s trademark. People often think that being the first to register a particular word (or combination of words) as a domain confers unlimited rights to use those words. Not true. If your domain happens to be another company’s trademark (or is confusingly similar to another company’s trademark), that company could force you to cease your use. For this reason, it’s important to “vet” your proposed domain name with a trademark attorney, early on.
2. Use your trademark appropriately on your website. Once you’ve cleared and protected your own trademark, make sure you depict it correctly on your website. This really matters! Using your trademark inappropriately (e.g., using it as a noun instead of an adjective, or using incorrect markings) could cause you to lose your trademark protection. If you maintain the site yourself, make sure you understand the usage rules. If you have staff or contractors maintaining the site, make sure they’re properly trained.
3. Don’t commit copyright infringement. One of your biggest risks for web-related liability is failing to clear licenses for the content on your site. Think about the text, images, music, video, maps…pretty much everything on the site. If you or your employee did not create this material, you almost certainly need licenses. Do not underestimate the importance of obtaining them. Statutory damages for copyright infringement can reach as high as $150,000 per infringement.
4. Understand what contractors own – and what you may not. If your employee created copyrightable material in the course of his/her employment, you own the copyright. The same is not true for material created by contractors, even though you specifically paid the contractor to create the material. Make sure you have properly drafted contracts with your contractors, before they create any copyrightable material for you.
5. Don’t be held liable when others commit copyright infringement. Does your site have a chat room…a forum…a blog? Do you provide others with email accounts or ecommerce opportunities? If your website permits third parties to post material (commonly referred to as “User Generated Content” or “UGC”) and it turns out the UGC is infringing, you’re just as liable for copyright infringement as the user who posted the material. Fortunately, there are steps you can take to protect yourself. The Digital Millennium Copyright Act (DMCA) offers procedures that can provide “safe harbor” in these situations. Consult with your attorney to make sure you comply fully with the DMCA’s requirements Follow the procedures properly, and you may be eligible for safe harbor. Fail to do so, and you’re a potential defendant.
6. Make sure your Terms of Use Agreement is likely to be enforceable. How extensive your Terms of Use Agreement needs to be, depends on what you do with your website. If the site is purely informational, the TOU can be brief. If you engage in ecommerce or provide opportunities for UGC, the TOU should be substantially more detailed. Either way, though, the TOU is a contract between you and the users of your website. And a contract does you no good if it’s not enforceable. Don’t make the mistake of copying a TOU from somebody else’s website and using it as your own. (For one thing, that’s copyright infringement!) It’s not just the words that matter; it’s how the language of the TOU correlates to what you actually do on the site and how you interact with your users. Work with your attorney to make sure your TOU will work for you when you need it.
7. Don’t fall into privacy traps. Trap: If you collect personally identifying information from website users under the age of 13, you must adopt policies and procedures that comply with the federal Children’s Online Privacy Protection Act. Some states also have statutes that regulate online privacy. Trap: You are bound by all representations you make in your privacy policies. Often, carelessly drafted policies make representations that are difficult, if not impossible, to uphold. One very common error is stating, “We will never share your information with anyone, ever.”
8. Be afraid of online contests. Never sponsor an online contest without first consulting your attorney. And be prepared for the attorney to tell you things you don’t want to hear. Online contests create a minefield of potential liability. Doing it right is going to mean a substantial investment of time and resources.
This post is not legal advice. Consult your own attorney.
Copyright 2009 Elizabeth T Russell
2. Use your trademark appropriately on your website. Once you’ve cleared and protected your own trademark, make sure you depict it correctly on your website. This really matters! Using your trademark inappropriately (e.g., using it as a noun instead of an adjective, or using incorrect markings) could cause you to lose your trademark protection. If you maintain the site yourself, make sure you understand the usage rules. If you have staff or contractors maintaining the site, make sure they’re properly trained.
3. Don’t commit copyright infringement. One of your biggest risks for web-related liability is failing to clear licenses for the content on your site. Think about the text, images, music, video, maps…pretty much everything on the site. If you or your employee did not create this material, you almost certainly need licenses. Do not underestimate the importance of obtaining them. Statutory damages for copyright infringement can reach as high as $150,000 per infringement.
4. Understand what contractors own – and what you may not. If your employee created copyrightable material in the course of his/her employment, you own the copyright. The same is not true for material created by contractors, even though you specifically paid the contractor to create the material. Make sure you have properly drafted contracts with your contractors, before they create any copyrightable material for you.
5. Don’t be held liable when others commit copyright infringement. Does your site have a chat room…a forum…a blog? Do you provide others with email accounts or ecommerce opportunities? If your website permits third parties to post material (commonly referred to as “User Generated Content” or “UGC”) and it turns out the UGC is infringing, you’re just as liable for copyright infringement as the user who posted the material. Fortunately, there are steps you can take to protect yourself. The Digital Millennium Copyright Act (DMCA) offers procedures that can provide “safe harbor” in these situations. Consult with your attorney to make sure you comply fully with the DMCA’s requirements Follow the procedures properly, and you may be eligible for safe harbor. Fail to do so, and you’re a potential defendant.
6. Make sure your Terms of Use Agreement is likely to be enforceable. How extensive your Terms of Use Agreement needs to be, depends on what you do with your website. If the site is purely informational, the TOU can be brief. If you engage in ecommerce or provide opportunities for UGC, the TOU should be substantially more detailed. Either way, though, the TOU is a contract between you and the users of your website. And a contract does you no good if it’s not enforceable. Don’t make the mistake of copying a TOU from somebody else’s website and using it as your own. (For one thing, that’s copyright infringement!) It’s not just the words that matter; it’s how the language of the TOU correlates to what you actually do on the site and how you interact with your users. Work with your attorney to make sure your TOU will work for you when you need it.
7. Don’t fall into privacy traps. Trap: If you collect personally identifying information from website users under the age of 13, you must adopt policies and procedures that comply with the federal Children’s Online Privacy Protection Act. Some states also have statutes that regulate online privacy. Trap: You are bound by all representations you make in your privacy policies. Often, carelessly drafted policies make representations that are difficult, if not impossible, to uphold. One very common error is stating, “We will never share your information with anyone, ever.”
8. Be afraid of online contests. Never sponsor an online contest without first consulting your attorney. And be prepared for the attorney to tell you things you don’t want to hear. Online contests create a minefield of potential liability. Doing it right is going to mean a substantial investment of time and resources.
This post is not legal advice. Consult your own attorney.
Copyright 2009 Elizabeth T Russell
Friday, July 31, 2009
Copyright Office Fees Change on August 1
Many Copyright Office fees will be changing on August 1, 2009.
The fee for online registration of a basic claim through the electronic Copyright Office remains the same at $35.
Registration of a basic claim on Form CO will now be $50, while registration of a basic claim on paper forms will be $65.
A complete fee schedule and further information appears here.
The fee for online registration of a basic claim through the electronic Copyright Office remains the same at $35.
Registration of a basic claim on Form CO will now be $50, while registration of a basic claim on paper forms will be $65.
A complete fee schedule and further information appears here.
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