Modern Authorship: A Preview of Our Panel at SXSW 2016

This is a preview of our proposed panel at SXSW 2015.  Please vote for it if you enjoy the content and want to hear more!

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It’s the most wonderful time of the year! It ain’t Spring time, and it ain’t tax season–it’s time to apply for SXSW 2016 panels!  I had the pleasure of attending South by Southwest 2015 after being selected for a panel about Legal Hackers.  It was absolutely bananas, so I’m gearing to get there again.  

This year, we’re going a more niche route.  Talking it over with my partner at Fridman Law Group, Iliya, we wanted to come up with an advanced session for visual artists about the law that affects them most: copyright.  One thing that immediately came up was Monkey Selfies.  The other was Richard Prince and his new installation in NYC that caused quite a stir: New Portraits.

As IP attorneys we really like these case studies because they are (1) oddities, and (2) suggestive of new trends in how we understand original authorship.  Specifically, both of these situations raise important questions about whether the current US copyright system is doing what it’s supposed to do: “promote the progress of science and useful arts.”  That’s from the Constitution, people!  Taking on the true legal-hacker ethos, I gotta ask: do we need to hack a better system here? Or is the current IP regime doing what it’s supposed to do when it comes to these odd case studies?  The end goal is to talk about what it means to be an “author” under the US copyright system, and maybe even propose some paths going forward to adapt that system.

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Let’s take the monkey selfie case for starters.  If you don’t know the story, a nature photog named David Slater went into Indonesia to study and photograph a troupe of rare monkeys.  At some point during his time with the primates, one of them, a Celebes crested macaque (note that Wikipedia entry still sports the infamous monkey selfie), grabbed his camera and shot off hundreds of photos, including a few of the monkey’s own face.  One of these photos was good enough that Wikipedia used it in one of its entries (the pics are indeed AMAZING).  Putting aside for a second that Wikipedia is basically a fair use engine that would have a hard time infringing on anyone’s copyright, Slater issued a takedown request to have the image removed.  On review, Wikimedia refused to take it down because the monkey itself took the photo, not Slater. In other words Wikimedia claimed that Slater would not be the “author,” or owner, under US copyright law.  

In a set of belly-laugh-funny comments, the Copyright Office later agreed (links/emphasis mine):

The Office will not register works produced by nature, animals, or plants [Ed: “let me paint you, Seymour!”]. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

Examples:

  • A photograph taken by a monkey.
  • A mural painted by an elephant.
  • A claim based on driftwood that has been shaped and smoothed by the ocean.

Side Note: I’ll put this comment into my pile of majorly missed opportunities–as soon as we’re talking about a set of things including elephant-painted murals, monkey selfies, and driftwood shaped like Jesus’s face, I would think you have to go all out!  I would have definitely included elegant designs made of bird poop and concertos composed by cats in meow minor.  Also, I’m really curious how many people are listing God as the author of their copyrightable works on public filings.  Will definitely have to look into that one.

But the part that’s relevant for our panel is what follows:

Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. Examples: A claim based on a mechanical weaving process that randomly produces irregular shapes in the fabric without any discernible pattern.

Enter Phillip Stearns.  Phillip is a visual artist who creates glitch textiles.  These are fabrics that are created from software and altered hardware.  I think Phillip would disagree that the patterns of his cuts are non-discernable, but there’s an interesting result when you consider his work against the Copyright Office’s stance on what human creation is.  Although Phillip painstakingly creates this amazing hardware and software that produces beautiful visual art, his work is apparently not protectable.  Now I’m not proposing we bring back so-called “sweat of the brow” copyright, but what’s fascinating here is that if Phillip said nothing about how the designs for his fabrics were made, I doubt the Copyright Office would say peep.  Instead, as you’ll hear on our panel, the Copyright Office has taken issue with his works simply because of his process.  

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Our second case study revolves around Richard Prince, a famed “appropriation” artist who is no stranger to the courts.  Prince recently put on an installation in New York called New Portraits.  In that installation, Prince took photos from Instagram users, many of them professional Instagramers, and put them in a collection of works, basically unaltered.  Some of those works sold for as much as $100,000, which left a lot of people scratching their heads.

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Prince has been doing this for decades.  One of his more notable works, from a copyright perspective, led to the 2nd Circuit Court of Appeals’ most recent statement on fair use, which as a result is extremely broad.  That case, Cariou v. Prince, was another instance where only slightly altered photographs were cast as new art.  It was eventually settled after the 2nd Circuit clearly stated that Prince’s work, in that case, was fair use.  But New Portraits seems to go back to the core of appropriation–distributing pictures of pictures.

Prince’s work is a lot of fun to talk about for many reasons, but particularly because it raises a fundamental question that artists ask (or at least should ask) all the time: “is this art?”  And if so, what does it add to the discussion, to society?  I used to have a very broad answer to the initial question–I used to think that art only required intention (i.e., a statement that “this is art”).  After seeing the logical conclusion of that definition, I’m forced to claw that back a little. In any event, it is a question we will be discussing at the panel I’m sure.

To help with our discussion of IP, appropriation, remixing, philosophy of art, and fair use, Elisa Kreisinger will be joining us.  Elisa is a remix artist who also has expertise in IP and policy.  Her amazing videos recut and remix existing content to create new meaning, in her most-viewed works recasting pop culture icons as feminists and lesbians.  Elisa’s Queering Sex and the City remix is a fantastic example of the power in using existing content toward that sort of social commentary.  On the IP front, one thing to note about Elisa’s work, compared to Prince’s, is that Elisa constantly faces a barrage of DMCA takedowns for her videos, affecting the public reach she can attain.  At our panel we will discuss why the in-person gallery is a sort of safe haven that doesn’t appear to have an analogue online.  That is, what or where is the protected space for experimental authorship online today?  And why is there a disconnect between what Prince is allowed to do on paper and what Elisa can do on YouTube?  

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This is a quick look into what we hope to achieve at our panel.  If you’re interested, please vote for us today HERE.

 

The Freedom of the Open Road (Subject to Terms of Employment)

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Just a few short months ago, I made the worst, most impractical decision a New Yorker can make: I bought a car.  And you know what?  I friggin’ love it.  Not because I’m a masochist (I don’t think), but because I LOVE driving–I love the freedom of driving.  It’s that freedom that makes the car an amazing pastime for former Midwesterners like myself.

I also like the idea of applying that same liberation to my day job. I’d be lying if I said that I hadn’t at least considered turning my new four-wheeled investment (ticket-capturing device?) into an Uber or Lyft, perhaps just a few nights a week.  There’s something very attractive about making your own hours while doing something you enjoy doing.  That’s the dream, right?  Indeed, as an Uber driver you can even make a competitive wage as compared to driving a yellow cab.

The problem is that Uber drivers may not be as free as we thought. A few weeks ago, the Labor Commissioner for the State of California issued a decision stating that Uber owed Barbara Ann Berwick expenses of over $4000 because Ms. Berwick was…drumroll please…Uber’s employee! If you’re not up on what that decision means, legally speaking, the long and short is that Uber may be incorrectly classifying its independent-contractor drivers as employees.  Or, in other words, the State of California does not think that Uber drivers have the freedom to take fares as they please and how they like, in the way a truly independent worker would.  And if that’s true, Uber drivers may be afforded the typical protections of an employee: minimum wage, overtime, workers’ comp, and maybe even health insurance.

(On a side note, the California Labor Code presumes that a worker is an employee until proven otherwise, so this isn’t a terribly surprising decision)

Uber’s obviously appealing the Labor Commission’s decision, but there are a few things that come out in the facts that suggest Uber has, at least arguably, a lot of control over its drivers.  Most of these come from Uber’s driver agreement:

  • Uber drivers have to provide rides to Uber’s specifications;
  • Uber cars can’t be more than 10 years old, and the model has to be approved by Uber;
  • Uber drivers don’t take tips;
  • Uber has complete authority over when a driver gets paid;
  • Uber provides an iPhone if the driver doesn’t have one;
  • Uber drivers’ apps are disconnected if they are inactive for 180 days.

These factors led the Labor Commission to say that Ms. Berwick was an employee, and therefore Uber owes Berwick her expenses incurred on the job under California law.

But what’s the real takeaway here? Why does this matter?  Well it’s not like Uber invented their model. VCs have invested over $9.4 billion into on-demand startups since 2010.  And the models for on-demand services are prevalent, even ordinary in cities like NYC.  What happens if all of the workers of these services–your favorite Drizzly delivery person, a Handy cleaner, or even an AirBnB host–are employees of the respective platforms they participate in?  For one, the platforms’ costs increase substantially: minimum wage and overtime kick in and the companies may have to offer insurance under PPACA.  This could, potentially, make these on-demand models infeasible, as Vinay Jain indicated in a recent blog post.  And this decision could turn the on-demand boom to a major bust.

On the other side of the equation, not all employees want to be employees subject to typical tax withholdings.  Of course if business isn’t going so well an Uber driver may want to claim minimum wage, at the least.  Then again, I’m sure, had Ms. Berwick been awarded back wages, she would not have wanted those wages subject to normal withholdings.  Who wants to see a quarter of their paycheck disappear?

In all, there’s something to be said for disrupting the traditional model.  Sure, there are beneficial economic effects that arise from competitive disruption.  But there are also growing pains.  At some point our laws will need to reflect the growing importance of the freelance economy and on-demand services (is there a new classification of worker we haven’t considered here?).  In the meantime, drivers may need to think about whether they’re willing to sacrifice the freedom of the open road for a chance to get plugged into the next big platform.