Anthony Falzone

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.

Avada Kedavra -- The Harry Potter Lexicon Disappears

By Anthony Falzone • September 8, 2008 at 7:18 pm

Reference guides and companion books about literary works have been a critically important part of literature since its inception, and the right to publish them stood largely unchallenged. We agreed to help defend the Harry Potter Lexicon because J.K. Rowling's claims threatened that right, and because we believe the fair use doctrine protects the Lexicon, and other publications like it. We tried the case in April in a Manhattan Court and waited through the summer for a decision.

Today we found out we lost. In a thoughtful and meticulous decision spanning 68 pages, the Court recognized that as a general matter authors do not have the right to stop publication of reference guides and companion books about literary works, and issued an important explanation of why reference guides are not derivative works. Needless to say, we're very happy the Court vindicated these important principles.

But the Lexicon did not fare so well. The Court held the Lexicon infringed Ms. Rowling's copyright, was not protected by fair use, and permanently enjoined the publication of it. (Read the full decision here.)

Needless to say we're disappointed, as is our client, RDR Books. Careful and thoughtful as the decision is, we think it's wrong. So stay tuned to see where we go from here. In the meantime, thank Roger Rapoport, the Publisher of RDR Books for having the courage to stand up for free speech and fair use. He fought a fight that not many would have the stomach to fight, and we are proud to fight with him.

While you're at it, thank Steve Vander Ark. It's not easy to stand up to your hero, or bear the unjustified scorn of your fellow fans.

Finally, remember that avada kedavra -- the killing curse -- is not always fatal. One wizard survived it. Three times. And it was he who cast the spell (and won't be named here) that ultimately suffered for it. Maybe someday the Lexicon will be known as The Book That Lived. Read more » about Avada Kedavra -- The Harry Potter Lexicon Disappears

YouTube Shows Us How To Be A Good Intermediary

By Anthony Falzone • August 13, 2008 at 9:41 pm

Many have worried about the role of intermediaries who provide platforms for sharing information and expression on the internet, and their sometimes profound power to make content disappear. But here is an example of one intermediary -- a big and very important one -- that did the right thing.

Students for a Free Tibet posted a video on YouTube showing their protest at the Chinese consulate in New York, which included various images relating to the Beijing Olympics, all to speak against China's human rights record -- a fair use to be sure.

The International Olympic Committee filed a DMCA takedown notice and the video was removed. Upon learning more about the content of the removed video, YouTube contacted the IOC and asked them if they really planned to pursue a claim about this [really very preposterous position] and if not, to withdraw the takedown notice. To the IOC's credit, they retracted the notice and the video was reposted within hours.

So here is an intermediary who took an interest in free speech and fair use, even when it didn't necessarily have to. Yes, that followed widespread outrage among bloggers and others. Yes, the situation would have been much tougher if the IOC had maintained its irresponsible position. But we should all be pleased to see YouTube going out of its way to do more than it's required to do under the law to protect free expression. Read more » about YouTube Shows Us How To Be A Good Intermediary

Federal Circuit Issues Important Decision Regarding Enforceability of Free Licenses; CIS Represents Creative Commons As Amicus

By Anthony Falzone • August 13, 2008 at 12:03 pm

Free licenses play a vitally important role in fostering creative and collaborative use of copyrighted material. Creative Commons is perhaps the best example, with a around 130 million works under CC licenses, which tell you in advance what you can and cannot do with a work.

Some have wondered how effectively you can enforce a free license if somebody violates the terms of it. Today the U.S. Court of Appeals for the Federal Circuit -- one of the most influential in the country -- answered that question forcefully by affirming the enforceability of free licenses through infringement claims. (We represented Creative Commons and several other organizations that support free and open source licensing as amicus parties in this case.)

This is a tremendously important victory for free licensing in a tremendously influential court. Read the full opinion here. Read more » about Federal Circuit Issues Important Decision Regarding Enforceability of Free Licenses; CIS Represents Creative Commons As Amicus

New York Supreme Court Rejects EMI's Bid to Enjoin Expelled

By Anthony Falzone • August 13, 2008 at 11:33 am

Two months ago, a Manhattan federal court rejected Yoko Ono Lennon's attempt to enjoin the further showing and distribution of Expelled: No Intelligence allowed on the ground that film used fifteen seconds of the John Lennon song Imagine.

EMI Records filed a nearly identical claim in state court based on the film's use of the sound recording, and demanded a nearly identical injunction. We're happy to report the state court has now denied EMI's request for an injunction.

The state court's order is particularly important because it establishes that fair use applies to the use of sound recordings under common law copyright, and rejects the insane conclusion of the Sixth Circuit in Bridgeport Music v. Dimension Films that there is no such thing as de minimis use when it comes to sound recordings.

Read the full order here. Read more » about New York Supreme Court Rejects EMI's Bid to Enjoin Expelled

Center for Social Media Releases Code of Best Practices in Fair Use for Online Video

By Anthony Falzone • July 7, 2008 at 10:50 am

Building on the tremendous success they have achieved with the Documentary Filmmakers' Statement of Best Practices in Fair Use, the Center for Social Media today released another valuable tool for content creators -- the Code of Best Practices in Fair Use for Online Video

The ability to easily create and share online video presents unprecedented opportunities for self-expression, but has at the same time generated significant confusion about what is permissible versus impermissible copying. As part of the panel that helped shape this Code of Best Practices, I hope it creates a growing consensus about how to balance the rights of copyright holders and the rights of those who would use content for new, valuable, and expressive purposes. Read more » about Center for Social Media Releases Code of Best Practices in Fair Use for Online Video

Anthony Falzone

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Anthony Falzone

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