Anthony Falzone's blog

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

In the answer to The AP's counterclaims we filed yesterday, we included a dozen examples of AP photographs The AP sells, which consist almost entirely of the copyrighted artwork of Fairey and other artists.

Today, The AP issued a statement accusing Fairey of "making attacks" on The AP and "deliberately omitt[ing]" the "newsgathering context in which the various images were generated and in which they are used."

The funny part about this is Fairey doesn't allege The AP's photos are illegal or infringing, much less "attack" The AP. The point is very simple: The AP applies an obvious double-standard. It is happy to sell, through its image licensing database, photographs that are really just bare copies of artists' work, yet it condemns Fairey for using an AP photograph in a far more creative, transformative, expressive and defensible way. Fairey's allegations don't say the AP shouldn't be allowed to do what it does. These allegations -- and the AP's response -- just demonstrate The AP demands wide leeway for its use of other artists' work, but insists that others, like Fairey, are entitled to much less leeway.

As for "newsgathering," The AP misses the point again. While the photographs may have originally been taken for the purpose of newsgathering, they are presently for sale on The AP's image licensing database as a commercial product for "professional photo buyers."

So let's get this straight: We're not alleging The AP's photographs infringe anyone's rights, or demanding The AP stop doing the excellent work it does. We simply contend The AP should have to play by a consistent set of rules. We contend fair use should apply broadly -- for everyone. If The AP's bare copies of other artists' work are protected by fair use, then Fairey's significantly more transformative and expressive work has to be, too. Read more about AP Issues Statement About Fairey's Answer, Misses Point Entirely

We filed our answer to The AP's counterclaims yesterday, and it's attached below. The interesting part is at the end, where we illustrate the double standard the AP seems to employ when it comes to using copyrighted works. Read more about Fairey Answers The AP's Counterclaims

We're thrilled to report the Court has upheld our challenge to the constitutionality of the URAA's restoration of copyrights in public domain works. Today, the Court granted our summary judgment motion, holding the URAA violates the First Amendment insofar as it suppresses parties' rights to keep using works they exploited when those works were in the public domain. Needless to say, this is a big deal. It is the first time a court has held any part of the Copyright Act violates the First Amendment and the first time any court has placed specific constitutional limits on the government's ability to erode the public domain. It is also the culmination of a lot of hard work by a lot of CIS lawyers dating back to 2001, including myself, Larry Lessig, Chris Sprigman, Edward Lee, Jennifer Granick, Lauren Gelman, Colette Vogele, Julie Ahrens, Chris Ridder, Sarah Pearson and others. I expect there will be more to come, including a return to the Tenth Circuit. Look for updates here. In the meantime, Judge Babcock's order is attached below. Read more about URAA Held Unconstitutional

Two years ago, the Tenth Circuit Court of Appeals broke new ground. It held the URAA's restoration of copyrights in public domain works departed from the "traditional contours" of copyright by contravening the "bedrock principle of copyright law that works in the public domain remain in the public domain." In doing so, the Tenth Circuit became the first court in the country to hold that ordinary First Amendment scrutiny applies to an amendment of the Copyright Act. Now we're back before the District Court on remand to determine whether the URAA can survive First Amendment scrutiny. Each side has cross-moved for summary judgment on that issue. The briefing on that issue is now complete, and each brief is attached below. No hearing date has been set. Read more about Scrutinizing The URAA

Last week, the Associated Press accused Los Angeles visual artist Shepard Fairey of infringing copyrights the AP asserts in a photograph Fairey used as a visual reference in creating the Obama Hope poster that became a ubiquitous symbol of President Barack Obama's campaign. Yesterday, we filed suit against the AP on Fairey's behalf to vindicate his rights, and disprove the AP's accusations.

Read the full complaint here. Read more about FUP Files Suit Against The Associated Press On Behalf Of "Obama Hope" Artist Shepard Fairey

As reported here by the Associated Press, the Fair Use Project is representing visual artist Shepard Fairey in connection with the AP's claim that his iconic work in support of President Obama's campaign infringes the AP's copyrights. More soon.

Updated AP story. Read more about Hope Under Fire

As announced yesterday and reported first by the Leaky Cauldron and then the Associated Press, RDR Books has withdrawn its appeal from the Court's decision enjoining the publication of the Lexicon, and will publish a new Lexicon instead.

Following the trial and the Court's decision, Steve Vander Ark created a new Lexicon manuscript. That manuscript addressed some of the concerns expressed by J.K. Rowling at trial, and those expressed by Judge Patterson in his thorough and detailed decision. As it turns out, Vander Ark and RDR like the new manuscript much more than the old one, and they decided they are much more excited to publish the new manuscript instead of the old one. Read more about Lexicon Resurrected

Michael Savage has one of the most popular shows on the radio. He doesn't hesitate to speak his mind, no matter how controversial his views. He should be applauded for that. Many find those views highly offensive, and level fierce criticism at him. They should be applauded for that. That is the dialogue of free speech. The right to speak and the right to criticize speech you don't like are equally important.

You'd think that Savage of all people, who depends on free speech to do what he does for a living, would understand that. Yet when the Council on American-Islamic Relations ("CAIR") put up a web page last year documenting overtly hostile remarks Savage made about Muslims on his show and urging advertisers to boycott Savage's show, Savage tried to shut down CAIR's criticism of him. He sued CAIR, claiming the snippets of Savage's show CAIR used to document Savage's statements and support CAIR's criticism of him infringed his copyrights in his show. If fair use protects anything, it protects the right to use portions of a copyrighted work to criticize it, so Savage lost his case quickly and decisively.

But the attack goes on. Brave New Films created a similar video and posted it to YouTube. That video likewise documents Savage's comments and urges viewers to do something about them. Brave New Films also created a website, www.nosavage.org to support its efforts to speak out against Savage and the comments he made. Late last month, Savage's nationwide syndicator, Original Talk Radio Network, complained to YouTube about BNF's video. In response, YouTube removed it pursuant to the DMCA.

The Fair Use Project, along with co-counsel Bingham McCutchen, have now sued OTRN and Savage to recover damages for the misrepresentations made in connection with the wrongful removal of the video from YouTube, and declaratory and injunctive relief to vindicate BNF's right to say what it said about Savage in the video, and prevent the suppression of the video in the future. Read more about Fair Use Project Files Suit On Behalf Of Brave New Films Against Michael Savage and Original Talk Radio Network

Not all campaign controversies fill the national stage. But this one should get national attention for being so abusive.

Mark Blanchfield is challenging George Amedore for his New York state assembly seat. Last week, Blanchfield released political ads that include excerpts of an interview Amedore apparently gave to the Albany Business Review in connection with an award he received from the Business Review last May. In that interview, Amedore says he doesn't "look at [his] Assembly position as [his] job."

Blanchfield's radio and TV ad lambast Amedore for this comment. In response, the Business Review turned its lawyers loose on Blanchfield, who received a letter accusing him of copyright infringement and threatening legal action if he does not pull his ads off the air.

This is an abuse of copyright law that should trouble everyone, and cannot be allowed to persist or spread. Copyright is not a tool to censor criticism, and cannot be allowed to become a device to suppress statements that public officials wish they had not made.

What Blanchfield did here is a textbook example of fair use -- and an important one at that. Blanchfield is using a small portion of the video to criticize the views expressed in it by Amedore and to expose to the voters Amedore's attitude about the job he's been elected to do; moreover, Blanchfiled's use of this material will have no conceivable impact on whatever market there might be for the video the Business Review made (assuming there is a market for it in the first place). Read more about Albany Business Review Tries To Use Bogus Copyright Claim To Silence NY Assembly Candidate

After both the state and federal courts rejected the attempts of Yoko Ono Lennon and EMI Records to enjoin the showing of Expelled: No Intelligence Allowed on the ground it used a 15-second fragment of John Lennon's Imagine, all of the plaintiffs in both cases have now withdrawn their claims and dismissed their cases.

This is the right result to be sure. There should never have been any doubt the filmmakers who were sued here had every right to use a short segment of a song for the purpose of criticizing it and the views it represents. But the right result came far too late. The mere pendency of these cases caused the film's DVD distributor to shy away from releasing the full film -- the version that includes the Imagine segment. So the film goes out on DVD on October 21 in censored form, illustrating the damage that even an unproved and unsupported infringement claim can do.

At the same time, the result here -- great but imperfect -- is a fantastic lesson in how we might start to solve the fair use dilemma. We launched the Documentary Film Program with Media Professional Insurance and Michael Donaldson to help solve a critical problem: fair use rights are expensive to use because they require lots of lawyer time. Media Pro took the visionary step of insuring fair use risks. We and Donaldson agreed to mediate these risks by vetting the fair use issues ahead of time. (We do it for free; Donaldson has to make a living.) Donaldson reviewed Expelled, and Media Pro insured it. When its producers got sued, we agreed to defend it pro bono, alongside the producers' regular counsel at the Locke Lord firm. Together we won, kept the cost to Media Pro minimal, and thus demonstrated that the fair use problem can be solved, in many (but perhaps not all) cases by teamwork like this.

I'm proud to have been a part of it. Read more about Expelled Is Absolved