Warner Bros. Forced To Fight For Fair Use

V-similitude writes with news that Warner Bros. has been forced into a position of claiming 'fair use' in the defense of an upcoming movie. From the NYTimes: "In The Hangover Part II, the sequel to the very successful what-happened-last-night comedy, the character played by Ed Helms wakes up with a permanent tattoo bracketing his left eye. The Maori-inspired design is instantly recognizable as the one sported by the boxer Mike Tyson, which is part of the joke. (Mr. Tyson makes an appearance in both films, playing himself.) But S. Victor Whitmill, a tattoo artist formerly of Las Vegas and currently from rural Missouri, doesn't quite see the humor. Mr. Whitmill designed the tattoo for Mr. Tyson, called it 'tribal tattoo,' and claims it as a copyrighted work. ... Warner Brothers in its brief also invoked the 'fair use' defense for Hangover Part II, namely the right to parody what has become a well-known tattoo since it first appeared on Mr. Tyson’s face in February 2003."

Comments

Iron knee

[Qatz]

Title says it all.

Re:Iron knee

[Anonymous Coward]

I feel really stupid that I had no clue what you meant by "Iron knee". Gonna go get more coffee.

Fair use when it suits them

[betterunixthanunix]

For Hollywood, copyright has one meaning: inflating their profits. Unfortunately, almost everyone in America has forgotten that copyright is supposed to exist to improve the people's access to works of art and science, not just to make money for copyright holders, and so Hollywood manages to get away with their abuse of our legal system.

Re:Fair use when it suits them

[Stormthirst]

And you have completely mis-read the OP. He's not arguing that people should be able to pirate Hollywood's content as and when they please. He's arguing that Hollywood abuses the legal system, and does so to extort more money out of the people than Hollywood are due by suppressing Fair Use, and in this case parody. The irony here (seeing as you don't seem to understand it) is that WB are using the parody clauses of copyright law to get out of paying someone damages.

Re:Fair use when it suits them

[Omnifarious]

You seem to think that the goal of the system is to give you open access to anything you want on your terms. That has never been the point of copyright. The point has always been to set up a system whereby creation can be incentivized - which works wonderfully well. We have more creative output and more access to it now than ever before, and every trend is upward.

That shouldn't mean everyone gets what they want when they want it merely because they want it.

Yes, anytime anybody criticizes copyright in any way, you should accuse them of being a deadbeat or a thief. You go on with your bad self!

I had a co-worker who did this. Discovered later he was being paid 20% more than I was, and he did poorer work that was eventually thrown away. But, as they say, correlation is not causation.

Re:Fair use when it suits them

[trout007]

Did you ever wonder why the movie industry is located in Hollywood? It was because Edison who owned the patent to motion pictures was very strict as to the types of movies that could be made. So all of the famous studios you know today were started out west where they could easily avoid the patent enforcement that was happening back east.

Re:Fair use when it suits them

[The Dawn Of Time]

I'm saying we, right now, have more creative works and greater access to them than at any point in history. The system, flawed as it may be, works.

Ideals are fine and wonderful and have never, ever worked.

So yeah, I come down on the winning side.

Re:Fair use when it suits them

[blackraven14250]

Patent and copyright are two very different beasts....

Re:Fair use when it suits them

[The Dawn Of Time]

I'd like to note, I think Warner Bros should have to pay here. That was an original work of art they copied.

Re:Fair use when it suits them

[Omnifarious]

Actually, in the creation of software, it loses. There is a reason that about 80% of the startups around here use Open Source software.

I think the reason we have more creative works and greater access to them than at any point in history is because of the Internet. And these things are happening in spite of copyright law, not because of it.

Re:Fair use when it suits them

[swalve]

How does it "lose" in software?

Re:Fair use when it suits them

[ThosLives]

That has never been the point of copyright. The point has always been to set up a system whereby creation can be incentivized - which works wonderfully well.

This philosophy makes me sad. Not because it's wrong, or because it's right, but because it indicates that people think the most compelling reason to do something is because of monetary or other material gain.

(I would argue that we would have just the same, if not more, cultural and technical innovation if we had much weaker copyright and patent systems, because people would actually have to work hard to produce things of extraordinary value in order to gain from them.)

Re:Fair use when it suits them

[icebraining]

There was never a time after the invention of recording of music and video without copyright, so it's completely impossible to determine if copyright helped or hindered the creation and access to music and films.

Re:Fair use when it suits them

[swalve]

With the permission of the current owner, Mr. Tyson.

Re:Fair use when it suits them

[michelcolman]

Hey, I just had a great idea! Ley's abolish copyright for a decade or so to see what difference it makes. For science.

Re:Fair use when it suits them

[second_coming]

Not at all. The design belongs to the artist, Tyson effectively has a 'print' of the original design and does not have the right to let others recreate it.

Re:Fair use when it suits them

[QuasiSteve]

Wait.. did I miss it? Were the authors of Star Wreck: In the Pirkinning sued by LucasFilm / Paramount / any of the other companies involved with the Star * sci-fi series?

Because I"m pretty sure that downloading/uploading a copy of a movie doesn't fall under most interpretations of the 'fair use' doctine, whereas satire and parody (see story) do.

I would argue that Mr. Tyson is part of the 'work', and by modifying the work of art by putting it on the other guy's face for parody purposes, means the original artist can go bugger off.

If he really wants to try to lay claim somewhere, he should go after the tattoo artists that tatoo'd Mike Tyson + tattoo on somebody else's body:
http://isportacus.com/wp-content/uploads/2009/06/mike-tyson-tattoo1.jpg

But I guess there's less money in that.

Re:Fair use when it suits them

[Anonymous Coward]

Actually, Tyson does not own the copyright to his tattoo. He was merely licensed to display it. Says so in the EULA posted above the door in the tattoo parlor where he got inked.

Re:Fair use when it suits them

[vadim_t]

And it fails quite badly at that.

For instance, why is LOTR still under copyright? Somebody is obviously getting all those royalties, but how does that incentivize creation?

If incentivizing creation is the true goal, then copyright should be much shorter, perhaps the original length of 17 years. Authors should have a good reason for producing multiple works during their lifetime even if they strike gold (especially those, as they proved they can write good stuff), and publishers and similar should be encouraged to find new authors instead on relying on collecting the benefits of works created a century ago.

But copyright keeps getting pushed to an ever longer length, because its current purpose isn't about incentivizing creation, it's about owning as many works as possible and collecting profit from them, which gets easier the longer copyright lasts.

Re:Fair use when it suits them

[JAlexoi]

Not really. Both deal with rights to profit from results of intellectual activity.

Re:Fair use when it suits them

[lennier1]

True, one is generating a shitload of money for lawyers and the other ... oh wait! ;)

Re:Fair use when it suits them

[similar_name]

We have more creative output and more access to it now than ever before, and every trend is upward

I'm not arguing that copyright incentive is zero I just want to point out that this has generally been true for most points in history. Technology tends to improve output and access much more drastically than laws concerning the exchange of information.

Re:Fair use when it suits them

[Anonymous Coward]

...and then they made the Hays Code.

Re:Fair use when it suits them

[hedwards]

The difference is that patents expire, eventually, whereas copyrights seem to no longer expire.

Re:Fair use when it suits them

[hedwards]

If it's based that heavily on the original then it's likely to be considered a derivative work. And since there is apparently no creativity involved with recreating the tattoo for the movie it should be considered a derivative work.

As such, there definitely is going to be something of significance to this case if Warner Brothers manages to win. Or even if they don't, this would likely still have some pretty astonishing effects on the tattoo industry.

Re:Fair use when it suits them

[Undead Waffle]

Patent and copyright are two very different beasts....

So different, in fact, that there is only one clause in the Constitution granting Congress the power to create both of them.

Re:Fair use when it suits them

[Runaway1956]

The system simply does NOT work. Your position seems to be similar to Hollywood's position that copyright "entitles" you to a constant income forever, and ever, amen. And, probably ditto with patents.

Neither system was meant to ensure that any author or inventor could sit on his arse for the rest of his life, while his "intellectual properties" generated wealth for him. They were ONLY meant to ensure that if ANYONE were to make a coin from his works, then he should get some of it, for a limited time.

The time limits have been raped unrecognizably, fair use has been treated similarly, and parody the same.

What is a reasonable time limit on copyright? How about 15 years for most forms of print, movies, and other media. And for software, 7 years. If there is money to be made from any copyrightable material, that money should have been made within those time frames. After that - it's public domain. And, I don't give a small rat's ass for any arguments to the contrary.

Re:Fair use when it suits them

[ravenshrike]

While it is true that we have more creative output in absolute terms, can you explain how much more we have in relative terms and how the current copyright regime enables this?

Re:Fair use when it suits them

[alostpacket]

Interestingly too, they have been fighting another copyright case which seems related to fair use, but not exactly the same:

Time Warner, Viacom aim legal guns at each other over iPad app

Re:Fair use when it suits them

[Omnifarious]

Open Source software is valuable precisely because strict exclusive ownership rights are not exercised over it. Yes, there are licenses like the GPL. But they do attempt to enforce continuing joint ownership by society at large, not exclusive ownership by the creator.

I, personally, avoid using software that isn't Open Source, and I generally refuse to use non-Open Source software in certain situations. Proprietary software frequently has negative value to me. The exercise of strict ownership over it has leached it of all value it might otherwise have possessed.

Re:Fair use when it suits them

[Doc Ruby]

It says right in the Constitution exactly what the post that you contradicted says.

You are the one merely asserting your preferences and insisting on getting them.

Copyright abridges our rights to free speech, press and other expression. It's arguably justified only when it advances progress in science and the useful arts. "Incentivizing creation" is just your opinion of why, and is at best highly debatable.

Re:Fair use when it suits them

[The Dawn Of Time]

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

That's what it says. Nothing about improving access. You might try to quibble that you can somehow promote progress other than by incentivizing creation, but you're pulling that from wherever you got your idea of what the Constitution says.

Re:Fair use when it suits them

[The Dawn Of Time]

Who said the only incentive is material gain? Are you sad that people like to have rewards for their efforts? Why do you think it's more fair for you to set the terms of incentive instead of the creator?

Re:Fair use when it suits them

[arb phd slp]

Could it be argued that the tattoo is a "work for hire" and Tyson, as the client who commissioned it, owns it?

Re:Fair use when it suits them

[PopeRatzo]

I'm saying we, right now, have more creative works and greater access to them than at any point in history.

Yes, but it's all illegal.

Personally, as someone who makes a living from my own creative work, I believe access to creative work is more important than obeying the law.

Re:Fair use when it suits them

[m.ducharme]

I would certainly try this argument. I don't know if it would work. I would imagine it would turn on whether the tattoo artist and Mike Tyson thought he was paying for a design that nobody else would be allowed to have. If Tyson picked the design out of a book of similar designs, he'd likely be s.o.l.

Re:Fair use when it suits them

[PopeRatzo]

Hey, I just had a great idea! Ley's abolish copyright for a decade or so to see what difference it makes. For science.

I've been pushing that idea since at least the turn of the century. And not just "for science", but for the good of all of us, including the creative artists.

I know you're attempting sarcasm, but I believe that abolishing intellectual property would be beneficial all around. It would be good for business, for the economy, for consumers, for artists. The only people that would not be happy are the media executives and patent trolls who have never created anything in their lives.

Re:Fair use when it suits them

[nfc_Death]

Wow you could not be more incorrect. Per capita we have access to less works of art and media than we have ever before in history. Just because more people exist making art and media does not somehow mean our access to said art and media is greater.
I can prove the opposite is true. Two Hundred years ago there were substantially less trademark/copyright/patent based laws in existence, that would mean that per capita an individuals access to media and art were restricted to a much lesser extent than today.
Considering that patent/trademark/copyright litigation is one of the major users/abusers of our justice system, we can deduce that a massive amount of precedence and case law has been created to apply to copyright/trademark/patent issues. So as an individual today I am encumbered many many times more than I was 200 years ago when it comes to appreciating or possessing art or media Or if you wanna build on someone else's idea (the very basis of capitalism) forget it.

Re:Fair use when it suits them

[pugugly]

And by 'every trend' make sure you include ridiculous patents, copyright trolls, and creating 'intellectual property' such as business method patents that were never intended to be patented in the first place.

All that said - actually given the copyright protection extended to furniture design and other such items in movies (which I don't think merit protection), a tattoo design definitely qualifies as art under copyright (And frankly, might qualify evenn if it hadn't been so overetended). Warner Brothers isn't commenting on or parodying the tattoo itself - they really don't have a leg to stand on regarding fair use.

Pug

Pug

Re:Fair use when it suits them

[Yvanhoe]

Same beast, two heads. It is named intellectual property. And Stallman owns a katana.

Re:Fair use when it suits them

[Dachannien]

At the time, however, the equipment that allowed you to create and/or view the motion pictures was covered by Edison's patents, and so it gave him significant leverage in imposing morality codes on what people produced using that equipment. Read up on Edison sometime - he was a complete asshole not satisfied with making shitloads of money when he could also gain total control over whatever he touched.

http://en.wikipedia.org/wiki/Motion_Picture_Patents_Company

Re:Fair use when it suits them

[hairyfeet]

Yep thanks to piracy, which is kinda the opposite of 'works" since the entire reason a black market such as piracy pops up in the first place is that the current market is hopelessly broken and therefor simple supply and demand creates a way around the broken system.

So allow me to say, as someone who has directly benefited from the pirates...thanks! Thanks to you the games that I bought and paid for that no longer works thanks to shitty DRM that refuses to run on a modern OS work just fine, even better than they did before as a matter of fact, since there isn't ring 0 buggy shit running 24/7 in the background.

Thanks to the pirates I can just download an AVI copy of a movie I own instead of wasting time and electricity converting some 8Gb flick, complete with commercials they won't let you avoid, into a file that will easily fit on my little netbook, and thanks to them I can "try before I buy" shows that In wouldn't normally be able to view in my area, such as BtVS, which ended up getting me hooked on Joss Whedon shows and caused me to buy the entire Whedon box set, to the tune of around $1000.

So thank you pirates, you make the world a better place, unlike our corrupt corporate ass kissing congress whores who would happily sell out the constitution if it gave them a big fat check and a job in the industry they are "supposed" to regulate.

Re:Fair use when it suits them

[LordLucless]

No, Stallman owns a butter knife, and thinks it is a katana.

If it really was, the beast would've been slain decades ago.

Re:Fair use when it suits them

[phantomfive]

Exactly. There is no hypocrisy here. They do what they can, according to the law. Just like you, or I, or any sane person would do if we ever appeared in court.

Re:Fair use when it suits them

[Anonymous Coward]

Well, that and sunshine. Open air sets were needed for lighting, and it rarely rained there.

Re:Fair use when it suits them

[Tharsman]

Both are forms of intellectual property, but both are still very different in scope and execution.

Patents cover inventions. Also, patents require thousands and thousands of dollars to apply for, and it may take millions to defend against a patent claim. It can take at least 5 figures to attempt get a patent invalidated, no matter how unfair it is or how much prior art there may be. Patents also work as a blockade, as soon as you have them, you can legally stop anyone from inventing something that is too similar or depends on similar ideas, even if the new inventor had no knowledge of the existence of your patent.

Copyright covers arts and literature. Copyrights are automatic. As soon as you write a page of a short story or do a doodle, the copyright belongs to you. Although a copyright case can also eat a lot of money, it is focused on proving the infringing artist was aware of your work before he made his. If he had no clue of it, and you had no evidence to the contrary, there is no case. If you have evidence, then things can get more complex and things like Fair Use come into play. Copyrights do not work as a creative barricade. As long as my work is unique enough, similitude or reuse of certain ideas is fair game, even if you were aware of the original art.

Without copyrights, a writer that comes up with a script and attempts to sell the script to a studio can forget about it. As soon as he shows the script, the studio would be able to just make the movie and never give a penny back. An indie developer would also get screwed. He would spend months or years working in a game, publish it, and now any big studio can decide to just copy his work and sell it in big stores without giving him a penny.

The only problem right now with copyright law, is how it's used by the music industry to harass civilians, specially the use of precedent to claim absurd amounts from theses poor people, cases that were originally ruled upon the idea that a big corporation doing the infringement should not feel the consequences of being caught to be negligible. Citizens should not be pursued under that same standard.

Patents are horrible, and turn the inventing into an over encumbered practice. You are expected to do insane amounts of research before you can even proceed with the most ridiculously small segments of inventions, you may find that a round knob in a centered position on the top of a box to be patented. It is nearly impossible to do and ends up making it a huge gamble for anyone but large corporations to invent anything without running the risk of being sued to bankruptcy.

Patents need to be killed. They are horrible and just get in the way of progress, counter to what they were designed to do. Products name and design should be allowed to be copyrighted as the only way to protect the creator from being ripped off.

Re:Fair use when it suits them

[Doc Ruby]

You're talking shit. You're a Teabagger fool to whom nothing has to actually make sense.

Goodbye.

Re:Fair use when it suits them

[Compaqt]

Or another option:

Both:
1) There is hypocrisy.
2) They do what they can, according to the law.

Re:Fair use when it suits them

[MikeBabcock]

Both patents and Copyright are excellent, in the form described by Congress originally.

Copyright and patents as (very) limited times for authors to have power over those who would steal their inventions is worthwhile and good for any economy. However, 100+ year Copyrights and absurd "barely any different" patents that act as infinite extensions are not.

The system needs reform, not demolition.

Re:Fair use when it suits them

[AI0867]

Actually, he does own one.

Re:Fair use when it suits them

[Proudrooster]

From the Warner Bros. Counsel:
“That’s the real question: the copyright act balances the copyright owners’ rights and not stifling the creativity of the owners — it would stifle creativity to not be able to make a parody,” Mr. Harkins said.
It is good to know that Warner Bros. has such a good handle on copyright law and I am sure they will stop sending DMCA takedown notices to people who post parody videos on YouTube.

Re:Fair use when it suits them

[ArsonSmith]

For Hollywood, copyright has one meaning: inflating their profits. Unfortunately, almost everyone in America has forgotten that copyright is supposed to exist to improve the people's access to works of art by making money for copyright holders, and so Hollywood manages to get away with their abuse of our legal system.

FTFY

Re:Fair use when it suits them

[avatar139]

This philosophy makes me sad. Not because it's wrong, or because it's right, but because it indicates that people think the most compelling reason to do something is because of monetary or other material gain.

Why does it have to be one or the other though?

I've always endorsed the old saying, "do something you love and you never have to work a day in your life." Money is (ideally) supposed to be a reward for a job well done, so I think it seems a bit arrogant on your part to make the assertion that the motivation of an artist automatically has to be either his art or his bank account.

Personally, I used to sideline as a professional vocalist and I liked to think I made money, enjoyed my work along with the joy that it brought others, along with being proud of all the effort that I put into the job that I did!

(I would argue that we would have just the same, if not more, cultural and technical innovation if we had much weaker copyright and patent systems, because people would actually have to work hard to produce things of extraordinary value in order to gain from them.)

I think that would be true if people weren't so willing to always go for the cheaper option even if it's total crap. Research and Development costs money, so Patents (in theory at least ;) are supposed to allow a company to protect that investment by preventing companies from churning out cheaper products due to not having to pass the R&D costs back to the consumers, which isn't exactly going to help innovation flourish either. ;)

Don't get me wrong, though, I do think strong reforms are certainly needed to correct the way the present patent system is being implemented, as currently the reality is far from the ideal theory that led to the original development of the patent system, as right now IMO it's doing far more harm than good in assuring that innovation is encouraged/rewarded!

Re:Fair use when it suits them

[avatar139]

For Hollywood, copyright has one meaning: inflating their profits. Unfortunately, almost everyone in America has forgotten that copyright is supposed to exist to improve the people's access to works of art and science, not just to make money for copyright holders, and so Hollywood manages to get away with their abuse of our legal system.

That and all the money they spend on lobbyists and pressuring actresses to have casting couch sessions with congressmen doesn't hurt either, I suspect! :P

Re:Fair use when it suits them

[brusk]

No, he/she is quoting the Constitution directly. You, on the other hand, have treated the right to free speech as an absolute right, which I agree that it should be, but the US constitution does not make it that; it only guarantees protection from government control of speech.

Re:Fair use when it suits them

[Anonymous Coward]

Read up on Edison sometime - he was a complete asshole not satisfied with making shitloads of money when he could also gain total control over whatever he touched.

So he was the Steve Jobs of today?

Re:Fair use when it suits them

[Daniel Dvorkin]

There is no hypocrisy here. They do what they can, according to the law. Just like you, or I, or any sane person would do if we ever appeared in court.

Hypocrisy is holding others to a standard to which you're not willing to hold yourself, which is exactly what's happening here. No, it's not illegal, but it's repulsive. And no, sane people do not take every possible advantage of the law to bludgeon people, and then use that same law as a defense when they're the ones on the receiving end of the bludgeoning. Sane people do their best to avoid legal conflict altogether, which is something the IP industry is notably reluctant to do.

Re:Fair use when it suits them

[trout007]

I used to think similar things. But I kept seeing how the system was being abused. I read the following book Against intellectual Property. As one would expect this book is public domain. It gives examples from history and ideas for the future about how creative people can still make money without intellectual property rights. Thing food and clothing. Recipes and designs cannot be copyrighted. Yet these industries thrive and the creative people make money inspire of copies. The one part of intellectual property the author finds the sleast offensive is trademarks. Copying a trade mark is akin to fraud since you are claiming the product you made is made by another company.

http://mises.org/journals/jls/15_2/15_2_1.pdf

Re:Fair use when it suits them

[phantomfive]

Wow, I really don't think you understand the world.

Sane people do their best to avoid legal conflict altogether

Sane people avoid legal conflict, except when it is in their interest. Which is why the law exists in the first place.

And no, sane people do not take every possible advantage of the law to bludgeon people, and then use that same law as a defense when they're the ones on the receiving end of the bludgeoning

Yes, yes, actually they do. Especially in regarding IP law, which has a long history of legal fighting, and delicate balances being formed, for example, between song-writers, publishers, and performers.

Hypocrisy is holding others to a standard to which you're not willing to hold yourself, which is exactly what's happening here

The standard here is the law, as interpreted by the court. Let me know when Warner Bros gets parodied by someone, as judged by a court, and then continues to try to fight them. If Warner Bros loses this case, they will pay. But I think the law is on their side this time.

Re:Fair use when it suits them

[Anonymous Coward]

Well put.
The goal of copyrights and patents is not to confer limited monopolies, perpetual or otherwise. The goal was, and should be, to create incentives so that people will create stuff.
I'd like to see anyone make an honest argument that people would create less if they knew they would lose their copyright in only 40 years. For a start, the promise of one dollar of royalties 40 years from now is only worth ~6 cents today.

Re:Fair use when it suits them

[Daniel Dvorkin]

I understand the world just fine. I particularly understand that corporations like Warner which see the law as a weapon to be used and abused at every opportunity, and the corporate apologists who cheer them on, do your level best every day to make the world a worse place to live.

Sane people see filing suit as a last resort, not standard practice. Sane people do not decide to go to court the minute they think they might gain some advantage by doing so. Sane people know that the law doesn't, can't, and shouldn't encompass every aspect of what's right and wrong, and that there are many behaviors which are perfectly legal but morally repulsive. While corporations aren't people no matter what Santa Clara says, if they were, they'd be psychopaths ... and people like you would be their fan club, like the sickos who write fan letters to serial killers.

Re:Fair use when it suits them

[dryeo]

It was never really about the creator. Rather it has always been about the publisher. Way back in 1695 when the Licensing of the Press Act (1662) expired, the publishers (then known as stationers) first pushed for renewal for censorship purposes. When that failed they brought up the inherent right of ownership of the authours. They did this well knowing that the only option for an authour was to sell all rights to the stationers.
When copyright was first being introduced the stationers argued for infinite ownership so they could always profit, not the creator.
This continues to this day. We have movies such as Forest Gump, The Titanic, The Lord of the Rings trilogy that even though wildly successful, never made a cent according to the Hollywood accountants.
We'll never see the sequel to Forest Gump made into a movie because the creator didn't make any money from the movie.
Read up on Hollywood accounting, and the record labels use similar accounting methods that see the actual creator just going into debt for their work even when it is somewhat successful.
The "Its for the Artists" has always been misdirection due to it really being about the publishers and if you look into it, it has mostly been the publishers who have pushed the endless copyright extensions, the laws against fair use and most of the other extensions to copyright law. The exceptions have usually been relatives of the artist who think they are entitled to never work due to accident of birth.

Re:Fair use when it suits them

[phantomfive]

Oh no sir, if I were trying my best to make the world a worse place, I would rid you of it. Take that.

Fear not the corporation. It's just a bunch of people.

Re:Fair use when it suits them

[dryeo]

and publishers and similar should be encouraged to find new authors instead on relying on collecting the benefits of works created a century ago.

This is one of the most important arguments to make. Too many people (especially politicians) believe in intellectual property being equal to real property and we need an argument about incentive as most of the other arguments about IP come across to these people as us just wanting free stuff.

Re:Fair use when it suits them

[dryeo]

It goes much further then the American constitution (some of us are in different countries). The original copyright law, the one that was written for other reasons then censorship, was titled
An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned
And that is the real reason for copyright, to promote learning of the common person, which includes advancing the sciences and arts.

Re:Fair use when it suits them

[dryeo]

Still shouldn't the first amendment override the copyright clause? It is pretty simple, something like "Congress will make no laws abridging speech" (I'm not American so forgive the paraphrasing). Other amendments have changed the constitution, eg the date of elections and when the government gets sworn in, even how often someone can be President.
Congress has passed laws that make it illegal to do something simple like sing Happy Birthday in public which seems to be in direct contradiction of the first amendment and should be unconstitutional.

Re:Fair use when it suits them

[dryeo]

I'm sure some lobbyists are working to fix that. If copyright is good for eternity minus a day, why shouldn't patents be the same. They're both IP.

Re:Fair use when it suits them

[1u3hr]

sane people do not take every possible advantage of the law to bludgeon people, and then use that same law as a defense when they're the ones on the receiving end of the bludgeoning. Sane people do their best to avoid legal conflict altogether, which is something the IP industry is notably reluctant to do.

You seem to be using the word "sane" to mean "not assholes". Unfortunately, many sane people are assholes, and will use any method available if it profits them. They're well aware of the hypocrisy, they just don't care.

Re:Fair use when it suits them

[Anonymous Coward]

The interesting thing about the experiment is that it would kill the dinosaurs. If you suspended copyright for 10 years, all the legacy middle men who are currently screwing everything up would almost immediately go out of business. Even if you brought copyright back 10 years later, they would still be gone.

Re:Fair use when it suits them

[dryeo]

Patents were broken long ago. The innovations related to the steam engine were delayed by decades due to patents.
A more recent example is the airplane. Once again due to patents innovation was stifled until the patents expired or were taken away by immanent domain due to the First World War.

Re:Fair use when it suits them

[dryeo]

More like Bill Gates. Seems most of his inventions were actually someone elses and he took credit.

Re:Fair use when it suits them

[Anonymous Coward]

Seems most of his inventions were actually someone elses and he took credit.

That matches Steve Jobs right to the letter.

OSX = BSD. NExTSTEP = Mach Kernal made by the Carnegie Mellon University. iPod = many MP3 players before it. iPad = Android tablets made in China (YouTube review of Android tablet 2009). iPhone = Palm Pilot.

Re:Fair use when it suits them

[theshowmecanuck]

How does it "lose" in software?

Patent Trolls

Re:Fair use when it suits them

[aylons]

At the time, however, the equipment that allowed you to create and/or view the motion pictures was covered by Edison's patents, and so it gave him significant leverage in imposing morality codes on what people produced using that equipment. Read up on Edison sometime - he was a complete asshole not satisfied with making shitloads of money when he could also gain total control over whatever he touched.

If you feel Edison is too old, you may just read up on Steve Jobs.

Re:Fair use when it suits them

[Xachariah]

And not just "for science", but for the good of all of us

Except the ones who are dead.

Re:Fair use when it suits them

[Ash-Fox]

Patents cover inventions.

They also cover obvious ideas, mathematical concepts, prior art etc. The evidence of this is in pretty much many past Slashdot articles.

Re:Fair use when it suits them

[brusk]

It is not an abridgement of freedom of speech to be unable to sing a particular song without owing royalties--it would be illegal for Congress to ban the expression of birthday greetings in general, but one can do so in other ways. There are other legal restrictions of speech (e.g. laws against libel and threats) that are also constitutional.

Re:Fair use when it suits them

[Grumbleduke]

There was a wonderful line in the recent (and very encouraging) Independent Review of IP and Growth run on behalf of the UK government:

As has been noted by a number of commentators, no one has yet discovered a mechanism for incentivising the deceased.

The review strongly recommended against any form of copyright extension; however, that's not likely to change UK policy - lobbyists are much more convincing than academics.

Re:Fair use when it suits them

[Anonymous Coward]

Bologna. Movies are made in SoCal because it rarely rains (and messes up your shoot) there. Rain insurance is cheaper.

Re:Fair use when it suits them

[Khyber]

That's not a katana. That's a piece of shit stamped metal blade likely forged from 4210 leaf spring off of a truck, it's not even folded steel.

This is a real katana and THAT is what the blade should look like.

Re:Fair use when it suits them

[Tharsman]

Thing food and clothing. Recipes and designs cannot be copyrighted. Yet these industries thrive and the creative people make money inspire of copies.

They cant be copyrighted but there are "workarounds". For one, simply keeping recipes secret in the food department. Other than that you can trademark names for foods, and you can copyright art that is attacked to the brand, and huge amounts of marketing result in convincing the masses that brand is better than anything else that happens to be out there.

As far as clothing goes, you may notice a big amount of branding in clothing these days. Every day it seems to be more and more obvious (ever seen huge AX or CKs stamped all over people's shirts while walking down the mall?) The design may not be copyrighted, but the logos are making it impossible for anyone to fully copy your design, since it depends on copyrighted art.

I am sure there are ways to make some money without depending on copyright law, but removing such laws will change things drastically. As soon as a big publisher realizes that he can just make as much money by grabbing any author's books and selling them without paying royalties, they will start doing that. It's a chain of events that ends up only favoring he who already has loads of money and connections to push their products.

Re:Fair use when it suits them

[dryeo]

The first amendment is very simple, no law shall be passed by congress. So it would only be constitutional for state legislatures to criminalize things like libel and threats.

Re:Fair use when it suits them

[Surt]

Why wouldn't it be good for them? It would enrich their descendants, improving the likelihood of their gene's or meme's long term success, which is pretty much the only measure by which the dead can have something be good for them.

Re:Fair use when it suits them

[Surt]

You've already been modded flamebait, which I think is unfair, but since I've posted:

I'd argue you're plain wrong. Of course we have more creative works than at any time in history. We also have more population. The question of whether or not we'd have even more without copyright is open for debate. China, for example, has basically no copyright enforcement, and an absolutely exploding number of creative works. In fact, they've created more such works than all of western society in all of history, just in the last 200 years.

Re:Fair use when it suits them

[kimvette]

For one, simply keeping recipes secret in the food department.

You can keep the proportions and preparation process secret but you have to disclose the ingredients due to health concerns (allergies and intolerances). Unfortunately many restaurants refuse to disclose the info despite the FDA requiring them to upon request, and worse, companies like Hershey have been lobbying to be allowed to not be forced to disclose soy and other allergen content.

I am all for keeping proportion and process info secret if these companies so desire, to protect their business interests, but not for hiding ingredients.

Re:Fair use when it suits them

[sjames]

So, if I were to mass produce stickers of their animated characters peeing on auto maker logos, that would be fine by them right?

Re:Fair use when it suits them

[Macgrrl]

Maybe they should check down the back of the sofa...

Re:Fair use when it suits them

[Macgrrl]

I see your Android and Palm Pilot references and raise you a Newton.

Re:Fair use when it suits them

[Anonymous Coward]

I had forgotten this story but it is exactly right !

Re:Fair use when it suits them

[trout007]

I suggest you read at least some of the book. It is very interesting. Your comment " As soon as a big publisher realizes that he can just make as much money by grabbing any author's books and selling them without paying royalties, they will start doing that." Yes but look at works that are out of copyright. They are available on the internet but also publishers still sell them. But since the IP is free the cost for the books are quite low.

Also you always have a short term natural copyright. If an author signed a contract to produce a book for a publisher the publisher would need to do an analysis to figure out how long they will have to sell the book at full price until competitors can copy it. There will be a time where they are the only ones selling the book before copies can be sold. Plus take a look at your brand clothing example. There are obviously people that will pay a premium for the same item if it is made by a particular brand. The book industry could do the same thing.

Re:Fair use when it suits them

[Anonymous Coward]

Umm... the uncloudy says and "virgin" outdoor scenery were huge advantages for filming, too. There were multiple reaons for Hollywood becoming the place to be, to make movies.

Good!

[mangu]

Let them taste their own poison

Big Deal

[Oxford_Comma_Lover]

The major content producers are Pro-IP because it's where all their money is, sure, but the argument WB is making is that it's a parody, and *nobody* in the US comes close to saying parodies are not okay, because courts would reject that argument. Kind of like how in the recent video game case, the real trick was trying to get around any reasoning that meant the government could ban books.

The First Amendment makes it really hard to argue parodies are not okay.

Re:Big Deal

[Anonymous Coward]

This is one of those cases that may appear simple on the surface but really isn't. In the past it's been argued that while parody or satire of a work is protected, using that work to create a parody or satire of a different subject might not.

You and I would probably agree that it shouldn't even be up for debate, but Big Content has led the assault on fair use and it's really hard to pity them when their own arguments bite back. Especially when so much of their own material is derivative, one would think it behooves content producers to be at the forefront of defending fair use -- how much do they have to spend in lawsuits and research and licensing agreements just to make their films culturally relevant?

Re:Big Deal

[hedwards]

Except that this isn't parody by any reasonable definition. Which is going to be a real problem. I haven't seen the film, but merely slapping an identical looking design onto a character, even if the character is a parody, is not sufficient to extend fair use to that. Especially since there's no reason why the design needs to be that similar to the original.

Re:Big Deal

[Anonymous Coward]

Oh come on a white hung-over nebbish nerd boy is an obvious parody of Mike Tyson

Re:Big Deal

[Anonymous Coward]

You and I would probably agree that it shouldn't even be up for debate, but Big Content has led the assault on fair use and it's really hard to pity them when their own arguments bite back. Especially when so much of their own material is derivative, one would think it behooves content producers to be at the forefront of defending fair use -- how much do they have to spend in lawsuits and research and licensing agreements just to make their films culturally relevant?

It seems unlikely that anyone in the entertainment business has the necessary perspective to even consider that point of view.

Re:Big Deal

[Anonymous Coward]

Parody only applies when you are actually parodying the thing that is copyrighted. For example, if they put this exact tattoo on the character's face to make fun of the design of the tattoo itself, they'd be 100% ok. If they use the exact tattoo to just generally make fun of Tyson's face tattoo, probably not ok, because they could have just used a vaguely similar but completely different design and made the same point.

copyrighting meat canvas

[Anonymous Coward]

does this make Mike Tyson a work of art or a piece of work?

Re:copyrighting meat canvas

[Anonymous Coward]

Or does it make him a parody of himself?

Re:copyrighting meat canvas

[Anonymous Coward]

Should you ever meet him in person, I suggest you call him the former rather than the latter.

Re:copyrighting meat canvas

[karnal]

You'll be alright as long as Phil Collins isn't playing in the background.

oh now I feel dumb

[Osgeld]

I thought it was the face tattoo from star trek voyager's Chakotay

Re:oh now I feel dumb

[Anonymous Coward]

you're not the only one

Re:oh now I feel dumb

[iamhassi]

Since Chakotay's face tattoo pre-dates Tyson's by about 8 years doesn't that mean Warner Bros is off the hook?

Re:oh now I feel dumb

[iamhassi]

My mistake, the tattoo's are identical, so warner bros stole the exact same design.

Sue away.

Re:oh now I feel dumb

[Anonymous Coward]

nope makes him a canvas.

Irony

[CTU]

it will be a pleasant twist when WB goes after somebody for a parody of their material and having this case thrown back in their faces :)

Although, major studios believe that law only works one way...for them.

ITT:

[Legal.Troll]

almost every single poster (including, apparently, the OP and approving editor) cluelessly thinks that this is ironic in some fashion.

Re:ITT:

[Stormthirst]

That's cos it is...

Re:ITT:

[sammyF70]

WB routinely asks youtube (which more often than not complies) to remove videos which use (sometimes insignificant parts of) the works they own the copyrights to, even though those often fall into the fair use case they are argumenting for. You don't think that's ironic?

Re:ITT:

[TapeCutter]

No, just hypocritical.

Re:ITT:

[sammyF70]

that too.

Re:ITT:

[Legal.Troll]

You're aware that use of only small portions of a copyrighted work is not automatically fair use, I trust? Or are you just spouting off uninformed crap on Slashdot? My money's on the latter.

Re:ITT:

[sammyF70]

as oppposed to using a complete artwork in a commercial movie? ah ... right ... just read your username ...

Re:ITT:

[Legal.Troll]

Fair-use defense sounds plausible here to me. In any event, as long as you recognize that there isn't the slightest tinge of irony at play here, my work is done.

This should be a non-issue

[Anonymous Coward]

According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.

So the work belonged to Tyson, not the artist at that point (unless they agreed otherwise). And if Tyson gave permission for it to be used, then there is no problem.

Re:This should be a non-issue

[mangu]

According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.

Tell that to the photographer you hired for your wedding.

Re:This should be a non-issue

[Berkyjay]

Ahh, beat me to it. Exactly, thank you.

Re:This should be a non-issue

[QuasiSteve]

Well that's usually in their contract. Thankfully, not every photographer does this.. hit google to find out where you can find them and whether they're available for shoots.

The question then is whether or not Mr. Tyson signed a similar such contract OR whether the work could fall under the same laws that absurdly make taking photos of statues and other works of art ( http://en.wikipedia.org/wiki/Cloud_Gate ) violations of copyright resting on them from their original artist - enforced only when commercially exploited, but still absurd.

Re:This should be a non-issue

[I'm not really here]

They make you sign an agreement that they retain the copyright... get a good photographer, pay the higher price, and have it be a work for hire instead of the standard contract that leaves those photos as his/her property!

Re:This should be a non-issue

[hedwards]

Mike Tyson apparently doesn't own the rights to the original. It was apparently agreed to that the tattoo artist would own the copyright to the tattoo. Which seems odd to me, but that was apparently what they agreed to.

Re:This should be a non-issue

[cynyr]

Hmm? I own all my wedding photos, and have the document to prove it. Now I did end paying 2-3 times what i could have, but I really wanted the copyright assignment. Of course in the contract was the ability for the photo place to use them in advertising and promotional material, and I would hardly ever deny a photographer rights to use it in a portfolio, and if I did I know I pay very well for it.

Re:This should be a non-issue

[Jah-Wren Ryel]

It was apparently agreed to that the tattoo artist would own the copyright to the tattoo. Which seems odd to me, but that was apparently what they agreed to.

I have a friend with lots of tattoos, one of them actually includes a (c) symbol on her skin. So I'm thinking it may be pretty common after all.

Re:This should be a non-issue

[immaterial]

It is only automatically assumed as a work for hire if the creator is an employee of the person/company that did the hiring. One-off contracts like with a wedding photographer or a tattoo artist are not employer-employee relationships, and the works are not assumed to be works-for-hire unless the contract says so (now, a wedding photographer is going to spell it out in their contract either way, because they want to make it clear to you).

Re:This should be a non-issue

[Dachannien]

What kind of idiot agrees to let someone else have the copyright on something that is permanently on your face?

Oh, wait, I forgot we were talking about Mike Tyson here. Never mind.

Re:This should be a non-issue

[RogerWilco]

The tattoo on Tyson is probably his, but the design might not be.

Re:This should be a non-issue

[LordLucless]

Why? What possible use would it be for you to have the right to duplicate it - unless you happen to be a tattoo artist?

Re:This should be a non-issue

[VortexCortex]

According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.

So the work belonged to Tyson, not the artist at that point (unless they agreed otherwise). And if Tyson gave permission for it to be used, then there is no problem.

Brilliant! I'm getting a tatoo with a flag and a half eaten apple surrounded by a hex code on my ass so I can moon a whole court room full of copyright and trademark litigators when Sony, MS and Apple sue me!

Re:This should be a non-issue

[wickerprints]

In the US, no professional photographer is going to relinquish their copyright just to take photos of you unless you are a celebrity and/or are willing to pay a HUGE amount of money. The client doesn't need reproduction rights to the artwork; they just need copies of the artwork. The photographer needs the copyright because it is THEIR artistic vision that set up, directed, lit, took, and edited the shot. Not you. It may be a picture OF you, but it is still the photographer's aesthetic choices that makes it more than just something you took with your mobile phone. That copyright permits them to use the image for non-commercial purposes. This includes exhibition in a fine art gallery, as well as portfolio use.

Unless you have a specific need to control access to the images (e.g., you are a high-profile celebrity getting married and want the only copies in existence), paying for photo copyright is a waste of money. For a price, any good photographer will provide you their best high-resolution images. They'll give you versions you can post on Facebook if you want (*shudder*). Some will do their own prints, or give you permission to print them yourself. The point is, they'll gladly work with you to provide you with whatever usage requirements you have, but if you ask for the copyright without suitcases of cash in hand, you will be denied, because that is asking to TAKE SOMETHING AWAY FROM THEM.

Re:This should be a non-issue

[Mr. Freeman]

Most of them want to retain the copyright so they can charge you obscene amounts of money to get the prints. They want you to have to pay them for every single copy of every picture that you want. Of course, they bury this in a 20 page contract filled with obtuse legal jargon so that it's hard to find. You only figure this out after your wedding, after all the pictures have been taken, and after your photographer has told you that you'll be paying $20 for every 5x7 copy of every picture you want. They won't give you the negatives and every picture comes stamped on the back with "do not duplicate, property of ".

Your argument about the photographer's artistic vision would be valid if you weren't paying the photographer for their time. In the case of a wedding you're paying the photographer to use their artistic vision, you're paying them for their time. YOU hired them, YOU paid them for their time, those photos are YOURS. There is absolutely no reason the photographer should retain the copyright on the photos. A wedding is different from a photographer taking their own time to go and photograph a public event.
Think of it this way, the photographer wouldn't have the opportunity to photograph your private wedding if they weren't invited. It's not like you're trying to be evil by taking away the rights to their photos for something that's open to the public.

Obviously they should be allowed to put them in their portfolio and whatnot, but I believe that there's an exception in copyright law exactly for this purpose. If not, then the contract should address this. Regardless, the photographer does not need to have full control of the copyright just to put them in their portfolio.

Re:This should be a non-issue

[brusk]

Which seems odd to me, but that was apparently what they agreed to.

It's pretty much the same as a painting Tyson might have purchased from an artist: he would own the painting, but the artist would retain copyright (unless it was contracted as a work for hire). It doesn't matter, legally, that the work happens to be on his body.

Re:This should be a non-issue

[wickerprints]

First of all, "negatives" are a thing of the past insofar as 99% of wedding photography is concerned. It's all digital now. You want the unedited raw files? What would you want with them, clone out all the blemishes and do your own post processing because you're SO much better at it than the photographer you've paid to do it for you?

Let's put it this way: feel free to take your own damned wedding photos if you think the photographer's just there to snap some shots. Nobody's stopping you. You want complete copyright of the images? Then buy it. The price reflects the value of the work. Think it's too expensive? Buy your own cameras, lenses, strobes, modifiers, and learn how to take them for yourself. See how far you get.

Re:This should be a non-issue

[andymadigan]

"That copyright permits them to use the image for non-commercial purposes."

False. Copyright gives them *full* rights to the work. If they want to sell them (maybe you'll be famous 20 years from now, maybe they'll sell it for use as clip art) they can do so without your consent. If they just want it for non-commercial and portfolio uses, I'll happily license it *to them* for that purpose. Otherwise, I hired them and it's work-for-hire. If they don't want the job I'll give it to someone else.

Re:This should be a non-issue

[deuist]

If you had RTFA, you would realize that Tyson is backing up the artist's claim and further states that no one else should be using the tattoo.

Re:This should be a non-issue

[Anonymous Coward]

Hahahahahaha!

You must be an insecure photographer. If you spent any time reading this site, you would realize that the reason people would want the raw images (or program source code) is so that they could pay somebody else to edit it if the need arose. You think the original photographer is always going to be conveniently available to do whatever needs to be done for those photographs? Even 50 years from now? And the right to copy the "post-processed" images is so unbelievably useful, that only an idiot would cede that right to the craftsman who generated the original.

Re:This should be a non-issue

[Anonymous Coward]

To take a photo of yourself. Copyright is not limited to the same form of art. That is why J K Rowlings gets money for the Harry Potter movies.

Re:This should be a non-issue

[Anonymous Coward]

If Mr. Tyson choose between several tattoo-designs in a catalogue, as he likely did, then the design is not work for hire is it?

Re:This should be a non-issue

[Anonymous Coward]

You have it backwards. By default the copyright goes to the artist. You must specifically have a work-for-hire contract, or else copyright defaults to the person that created the work.

Re:This should be a non-issue

[Anonymous Coward]

According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.

So the work belonged to Tyson, not the artist at that point (unless they agreed otherwise). And if Tyson gave permission for it to be used, then there is no problem.

Tell that to the Architect who designed you custom house. Or the building department in your town who won't let anyone copy your plans.

Re:This should be a non-issue

[Anonymous Coward]

According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.

So the work belonged to Tyson, not the artist at that point (unless they agreed otherwise). And if Tyson gave permission for it to be used, then there is no problem.

Copyright can only be transferred by a "writing" even in a "work for hire" situation. Absent any written transfer of the artists copyright, it remains his work.

Re:This should be a non-issue

[Agent0013]

This discussion about wedding photographers keeping the negatives and copyright is interesting. Especially since the photographer my wife and I had gave the negatives to us as her normal course of action. As an actual artist, rather than lamer with a camera, she had no interest in wedding photos. She did not offer to sell us albums either, that was up to us to do on our own. She actually does very few weddings, focusing on other subject matter for art. The weddings are something that she does to fill in down time, or make some extra money. But to her, it would seem, those photos are not art. I absolutely love the pictures she took. Great eye and ability to capture the moment.

Re:This should be a non-issue

[Thelasko]

According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.

From TFA:

The complaint includes a photograph of the tattoo being inked and a statement from Mr. Tyson agreeing that “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property” of Mr. Whitmill’s business.

oh the irony!

[Anonymous Coward]

Karma is a bitch!

Whitmill's mistake

[frovingslosh]

Warner Brothers further stated that Mr. Whitmill failed to use any DRM when creating the tattoo, which would not only have protected the tattoo but also effectively served to keep it out of public domain even after the copyright expires, circumventing the intent of copyright law as spelled out in the Constitution.

Re:Whitmill's mistake

[Anonymous Coward]

But he did include DRM. The DRM was putting it on the infamous boxer Mike Tyson.

Re:Whitmill's mistake

[Anonymous Coward]

Great... now us flimsy geeks have to work really hard and... pry it out of his cold, dead GLOVES?

Re:Whitmill's mistake

[Anonymous Coward]

That's not Digital.

That's Analog.

Unless Tyson has been sucked into the world of Tron.

Re:Whitmill's mistake

[Anonymous Coward]

That's not Digital. That's Analog.

Try telling that to Mike Tyson.

Re:Whitmill's mistake

[dkf]

That's not Digital.

That's Analog.

Of course it's digital! There's 5 digits in each fist; 1 thumb, 4 fingers.

Re:Whitmill's mistake

[Anonymous Coward]

The Digital Rights Management was five digits, to be exact, and another five on the other side. Both curled up into fists.

End-run around the 1st amendment

[Omnifarious]

It sounds like the general public has discovered that copyright law and trademark law allows them to do an end-run around the 1st amendment. From the article:

The range of material that individuals and businesses are seeking to get copyright protection for has only been expanding, often at the insistence of movie studios. Mattel has gone to court to assert the copyright of the face of its Barbie doll; fashion companies have been lobbying Congress to pass a law to protect unique, nontrivial new designs. And trademark, which is governed by different laws and is much more contextual, has been used by athletes and coaches to get a measure of control over terms like “three-peat” or “Revis Island.”

This system is broken. Culture should not be owned.

Re:End-run around the 1st amendment

[swalve]

Spoken like a true hipster. Culture can't be owned. Appropriating people's artistic works isn't culture, it is consumerism.

Re:End-run around the 1st amendment

[hedwards]

Historically the way that was handled was by art patronage. The artists would be working in a studio most days the way that other people would and the patron would pay for their time. Which would allow a large amount of art to be produced. The main problem with it was that it tended to stifle creativity as one still had to worry about making something that the patron liked.

Locally, the city has paid for public art that then belongs to the city and is available for whatever uses people have for the works. There are some practical limitations like you can't take the statues, but it's definitely one way of handling the problem.

Re:End-run around the 1st amendment

[Omnifarious]

And once all the artistic works that are important to a culture are owned in perpetuity by their respective creators? That basically means culture is owned.

Culture should not be owned.

[frovingslosh]

Culture should not be owned.

And no reference to convicted rapist Mike Tyson should ever include the term "Culture".

Re:Culture should not be owned.

[Omnifarious]

He is, whether you like it or not. Sorry. Deal. If you don't like it, go shoot him yourself, though that won't stop people from talking about him.

What he should have done

[Anonymous Coward]

If he had trademarked the tattoo the studio would be screwed. It's why TV shows blur most logos. Trademarks are much stronger than copyright and usually stand up to fair use claims.

Re:What he should have done

[Anonymous Coward]

They blur them, AFAIK, because they don't want to freely advertise for various companies. Product/logo placement makes good money for them. It'd be stupid if they did it for free.

Re:What he should have done

[Patch86]

And product placement is illegal in some places, and subject to various differing regulations in others. Unless a company is getting paid for it (in which case their lawyers will work out the specifics), it's usually easier for them just to blur and forget about it.

Re:What he should have done

[Anonymous Coward]

Or come up with a non-product. I was just watching a show which had a soda machine that said "Cold Drinks" instead of any particular brand.

A question

[Vinegar Joe]

Does S. Victor Whitmill have permission from the Maori people to produce tattoos based on their designs?

Re:A question

[Anonymous Coward]

Does S. Victor Whitmill have permission from the Maori people to produce tattoos based on their designs?

You believe in indefinite copyright?

Re:A question

[Anonymous Coward]

Insightful... those designs are protected in New Zealand at least via the Treaty of Waitangi.

Re:A question

[Anonymous Coward]

Of course not. They're not American.

--

And no, the design wouldn't belong to Tyson unless he and the Whitmill specifically had a "work-for-hire" agreement.

Re:A question

[hedwards]

Why would he need that? By that logic architects would need permission from the Romans whenever they chose to include Roman arches in their buildings. A lot of architects would be liable for infringement around here if that were true.

Re:A question

[Anonymous Coward]

Well, there are a lot of people in the entertainment industry who feel that copyright should last forever. Thus logically, they think that the descendants of the Roman architects should have got a cut.

Re:A question

[Anonymous Coward]

Well the Romans would need permissions from the Mesopotamians first, before they could lay claims at the architects.
Bloody Romans.

Re:A question

[hedwards]

That's what I get for not paying enough attention to my posts. Sigh, that should've been Roman columns.

Re:A question

[Anonymous Coward]

If the Romans held the copyright, then yes.
IANAL but the arches would be public domain, same with the tatoos and I don't think you can copyright something that is public domain, or that has prior art.

So based on that, it don't think the Tattoo artists copyright would really stand.

Again, IANAL and stuff like this seems asinine to me.

Re:A question

[Anonymous Coward]

Maori tribal art stems from the 1970s. Ever been to New Zealand? Thought not. It's all crap made up to create an indigenous "art" to parallel the Australian Aborigines.

Re:A question

[endymion.nz]

You're an idiot.

Re:A question

[BancBoy]

Maori tribal art stems from the 1970s. Ever been to New Zealand? Thought not. It's all crap made up to create an indigenous "art" to parallel the Australian Aborigines.

Sorry if I'm feeding a troll here, but Captain Cook wrote this just a wee bit before the 1970s...

The marks in general are spirals drawn with great nicety and even elegance. One side corresponds with the other. The marks on the body resemble foliage in old chased ornaments, convolutions of filigree work, but in these they have such a luxury of forms that of a hundred which at first appeared exactly the same no two were formed alike on close examination.

Re:A question

[Anonymous Coward]

Not really - they use standard IP laws. There is an indigenous IP treaty settlement in negotiation (for ever) and there is an international discussion about indigenous IP rights going on but there are two main issues:

1. the US is fighting it because of big pharma's worries about harvesting medicines from indigenous people - they don't want to have to give anything back...

2. indigenous people are not happy that sacred knowledge will be protected for a period of time and then be free for any use.

The second of course is possible a fruitless worry, the sacred mouse will protect their religious icons and designs for ever.

PS: ok that's wierd the capcha for this post was "colonist"

Re:A question

[Anonymous Coward]

The ancient Romans aren't going to come suing you for copyright infringement because they don't exist any more. That does not apply to the Maori.

Re:A question

[Lord_Jeremy]

My father, who's somewhat of an authority on tribal art (he's a self-employed bodypainter and has published a book about tribal art), had an interesting tidbit for me when I mentioned this story to him. Mike Tyson has said that his tribal tattoo is a warrior's tattoo based on art from the Maori tribes. According to my father's research, the Maori and other tribes in that area of the world do produce such art, although the warrior tattoos are meant to be a form of endurance testing. The warriors of the tribes get their whole faces and most of their bodies tattooed through a painful process that proves their strength and endurance. Only the priests, who are too weak to handle what the warriors do, get small designs on just a part of their face. So yeah, Mike Tyson has a wimp tattoo...

Re:A question

[Hairy1]

This is an interesting question because it brings up a serious problem with how poor the common domain has become. Maori have a culture and cultural artifacts which they own collectively. It is their culture. No single Maori can claim it for themselves, but they together own it. Today virtually all the cultural artifacts of our period are owned by someone else. Try and use the artifacts of your own culture in a new work and just see how fast you will find yourself in court for copyright violation.

Sing a popular song, draw a picture of a Coke can, or copy a tattoo from someone who is famous, and suddenly it's a huge problem. But it is clearly a double standard. They can copy cultural artifacts, but we cannot copy them.

I'm not really standing up for pirates - outright duplication of works for profit - but I do think that there should be a liberal ability for individuals to copy segments in order to create new works.

Re:A question

[Anonymous Coward]

By that logic architects would need permission from the Romans whenever they chose to include Roman arches in their buildings. A lot of architects would be liable for infringement around here if that were true.

1. The IP on Roman arches would have reverted to the public domain by now.
2. The IP on Roman arches would have been granted by a legal entity that no longer exists and never signed the Berne Convention (the Roman Republic / Empire)
3. While copying the blueprints might violate copyright, copying the idea of the arches would not be.

Or am I being too pedantic? ;)

Re:A question

[Anonymous Coward]

Seeing as the Romans are long gone (and no the Italians are not the same :s) but the Maori are still very much with us; I don't think that's a reasonable analogy.

Re:A question

[Anonymous Coward]

Why would he need that? By that logic architects would need permission from the Romans whenever they chose to include Roman arches in their buildings. A lot of architects would be liable for infringement around here if that were true.

Because he's claiming that it's original work, but then referring to it as a traditional tribal design. So either it's traditional, and he therefore does not get to have a copyright since it's already public domain, or else it's not, and he's lying by calling it "traditional Maori tribal" instead of "Maori Tribal inspired". Either way, the tattoo artists has set himself up to be a dickwad.

Re:A question

[Anonymous Coward]

You're clearly not from New Zealand! Having recently moved here it's very interesting to see what can and cannot be done with Maori inspired things. So much so that nearly all kiwiana (as they call local art forms) steers very clear of anything with those roots.

Re:A question

[Overzeetop]

That does seem to be the general trend of copyright, no?

Re:A question

[Anonymous Coward]

Great point! Ant it was the intent of the founding fathers for copyrights to be farily short so items would become part of the common culture, as you put it, in a reasonable period of time.

Depends on what you mean by "works"

[Mathinker]

> have more creative works and greater access to them than at any point in history. The system, flawed as it may be, works.

I'm willing to cede you that if your definition of "works" is that narrow, you might be right. Unfortunately, other people are also interested in things like anonymity, the ability to secretly share information without fear of government intervention, and other freedoms which they think are a bit more important than how many Hollywood blockbuster movies get released every year. "The system" is currently very successful financially, yet not so successful at preventing the implementation of anti-piracy procedures which infringe on these freedoms --- this is because all of the money is on the side of the hyper-enforcement of copyright side.

My apologies if when you wrote "the system" you meant "as it is now without PROTECT IP, COICA, ACTA, 3 strikes, etc.". My point is that copyright law seems continually evolving in one direction, towards more (and more onerous) copyright, and your observation that everything is actually working right should mean that it shouldn't be evolving at all.

Dear Judge,

[sootman]

We are thoroughly in favor of Fair Use rights... as long as it's in our favor. Help a brother out? (Ha! Get it?)

Yours truly,

- Warner Bros. Legal Department

Re:Dear Judge,

[Anonymous Coward]

I'll be in touch.

Gully Foyle

Warner likley wants it both ways

[Glasswire]

No doubt, if you or I, having seen the movie, wanted to paint ourselves up like Ed Helm, Warner would claim we're violating THEIR rights

Isn't it Tyson's?

[UESMark]

If he designed it for Tyson, who presumably paid him, doesn't the design belong to Tyson? Otherwise Tyson would owe the tattoo artist for every appearance and image of same produced of him. Which sounds impossible on its face (pun intended) to me.

Re:Isn't it Tyson's?

[St.Creed]

The artist and Tyson explicitly arranged a copyright transfer to the tattoo artist, which is why he has a rather strong case at the moment: he can show a contract between him and Tyson giving him the rights to everything that's based on that tattoo. The contract also predates the movie by several years.

Now you can argue about the silliness of copyright on this, but he is an artist and copyright does work this way, even if the canvas is a person. And Warner Brothers is about the last entity in the world that can claim ignorance on copyright issues, so they're probably going to try and get a deal, because if it goes to trial I wouldn't give them much chance. Not when every good defense will also backfire onto your own use of copyright to intimidate people.

All in all: good news. I hope the artist takes them to the cleaners. Perhaps that will teach them something about why abusing copyright is similar to wielding a bioweapon: it tends to backfire.

It's only fair

[chuckymonkey]

I think that they should be charged for every person that could have potentially seen the ads with the tattoo. If they pay 17trillion dollars to Mr. Whitmill that should cover all the infringement. Seems fair to me.

shoe.other.foot

[Anonymous Coward]

hahaha this is warner brothers who tried to sue an indian film company for a film titled "harri putar" saying it was too close to harry potter...even though the storyline was entirely different...surely thats "fair use" which they are now using a a defense for themselves when they exactly replicated a piece of art (from POV of tat2 artist) anything they now claim is going to shoot their own arguments dead..hilarious..

Maori's are alive and well

[Anonymous Coward]

Approx - 1 Million Maori's are alive and well in New Zealand - have political clout - and own lot's of land so any Maori "designs" are part of Maori's culture - seems to me said claim may have issues ....

Sure, go and tell Mike Tyson

[Anonymous Coward]

That you OWN part of his face. Make sure you say it real nice and loud-like.

Mr. S. Victor Whitmill

[sgage]

is a flaming asshole. He should be sued by the Maori, from whom he ripped off "his" design. What a scumbag.

The "artist" is a jerk

[CheerfulMacFanboy]

"Tribal" artwork is owned by the tribes who used them for millennia - they feel bad enough about Westerners just using those sacred symbols (or some imitation) for a stale fashion statement. But actually trying to claim copyright on something you yourself copied?

Good artists copy, great tattoo artists from rural Missisoupy claim copyright.

Re:The "artist" is a jerk

[Adrian Lopez]

I was about to make a similar point. The tattoo artist is a hypocrite,

Re:The "artist" is a jerk

[Anonymous Coward]

"Tribal" artwork is owned by the tribes who used them for millennia - they feel bad enough about Westerners just using those sacred symbols (or some imitation) for a stale fashion statement. But actually trying to claim copyright on something you yourself copied?

Good artists copy, great tattoo artists from rural Missisoupy claim copyright.

The colour green represents my peoples ancient ties to the land, and their commitment to agriculture, peace and a refutation of the nomadic goat-herding ways of our distant cousins. By using this colour in the title of your post, you have co-opted our sacred symbol and have publicly defaced all that we hold dear, by making a (fashionable) statement.

Re:The "artist" is a jerk

[swillden]

"Tribal" artwork is owned by the tribes who used them for millennia

By that argument, it's in the public domain, so no one has any claim on it. Which actually makes perfect sense to me!

Re:The "artist" is a jerk

[Mr. Freeman]

""Tribal" artwork is owned by the tribes who used them for millennia"

Even with the ridiculous extensions in copyright law constantly being passed anything owned "for millennia" is in the public domain by now.

Re:The "artist" is a jerk

[mysidia]

Even with the ridiculous extensions in copyright law constantly being passed anything owned "for millennia" is in the public domain by now.

There are some things, that are allowed to have copyright, even though the rights would have long expired under the normal rules.

As a result, the mere age of the work, or count of thousands of years since its creation alone cannot be used to decide if it's subject to copyright or not.

Re:The "artist" is a jerk

[mysidia]

But actually trying to claim copyright on something you yourself copied?
Good artists copy, great tattoo artists from rural Missisoupy claim copyright.

Derivative works of public domain things are subject to copyright. For example, a copy of tribal art; rendered on a new form (such as a Tattoo); or with new creative elements, creates a new copyrightable work.

Depending on the Indian tribe's copyright laws, and if the tribe has a copyright agreement with the US government, those rights might be enforceable in the US.

Re:The "artist" is a jerk

[Anonymous Coward]

I thought 'tribal' just meant your tattoo artist sucked.. lol

Wait a minut!

[Anonymous Coward]

Before you go calling them twofaced remember that their position is the same in all cases: "We are correct, since we have the most money". Not two faced at all.

Parody does not include duplication

[erroneus]

We have seen the parody fair use claim before and watched it fail when the item in question is a complete replication of the work in question. By precedent, Warner Bros should lose this one.

Re:Parody does not include duplication

[Anonymous Coward]

They didn't put the tattoo on Mike Tyson. So it's not a complete replication.

Besides, the whole work is not about that tattoo. It could be digitally removed and aside from a few jokes, the movie would be just fine.

Well, for definitions of fine that include it still sucking.

Ferris Bueller

[fotoguzzi]

Reminds me a bit of the case of the Ferarri 250 that was really an MG.

Like Disney?

[Paradoks]

Does Disney have permission from the original authors for The Jungle Book, Snow White, Pinocchio, Song of the South, Treasure Island, Alice in Wonderland, 20,000 Leagues Under the Sea, Treasure Planet, and The Princess and The Frog?

Shameless self-promotion

[Lord_Jeremy]

In case any of you are wondering, my father's book is called Transformations! The Story Behind the Painted Faces by Christopher Agostino. Website

It doesn't matter

[Anonymous Coward]

Here is how reality works, has always worked, and always will work:

1) If you are a rich corporation, you can invoke fair use rights in order to make money from someone else's work.
2) If you are a non-rich person or corporation, you cannot.
3) If you are a rich corporation, you can sue anyone for using anything you created or bought, and win, at the taxpayer's expense.
4) If you are a non-rich person or corporation, you can sue on your own dime, and you will lose.

All of these are simple inferences from the highest law, also known as the "Golden Rule:"

He who has the gold, rules.

Work for hire

[Anonymous Coward]

Not just historically, Mike Tyson acted as patron to the tattoo artist and the tattoo artist produced art for him, to his liking (one imagines). If this tattoo artist really thinks he owns the tattoo, I reckon he should go and try to take it back. I'd pay to see that.

Another frivolous lawsuit

[Anonymous Coward]

S. Victor Whitmill is a greedy tool.

Screw Warner Brothers

[p51d007]

Let's turn the other cheek. Let's say we wanted to use a minute of a Warner Brothers film in a parody of something. You think WB would be so nice as to let us use it without a license? Considering how the MPAA goes after people on behalf of studios & artists, I think not.

Re:Screw Warner Brothers

[Ash-Fox]

Let's say we wanted to use a minute of a Warner Brothers film in a parody of something. You think WB would be so nice as to let us use it without a license?

Yes, the evidence is the numerous material parodying WB content on youtube, I don't believe anybody has been sued over parodying so far by WB on Youtube.

How's this for Fair Use?

[Cito]

Since we are going to watch this then make fun of it download your copy of The Hangover http://www.megaupload.com/?d=1HQJBA6A or http://www.icefilms.info/ip.php?v=34333& Since we are going to poke fun and parody it online, you can watch it free under fair use :)

So, what are the damages?

[Overzeetop]

If it's on the main character, and he's in 30% of the shots of a 100 minute movie, which is (25fps x 0.3 x 60 sec/min x 100 min) = 45000 instances per movie. Now, I haven't the faintest idea what kind of distribution is involved in this movie, but I'm going to go with 1000 prints made for distribution (40 prints per state, on average).

So we've got 45 million copies floating around at $150,000 each in statutory damages is $6,750,000,000,000 total. Now, I suppose it would be in both sides interest to settle for a nominal fee per infraction - say 3x the actual value of about $100. $13.5B should cover it. You know, he should really hire the RIAA lawyers for this one.

Pleeeeeeaaaaaaaaase!

[home-electro.com]

Modern wedding photographers are artists? Give me a break. Today they just shoot away 1000 images to select 10 decent ones. And why the hell should my photographer be allowed to use my photo in his gallery? Well he could ask me for permission to do so and I may grant it if I like the photo, but that is not automatic with him retaining the copyright.

Would you want your photo to be used in a gallery of bloopers? Thankfully, most normal galleries require releases from people in the images anyway.

Why so much press?

[sgt scrub]

Nobody is going to go see it in the theater. They are going to wait and download it off a bit torrent server. I wonder if WB will bitch about it?

Nail them down

[Anonymous Coward]

Big media shouldn't be able to have their cake and eat it too. I hope the judge tells WB that he will rule in favor of fair use, but WB (and their agents) will NEVER be allowed to bring a lawsuit fighting fair use ever again.

Zub? You got that 100% wrong

[Anonymous Coward]

The copyright holder is the creator. That's 99% of the reason for the crazy intellectual property contracts you end up signing on jobs, and why "due dilligence" for any start-up involves said contracts.

Exactly

[Anonymous Coward]

Yes they will win. It is within your right to infringe on copyrighted material while you are parodying it. Even more specifically in is you can show and use the original works free of charge as long as it was for the purposes of making commentary on that same material.
At least that's how I understand it.
watch this doc
http://www.youtube.com/watch?v=zdwN6rRU0Xk