So meme. Very questions.

A friend of mine was wondering about Internet memes.

For those of you living under a rock, memes typically consist of a picture that has come to represent an idea, coupled with text that applies that idea to a specific situation. LOLcats are a relatively early example. Since I have the Olympics on, I'm reminded of Makayla Is Not Impressed. Others include Good Guy Greg, Scumbag Steve (with Scumbag Steve's hat becoming something of a meme of its own), The Most Interesting Man In the World, and Doge.

If you take a moment to think about about it, you will quickly realize that the subject is an iceberg. There is so much to discuss, and most of it may not even be apparent. If I were trying to operate this blog like a class, I would have to wait until near the end of it to bring up memes.

Alas, I have to write the posts I have, not the posts that I wish I had, or might have at a later time.

So this friend of mine was wondering about Internet memes, and whether there are associated copyright concerns. Well, a meme consists of a picture (so there's a copyright concern there) with text (so there could be a copyright concern there), and a successful meme will generate millions of copies and derivative works (so there's a copyright concern there). Basically, the whole thing is a copyright concern.

Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, but not the underlying idea, procedure, or process. As the word itself implies, a copyright at its most basic is the right to make copies. There are other rights that go along with the right to make copies, such as the right to make derivative works, and the right to use the characters in the work.

So bed.
Much sleepy.
Very wow.

Here's where it gets interesting. Suppose I take a picture of my dog and put it on my blog. Somebody could happen by and for whatever reason (but probably because she is cute) copy the picture and put a clever, pithy caption on it, then post it somewhere else. Suppose further that other people like it and it catches on.* Due to the nature of memes, the picture of my dog has ceased to be just a picture of my dog. Now it's arguably a character recognizable outside of the context of either the kind of phrases usual for the meme or my living room, where I probably took the picture. Note that I didn't create the character, just the picture. My right to make derivative works probably includes the right to make a character out of my dog. This would make each iteration of the meme an infringement.

But I wasn't trying to make any kind of character. I just thought the Internet needed to see how cute my dog is. Should that matter? Should I be given protection for a character I didn't mean to create?

Now suppose that somebody takes a picture of her dog, which is of the same breed as my dog and thus similar-looking. She captions it in the style of the meme featuring the picture of my dog and posts it online. She hasn't infringed my copyright in my picture, because she took her own picture. Has she infringed on my character? Probably. But what if her dog is not of the same breed as my dog? It can't really be the same character, can it? Changing the breed of dog in the picture is a transformative act. The germ of the original meme is still present - a picture of a dog with a caption of a certain style. To the extent that the new picture recalls the old one, there was a certain amount of reuse of material, some of which may be elements protected in most circumstances by copyright law.

The law allows an amount of "borrowing" of previous works. This permitted "borrowing" is known as fair use. Fair use can often be the reproduction of sections of a work for education or for criticism, or the full scale copying of a TV program for viewing at a more convenient time. Parody is widely recognized as a form of fair use, although that is not hard and fast as the Supreme Court's last word on the matter said that parody "may be" fair use. Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994). It is obvious that parody requires enough of the original work's elements to identify the original work. A parody must also comment on the original work in some way, generally to ridicule it. The fact that the second picture is probably a parody makes it unlikely to infringe whatever rights I might have in the meme.

There are a wealth of issues here, the fodder for many a discussion. I'll pick it back up later on down the blog, but that's all for now.

*How memes are actually made and why they work is a project for a doctorate in sociology, and seriously outside my expertise, such as it is.

I'm back!

So much for my posting goal of once a week. I'm going to try again.

Copyright and Facebook

I noticed several of my Facebook friends posting the following message on their walls last week:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, music, professional photos and videos, etc. (as a result of the Berne Convention). For commercial use of the above my written consent is needed at all times!

(Anyone reading this can copy this text and paste it on their Facebook Wall. This will

place them under protection of copyright laws.) By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates.

I'll call this the "copyright message."  Leaving aside the numerous other fascinating legal questions raised by these three short paragraphs, here's the copyright perspective on why this message is totally useless.

United States law (specifically 17 USC 102) inheres a copyright in an "...original work of authorship, fixed in a tangible medium of expression...."  Here's the gateway example of what that means: I'm writing this blog post, which for our purposes now we assume to be an original work of authorship.  I type it into my computer.  I save a draft on my computer's hard drive.  When I have finished the post, I put it out into the world by clicking the Publish button.  The post goes onto the Blogger servers, where your browser has directed you if you're reading the post now.  By saving it on my computer or on a server, I have fixed it in a tangible medium of expression.  The law gives me the exclusive right to make copies of this post, which is exactly what a "copyright" is: the right to make copies.

That's all anyone has to do in order to get a copyright in the U.S.  Wow, that sure was easy, right?  Of course, there are a multitude of other considerations, but basically, it really is that easy.  Thus, the second sentence of the second paragraph in the above quote is obviously false, at least in the U.S.

So, to continue this example, I take this post and use it as my status on Facebook.  Now what?  Well, I still have a copyright in the post, but because I have agreed to Facebook's terms of use, I have changed my rights somewhat.  In essence, a copyright, like any other property right, can be thought of as a bundle of sticks.  I can sell one of my sticks to one person, give one to another person, sell three of them to yet another person, and hold on to the rest of the bundle.  By agreeing to Facebook's terms of use, I gave them (or, more accurately, lent them, because I can take it back) one of my sticks.  The term in question says that I have granted to Facebook

a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

What the heck does that mean?  Well, a non-exclusive license is a license that I can transfer to more than one person, because one transferee cannot exclude others from using that license (contrast that with an exclusive license, where the holder can exclude others from using that license).  "Transferable" means that Facebook can give the license in question to other people, which Facebook does by way of allowing those ads in the right-hand column that are targeted toward a user's professed interests.  "Sub-licensable" means that Facebook can give other people limited permission to use the license, which takes place when my privacy settings allow others (all others, if I'm not careful) to view my post on Facebook.  "Royalty-free" means that nobody has to pay me for any use of content under the license.  "Worldwide" actually means what you think it means.  I don't know what the term "shared" means, but if I had to guess, I would guess that if I post this post to my friend's wall, or if my friend reads this post on my status and clicks "share," it has been "shared" it within the meaning of the term.

I used the term "license" a lot just then.  A "license" in the context of property is limited permission to use the property.  When somebody knocks on your door and you let them in, you have given that person license to use your property.  You can revoke your license at any time by telling the person to leave; similarly, Facebook tells me in the term of use that I can revoke my license to Facebook by deleting my IP content or my account.

As we can see, Facebook has reserved a pretty generous stick from my bundle for itself.  This may seem nefarious, but what it comes down to is that Facebook wants to stay out of trouble.  Facebook wants to avoid a situation where I come to them and accuse them of infringing my copyright because all of a sudden, millions of people are reading this post and that prevents me from making lots of money from it.  Facebook wants to be able to point to the term of use and remind me that I have agreed to let Facebook do just what Facebook is doing.

Let's move back to the copyright message.  In the first paragraph, it lists several items in which it purports to reserve a copyright.  The first of these, "personal details," is probably not copyrightable in the U.S. because it is not an "original work of authorship."  I am putting the cart before the horse here, because I have not discussed what constitutes an "original work of authorship;" that discussion will have to come in another post.  The rest of the list is copyrightable, and as I have discussed above, the copyright to those items inheres upon their fixation in a tangible medium of expression; no form of notice or registration is required.  We note for the sake of completeness that there is no distinction between a person's "professional photos and videos" and any amateur photos and videos; both are copyrighted when they are taken.  Finally, to the extent that making copies for commercial use is different from making copies for non-commercial use, in the context of posting content on Facebook, I have given my written permission for Facebook to use my content for commercial use by agreeing to Facebook's term of use.

I will address the Berne Convention only very briefly here.  It is a multinational treaty that, in part, provides for the recognition of the copyright laws of signatory countries by all other signatory countries.  For example, if I publish a book in the U.S., my copyright in that book is protected in France to the same extent that it is protected in the U.S.: for my life, plus 95 years.  If I publish the book simultaneously in several signatory countries, my copyright is protected for the duration of the country with the minimum duration (functionally, my life plus 50 years)  If we return to my original example, the fact that I publish this post on the Internet muddies the waters considerably because courts don't agree on how to determine the publication location for purposes of duration when something is published to the World Wide Web.  "More on that later," as my esteemable music theory professor Dan Bukvich often said.  Anyway, the copyright message's invocation of the Berne Convention is without any effect; and interestingly, the Berne Convention explicitly eliminates any notice requirement for copyright protection, thereby mooting any invocation of the Berne Convention as a requirement for copyright protection.

The second paragraph of the copyright message is total nonsense.  Following the parenthetical opening, discussed above, comes what appears to be an express rejection of Facebook's terms of use.  This is silly.  The statement by itself does nothing because the only way to opt out of Facebook's terms of use is to delete one's account.  I suppose another way would be for Facebook to delete the accounts of users who expressly reject its terms of use, but that seems harsh and would probably be bad from a PR standpoint.  We can think of it this way: Facebook users are told the terms of use when they sign up.  The terms of use include the license discussed above.  If you don't like the rules, don't play.  This is especially true in the context of the license we're discussing, where a user gives Facebook permission to act while retaining only the power to delete the content to prevent Facebook from acting under the terms of the license.  Structurally speaking, there is no way for a user to post content on Facebook and block an attempt by Facebook to use the license.  The claim in the final paragraph of the copyright message that failure to post a copyright message tacitly allows Facebook to use content such as photos or status updates is more nonsense.  As we have discussed, a Facebook user actively gives Facebook permission to use content posted on Facebook by signing up for an account.

Thus, copying the copyright message to my status doesn't do anything, either to give myself copyrights (because I have them outside of Facebook), or to prevent Facebook from using my intellectual property (because I agreed to let Facebook use my intellectual property when I signed up).  Now, to post this on Facebook....

Welcome to Craft on Copyright!

I am an attorney in Portland, Oregon.  My practice right now is focused on business transactions, incorporation, and family law.  I enjoy the work, but I want to shift my focus to the reason why I went to law school in the first place: intellectual property, particularly copyright law from the artist's perspective.  I intend this blog to be a resource for artists, and to generate interest in my practice.  Although I will focus my posts here toward copyright law, and particularly toward music copyright law, I will also post about other kinds of copyright law, as well as trademark law.  I plan on discussing trade secret law and patent law occasionally, but to a much lesser extent as those fields are outside my expertise (and, frankly, interest).

Regarding the blog itself, I hope to post weekly for starters and work up to making daily posts.  I also aspire to generating a great deal of interest, and with that interest, comments.  Until such time as it becomes necessary to revise my policy (if ever), I will have a liberal commenting policy.  The policy consists of three simple rules: 1) no spam; 2) make a good argument for your position; and 3) don't be a jerk.  As this is my blog, I get to decide what those rules entail, and what behavior is outside them.  I promise to abide by them myself, in the interests of equity.  By way of warning, I must admit to an adoration of sesquipedalion loquaciousness.  My feeling on the matter is why use five words when five syllables will do.  I'm not trying to condescend to anyone via my verbiage, it's just what I do.  If you have any questions, please comment.

To start things off (in the very next post!  Hopefully it will be up in less than a week), I will begin discussing the current state of copyright law, including its history and policy determinations that have shaped its course.