Tony Falzone is the Deputy General Counsel at Pinterest, Inc.
Prior to joining Pinterest, Tony co-founded CIS’s Fair Use Project, which he led as its Executive Director from 2006 to 2012. In the course of his work at CIS, Tony represented conductor Lawrence Golan in his challenge to Congress's constitutional power to remove works from the public domain, which he argued before the Supreme Court of the United States. He also represented visual artist Shepard Fairey in copyright litigation against The Associated Press over Fairey's "Obama Hope" posters, and represented RDR Books as trial counsel in its copyright and Lanham Act dispute with J.K. Rowling and Warner Brothers over the Harry Potter Lexicon. Those cases followed notable victories on behalf of the producers and distributors of the film Expelled: No Intelligence Allowed in litigation against Yoko Ono Lennon and EMI Records, on behalf of Professor Carol Shloss in her lawsuit against the Estate of James Joyce. Tony also represented a wide array of organizations as amicus curiae in federal appeals courts throughout the country, including The Andy Warhol Foundation for the Visual Arts, Creative Commons, and the American Library Association. In addition to litigating, Tony advised dozens of documentary filmmakers, writers, artists and other content creators on fair use and other intellectual property issues.
As a Lecturer in Law, Tony has taught both lecture and clinical courses at Stanford Law School, including Fair Use in Film, Advanced Topics in Cyberlaw, and the Cyberlaw / Fair Use Clinic.
Prior to his work at Stanford, Tony was a litigation partner in the San Francisco office of Bingham McCutchen. He is a 1997 graduate of Harvard Law School, and was a law clerk to the Hon. Barry T. Moskowitz, U.S. District Judge, Southern District of California.
The long saga of Professor Carol Shloss's dispute with the Estate of James Joyce over her right to use copyrighted source materials in connection with her biography of Lucia Joyce has come to a remarkable end: Last May, the Court ordered the Estate to pay more than $326,000 in attorneys' fees. After initially appealing that decision to the Ninth Circuit, the Estate thought better of it and agreed to pay $240,000 in fees to resolve the matter once and for all.
This lawsuit represented the culmination of more than ten years of threats and intimidation by Stephen James Joyce, who purported to prohibit Professor Shloss from quoting from anything that James or Lucia Joyce ever wrote for any purpose. As a result of these threats, significant portions of source material were deleted from Shloss's book, Lucia Joyce: To Dance In The Wake. Roughly a year into the lawsuit, the Estate agreed to settle the case on terms that permit the publication of the material that was deleted. But Shloss also demanded the Estate pay attorneys' fees to compensate her counsel for the many hours they put in vindicating her rights in the face of the Estate's assertions of infringement. With this payment, much of that cost has been recouped.
The key here is to realize there are solutions to problems like the one Carol Shloss faced other than simple capitulation. The risks and costs of standing up for important rights like hers may be significant, but they can be managed. The playing field can be leveled and the tables can be turned. I hope this fact is impressed not only on other scholars, but also on the institutions that need to support them when they are faced with threats like these, as well as lawyers who are in a position to donate their time to help.
I hope what we accomplished here becomes a model for dealing with problems like the one Carol faced, whether my organization is involved or not. Whether that happens or not, I'm proud of Carol for standing her ground, proud of what we accomplished with her, and proud to have worked with the fantastic team of lawyers that got us here. Read more » about Joyce Estate Pays $240,000 In Attorneys' Fees To Shloss And Her Counsel
There is a fascinating debate raging about who owns the news -- or more precisely, who owns which parts of a news story. The AP kicked it off in earnest last April when Chairman Dean Singleton channeled his inner Howard Beale and announced the AP would no longer "stand by and watch others walk off with our work . . . . We are mad as hell, and we are not going to take it any more." Just a few days ago, the Nieman Journalism Lab at Harvard posted a confidential AP document outlining an aggressive online strategy, which led Reuters blogger Felix Salmon to rail against the AP's "be-evil" policy. The AP and other traditional news organizations, on the other hand, have suggested that nothing less than the future of journalism is at stake here, because journalism can't survive if everyone is free to "steal" content.
So far this debate has played out largely in generalities and hypotheticals, but a recent complaint from Washington Post writer Ian Shapira helps focus us on some of the specifics. Last month, Shapira wrote an article about business coach Anne Loehr, who charges clients big bucks to help them understand the "millennial generation." The same day, Gawker ran its own take on Loehr's business. The headline: "'Generational Consultant' Holds America's Fakest Job." Gawker went on to use lots of quotes from Loehr that ran in Shapira's article to skewer her in precisely the way the headline suggests, but used little else from Shapira's article.
Shapira was "flattered." Then his editor wrote him back and said: "They stole your story. Where's your outrage, man?"
Flattery quickly turned into disenchantment and a long complaint from Shapira that ran in the Post under the headline "The Death of Journalism (Gawker Edition)." In it, Shapira worried about the profitability of newspapers, the future of journalism and other issues of legitimate concern. His basic complaint was simple: he busted his hump to interview Loehr and get the quotes Gawker used for free.
And that's the interesting part. What Gawker took were for the most part Loehr's words, not Shapira's. Gawker found a news story, and decided it had something to say about it, humorous as it was. It used Loehr's quotes to mock her. Shapira worked hard to chase down the facts he reported. But they were just facts.
So who owns those facts? That's the real question raised by Shapira's complaint, and by the repeated demands by the AP and others to extend legal protection for news stories, whether through expanded copyright protection or reinvigorated unfair competition rules.
When you hear these demands, it's important to remember news stories are already protected by copyright, which protects all of the story's original expression -- the way it reports the facts. But copyright does not give reporters or news organizations any rights in the facts themselves, no matter how hard they work to uncover those facts. So as news organizations like the AP demand greater and greater legal protection, it's the facts they're going after. It has to be. They own the expression. The facts are really all that's left.
This is where the alarm bells should go off. Journalists and news organizations do play a critical role in building an informed and democratic society. They are entitled to protect the product of their hard work. But the facts they report are not theirs. They are the product of human activity. They represent knowledge itself. They don't belong to anybody, and shouldn't.
In the rush to save newspapers, we can't give away the news itself. If that's what Shapira, the AP, or anyone else wants, then then they're stealing from all of us. So where's the outrage, man? Read more » about Who Owns The News? And Where's Your Outrage, Man?
About a month ago, a New York District Court issued an order prohibiting the U.S. publication of 60 Years Later - Coming Through The Rye on the ground it represented a likely infringement of JD Salinger's copyrights in Catcher In The Rye. That decision has been appealed to the Second Circuit Court of Appeals, which is reviewing the case on an expedited basis. An injunction banning a book is a big deal. Read more » about Confusion Over Copyright Injunctions And Other Restraints Of Speech
We filed an amicus brief today in Gaylord v. U.S., a potentially important but little-noticed fair use case on appeal in the Federal Circuit. We filed it on behalf of the Andy Warhol Foundation, and several other amici, including the Warhol Museum, contemporary artists Barbara Kruger, Thomas Lawson, Jonathan Monk, and Allen Ruppersberg, and a variety of law professors who care about the extent to which copyright promotes and protects free expression. One of the important questions the case presents is whether this stamp makes fair use of the statue that appears in it. Read more » about Stamps, Sculpture and Free Expression
Last Summer, the Center for Social Media released the Code of Best Practices in Fair Use for Online Video, a first of its kind document—coordinated by American University professors Pat Aufderheide and Peter Jaszi—outlining what constitutes fair use in online video. (I was a member of the committee that drafted the Best Practices.) In collaboration with the Fair Use Project, the Center has now released a fantastic video that helps explain the Best Practices and how to put them to work -- Remix Culture: Fair Use Is Your Friend. Read more and see the video here. Additional thanks to Google for funding the production. Read more » about Best Practices for Online Video Video
We defended a documentary filmmaker who was sued for copyright infringement for clips appearing in his documentary about Count Dante, an enigmatic, Chicago martial arts legend. Read more » about Aguiar v. Webb
We successfully defended Grammy-nominated American music producer, composer, and songwriter, Brain Transeau’s (better known by his stage name, BT), against spurious copyright infringement claims. Read more » about Vargas v. BT
We represented visual artist Shepard Fairey in connection with the AP’s claim that his iconic “Hope” poster in support of President Obama’s campaign infringes the AP’s copyrights. We represented Fairey because we believe his artistic transformation of a news photograph to convey a political message fell within the protection of the fair use doctrine and presented an important example of why fair use is essential for free expression. Read more » about Fairey v. The Associated Press
After the Estate of James Joyce refused to allow a scholar to quote Joyce in her book, we successfully defended her right under the fair use doctrine to use the quotes she needed to illustrate her scholarship. After we prevailed in the case, the Estate paid $240,000 of our client’s legal fees. Read more » about Shloss v. Estate of Joyce
After Original Talk Radio Network, the nationwide distributor of Michael Savage’s radio show, issued a takedown notice against a video critical of Savage’s portrayal of Muslims, we filed a lawsuit that convinced the company to withdraw its objections to our client’s film. Read more » about Brave New Films v. Savage
This Article consists of some general observations and a few examples that illustrate them. First, technology can benefit tremendously from government involvement. Regulation may be part of that involvement, but thinking just in terms of regu‐ lation obscures some important points. When people talk about regulating technology, they usually assume technology is a private good, and the question becomes whether—and how— the government should regulate private property. This ob‐ scures the truth that technology is frequently a product of pub‐ lic and private collaboration. Read more » about Regulation and Technology
The first part of this article outlined the mechanics of the Megaupload website, and the novel questions of criminal inducement on which the government's indictment is premised. Here, we explore two more extensions of existing law on which the indictment is based, and the impact this prosecution is likely to have on Internet innovators and users alike. Read more » about Megaupload Indictment Leaves Everyone Guessing - Part 2
Days after anti-piracy legislation stalled in Congress, the U.S. Department of Justice coordinated an unprecedented raid on the Hong Kong-based website Megaupload.com. New Zealand law enforcement agents swooped in by helicopter to arrest founder Kim Dotcom at his home outside of Auckland, and seized millions of dollars worth of art, vehicles and real estate. Six other Megaupload employees were also arrested. Meanwhile, the Justice Department seized Megaupload's domain names and the data of at least 50 million users worldwide. Read more » about Megaupload.com Indictment Leaves Everyone Guessing - Part 1
Amicus brief filed in the Second Circuit on behalf of The Andy Warhol Foundation for the Visual Arts urging the appeals court to reverse a district court decision that ignored established fair use principles that many artists rely upon in creating their work. Read more » about Cariou v. Prince - Amicus Brief
Anthony Falzone suggests that the defendants’ decision not to assert fair use may have been strategic: “Combs and his label can afford to pay for samples. Many aspiring artists and their fledgling labels—the next generation of would-be moguls hungry to unseat Diddy—cannot.” Read more » about Copyfraud: Techdirt Book Club Selection For April, Part Two
Congressman Darrell Issa (R-Calif.) engaged in a public conversation Monday evening with Anthony Falzone, director of the Fair Use Project at the Center for Internet and Society (CIS), on the broad subject of Internet freedoms and intellectual property. The event, entitled “SOPA, PIPA and Internet Freedom: Where Do We Go From Here?” was held at the Law School in front of a crowd of mostly graduate students and faculty. Read more » about Rep. Issa Discusses SOPA/PIPA
Four Factors In Search Of a Question: Anchoring Fair Use to Free Expression and Social Value Read more » about Four Factors In Search Of a Question: Anchoring Fair Use to Free Expression and Social Value
The Online News Association, in conjunction with the UNC Center for Media Law & Policy, the Stanford Law School Center for Internet & Society and the UC Berkeley Graduate School of Journalism, presents the Third Annual Law School for Digital Journalists, part of the Thursday Workshops at ONA’s 2012 Conference & Awards Banquet, Sept. 20-23. Read more » about ONA12 Law School for Digital Journalists
Join us for an evening conversation with CIS Executive Director of the Fair Use Project Anthony Falzone and Congressman Darrell Issa where they will discuss topics about SOPA, PIPA and internet freedom. Read more » about SOPA, PIPA and Internet Freedom Where Do We Go From Here?
Hosted by the Federalist Society. More info about this event.
Anthony Falzone and Mark Schultz will debate whether significant developments in U.S. copyright law work to protect or violate individual freedom. Professor Paul Goldstein will moderate. Mr. Flazone is the Executive Director of the Fair Use Project with SLS's Center for Internet and Society. Mr. Schultz is a professor of law at Southern Illinois University School of Law, and his research focuses on the intersection of copyright and social norms.
Golan v. Holder involves a challenge to the constitutionality of the 1994 Uruguay Round Agreements Act (URAA), which restored copyright in foreign works previously in the public domain under U.S. copyright law. The plaintiffs in the case have challenged the URAA as contravening both the "limited times" requirement and the First Amendment. In October 2011, the Supreme Court heard oral arguments in the case and is expected to issue a ruling before June 2012. Read more » about Copyright and the Public Domain After Golan
An evening conversation with CIS Executive Director of the Fair Use Project Anthony Falzone and Congressman Darrell Issa where they will discuss topics about SOPA, PIPA and internet freedom. Read more » about SOPA, PIPA and Internet Freedom - Where Do We Go From Here? Audio
An evening conversation with CIS Executive Director of the Fair Use Project Anthony Falzone and Congressman Darrell Issa where they will discuss topics about SOPA, PIPA and internet freedom. Read more » about SOPA, PIPA and Internet Freedom - Where Do We Go From Here? Video
A growing chorus of opposition has emerged around the Stop Online Piracy Act (SOPA) now pending in the House, as well as its Senate counterpart, the PROTECT-IP Act. If enacted, SOPA would provide unprecedented power for law enforcement and private actors to force service providers to block access to internet sites or shut off revenue streams. Read more » about What's Wrong With SOPA? - Video
A growing chorus of opposition has emerged around the Stop Online Piracy Act (SOPA) now pending in the House, as well as its Senate counterpart, the PROTECT-IP Act. If enacted, SOPA would provide unprecedented power for law enforcement and private actors to force service providers to block access to internet sites or shut off revenue streams. Read more » about What's Wrong With SOPA? - Audio
On April 21, 2011, YouTube invited the public to ask our CIS Fair Use experts questions regarding fair use.
Anthony Falzone, Executive Director of the Fair Use Project, and Julie Ahrens, Associate Director of the Fair Use Project, answer a selection of questions. Read more » about CIS Fair Use Legal Experts Answer Fair Use Questions