Jimi Hendrix Is Cited During Supreme Court Arguments

Whipped Into A Frenzy
Whipped Into A Frenzy

The times they are a-changing…

Jimi Hendrix made an appearance at the Supreme Court on Wednesday in an argument over whether Congress acted constitutionally in 1994 by restoring copyright protection to foreign works that had once been in the public domain. The affected works included films by Alfred Hitchcock and Federico Fellini, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky and paintings by Picasso.

The suit challenging the law was brought by orchestra conductors, teachers and film archivists who say they had relied for years on the free availability of such works.

Chief Justice John G. Roberts Jr. posed the general question in the case this way: “One day I can perform Shostakovich. Congress does something. The next day I can’t. Doesn’t that present a serious First Amendment problem?”

Then the chief justice, a pioneer in the citation of popular music in legal discourse, asked the question slightly differently, invoking Hendrix, the great rock guitarist, to test the limits of the government’s position. “What about Jimi Hendrix, right? He has a distinctive rendition of the national anthem, and assuming the national anthem is suddenly entitled to copyright protection that it wasn’t before, he can’t do that, right?”

The solicitor general, Donald B. Verrilli Jr., making his debut in the post, said there were good reasons to allow Congress to restore copyright protection to works that had entered the public domain, even at some cost to free expression by performers and others. Responding to the chief justice’s hypothetical question, Mr. Verrilli said that “maybe Jimi Hendrix could claim fair use.”

(click here to continue reading Jimi Hendrix Is Cited During Supreme Court Arguments – NYTimes.com.)

fair use since the Jimi Hendrix version alters the anthem a bit, but unfortunately, even fair use is a tenuous legal foundation these days. Just ask Scott Baio, or Shepard Fairey

Near the end of his argument in the case, Golan v. Holder, No. 10-545, Mr. Falzone returned to the chief justice’s reference to performers like Hendrix.

“There can’t be any doubt, as I think Chief Justice Roberts got at, that the performance has a huge amount of original expression bound up in it,” Mr. Falzone said. “It’s the reason it’s different to see King Lear at the Royal Shakespeare Company; it’s the reason it’s different when John Coltrane plays a jazz standard.”

Zazzle and Dale Chihuly suck

A while ago1, before Flickr became my website of choice to host photos, I made some t-shirts and posters at the online print shop, Zazzle, from photos I took. I made a few for myself, but afterwords, left the account there, active, in case somebody stumbled upon one of my designs and decided to buy it. Not likely actually, and exactly zero people have done so in the six years or so I had the account.2

Today I got an email from Zazzle, reading:

Thank you for your interest in Zazzle.com, and thank you for publishing products on Zazzle.

Unfortunately, it appears that your product, Garfield Conservatory, contains content that is not suitable for printing at Zazzle.com.

We will be removing this product from the Zazzle Marketplace shortly.

The details of the product being removed are listed below:

• Product Title: Garfield Conservatory

• Product Type: Print

• Product ID: 228639274743114826

• Result: Not Approved

• Policy Violations:

o Design contains an image or text that is copyrighted.

If you are interested in purchasing Official Licensed Merchandise from Zazzle please visit: www.zazzle.com/brands

I’m pretty sure the image was this photo of a Chihuly exhibition at Garfield Conservatory.3

Garfield Redjar susume.jpg

Notice that I had modded the image in Photoshop so that it resembled nothing so much as just a magic marker sketch4. So for all the Zazzle zealots knew, I drew the image by hand. Is copyright law really that much in favor of factory artists like Chihuly? He’s famous for churning out thousands of glass pieces in his sweatshop, touching none of them, having his interns do all the actual work, he just markets the pieces. So my manipulated photo violated this copyright, somehow. Seems like this would be protected under “fair use” doctrine, especially since it isn’t a straight photo.

Strange world we live in.

I have deleted the remaining four items that were still listed at Zazzle, and have requested my account be deleted as well.

Funny also, on the Chihuly wikipedia page:

In 2006, Chihuly filed a lawsuit against a pair of glassblowers, including Robert Kaindl, whom he accused of copying his work. Chihuly was unsuccessful: the glass blower federation argued that Chihuly’s designs feature basic shapes; therefore any novice would be able to create the spiral glass which is featured in many of Chihuly’s composition

Looking at the simple vase floating in a pond – how could you copyright something as mundane?

  1. somewhere around 2003 []
  2. of course, I haven’t added any new items there in six years either – my initial experience was pretty shitty to tell the truth. The shirts were poor quality and the prints faded within a few wash cycles. I recall the entire “creation” process being incredibly awkward and cumbersome – the tools were poorly engineered and clunky. They might have improved since 2003, or maybe not []
  3. can’t tell for sure because the image had already been deleted and long ago that Google cache no longer had a copy []
  4. my Photoshop skills not that polished at this time. Ahem. []

Yes We Cannabis

Remember that photo of Obama that looked like he was maybe smoking a joint? You know, this photo

of a jaunty, young Barack Obama? (Published as part of a Time Magazine photo essay after the 2008 election)

Well the National Organization for the Reform of Marijuana Laws has appropriated the photo, without permission of the photographer, and made an amusing poster.

The folks at the National Organization for the Reform of Marijuana Laws got there first. For their annual conference poster, they took an old photo of cool-dude college freshman Obama puffing away — on a regular cigarette, mind you — and tweaked it just ever so slightly to fit their message: “Yes We Cannabis.”

Think it might be a problem for the president (who opposes legalization)? It’s really a problem for the photographer. Lisa Jack, an Obama classmate at Occidental College, snapped the image in 1980, one in a series of photos that never saw the light of day until she debuted them in Time’s 2008 Person of the Year issue. She had no idea her photo had been appropriated by NORML until we told her Tuesday.

“They do not have my permission,” said Jack, a psychology professor in Minnesota. These photos “are absolutely not to be used in this way. … I really made a grand effort to do this properly, and I’m very irritated. If I’d wanted these to be used for political purposes, I’d have sold them to Hillary years ago.”

NORML Executive Director Allen St. Pierre cheerfully acknowledged the lift by artist Sonia Sanchez, who summoned the psychedelic aesthetic of ’60s rock posters. “With very little adulteration, she placed what appears to be a cannabis cigarette” in the president’s hand, St. Pierre said. But she made few other changes: Obama “almost made the photograph for us.”

Everyone who attends the September conference in San Francisco will get a poster; NORML is also selling them on the Web ($25 for an 18-by-24-inch with St. Pierre’s autograph, $15 without). Can they do that? St. Pierre admits they didn’t get permission, but “our lawyers thought it was adulterated enough to comply with the fair use laws.”

[Click to continue reading Reliable Source – Furor Over an Obama Puff Piece ]

So is this kind of parody of a public figure that US copyright law allows? It isn’t quite as clear cut at the famous Larry Flynt -Hustler Magazine lawsuit with Jerry Falwell, but seeing as President Obama is on record as being against cannabis legalization, perhaps it is.

Nancy Reagan - Just Say Yo

The Wall Street Journal Law blog wonders:

But is it “adulterated enough to comply with the fair use laws?” The standard, a copyright lawyer tells us, is whether there was a “transformative use.” And that doesn’t necessarily mean the image has to be transformed — an image can remain exactly the same and satisfy fair use if the picture is framed in a way that sends a message. In other words, its “use” is transformed. “For example, a Nancy Reagan picture on the poster would send a parodic message,” he says. “This one is a closer call.”

[Click to continue reading The Best Fair-Use Controversy Ever? – Law Blog – WSJ]

Via Disarranging Mine1

Fist Bumps

  1. well, via Marie’s twitter feed, actually, but twitter is down at the moment []

A.P. Cracks Down on Unpaid Use of Articles on Web

Will be curious as to how this shakes out.

Taking a new hard line that news articles should not turn up on search engines and Web sites without permission, The Associated Press said Thursday that it would add software to each article that shows what limits apply to the rights to use it, and that notifies The A.P. about how the article is used.

Tom Curley, The A.P.’s president and chief executive, said the company’s position was that even minimal use of a news article online required a licensing agreement with the news organization that produced it. In an interview, he specifically cited references that include a headline and a link to an article, a standard practice of search engines like Google, Bing and Yahoo, news aggregators and blogs.

[Click to continue reading A.P. Cracks Down on Unpaid Use of Articles on Web – NYTimes.com]

Alternative Google

Websites like Google are going to be in for a bit of a dustup

Search engines and news aggregators contend that their brief article citations fall under the legal principle of fair use. Executives at some news organizations have said they are reluctant to test the Internet boundaries of fair use, for fear that the courts would rule against them.

News organizations already have the ability to prevent their work from turning up in search engines — but doing so would shrink their Web audience, and with it, their advertising revenues. What The A.P. seeks is not that articles should appear less often in search results, but that such use would become a new source of revenue.

Right, there is a simple addition that webmasters can add to their site that tells Google’s automated indexing software to “go away”:

The robot exclusion standard, also known as the Robots Exclusion Protocol or robots.txt protocol, is a convention to prevent cooperating web spiders and other web robots from accessing all or part of a website which is otherwise publicly viewable. Robots are often used by search engines to categorize and archive web sites, or by webmasters to proofread source code. The standard is unrelated to, but can be used in conjunction with, sitemaps, a robot inclusion standard for websites.

[Click to continue reading Robots exclusion standard – Wikipedia, the free encyclopedia]

Not a Good Sign

If A.P. did that, they would lose search engine generated traffic, but that isn’t really what A.P. wants. A.P. wants traffic, and to be paid for the traffic. I doubt it will happen as seamlessly they want, but we’ll soon see. Newspaper executives also don’t like blogs much:

Executives at newspapers and other traditional news organizations have long complained about how some sites make money from their work, putting ads on pages with excerpts from articles and links to the sources of the articles.

but I don’t know if that particular genie could ever be crammed back into its bottle; the bottom of the bottle is missing, and digital content flows wherever it can, instantly.

and this is puzzling:

Each article — and, in the future, each picture and video — would go out with what The A.P. called a digital “wrapper,” data invisible to the ordinary consumer that is intended, among other things, to maximize its ranking in Internet searches. The software would also send signals back to The A.P., letting it track use of the article across the Web.

If someone cuts and pastes an A.P. article from some other site, how is this magic technological bullet going to still be attached? Either there is more to the process than the A.P. admits, or else they are really deluded1.2

  1. not that it matters, but John Gruber, always an astute observer of these sorts of matters, agrees with me []
  2. corrected the URL, oopsie []