Speaker 1: Brought to you by Toyota. Let's go places. Welcome to
Speaker 1: Forward Thinking, either and welcome to Forward Thinking, the podcast
Speaker 1: that looks at the future and says alone and board
Speaker 1: on a thirtieth century night. Will I see you on
Speaker 1: the prices right? I'm Jonathan Strickland, I'm Lauren, and I'm
Speaker 1: Joe McCormick. And how are you guys doing today? I'm
Speaker 1: not too bad? Pretty good? How about you? Oh, I'm
Speaker 1: all right. I'm actually very excited about the episode we're
Speaker 1: doing today because it is an excellent topic that came
Speaker 1: in from a listener. Our listener, Dave sent us an
Speaker 1: email asking us to do an episode on creativity and
Speaker 1: intellectual property and what the future holds for them. Hey,
Speaker 1: and just so you guys know, this is going to
Speaker 1: be a two part episode of Forward Thinking. We originally
Speaker 1: planned on it just being a one part episode, but
Speaker 1: then we got to the end and realized it was
Speaker 1: longer than the longest thing that was ever long. So, uh,
Speaker 1: this is a little bumper to let you know. This
Speaker 1: is part one. Check out part two next time. Lauren,
Speaker 1: would you be kind enough to read Dave's email? Absolutely,
Speaker 1: Dave says, Hey, forward Thinkers, I really appreciated Jonathan's recent
Speaker 1: text Stuff episode exploring creativity and intellectual property issues with
Speaker 1: Mark Hustler of Negative Land, and I'm wondering what all
Speaker 1: three of you might have to say about a related topic.
Speaker 1: Side note, Jonathan, excellent job on that. Oh yeah yeah,
Speaker 1: and Nol as well. That was a really really fun episode. Um,
Speaker 1: so go listen to that. Back to Dave's email, Today's
Speaker 1: artists face many new and seemingly insurmountable challenges to creating
Speaker 1: truly original works after so many decades of postmodernism, mass media,
Speaker 1: and computer assisted Sky's limit creation, where millions of artists
Speaker 1: have already explored the past, present, future, and furthest reaches
Speaker 1: of the imagination. Is every new picture, sound, and story
Speaker 1: now pretty much doomed to resemble something else that came before?
Speaker 1: And how does copyrate law play into this? Are any
Speaker 1: amos contemporary works really so different from lesser known works
Speaker 1: at the same variety or are they just lucky to
Speaker 1: have gone viral for whatever reason? Are the creators and
Speaker 1: or owners of popular media unfairly privileged and protected? Should
Speaker 1: other artists have more leeway to adapt iconic works and
Speaker 1: sharing their overall success? Specifically and most importantly, will there
Speaker 1: ever come a time when I can sell my Harry
Speaker 1: Potter e Studied Universe spinoff on Amazon? Thanks for all
Speaker 1: the great podcasts, Dave. And then in a ps he
Speaker 1: gave us the lyric suggestion which Jonathan used, which like
Speaker 1: an automaton, you followed his command like like someone who
Speaker 1: didn't have to try and figure out the lyric. Thirty
Speaker 1: seconds before we hit record, I used the suggestion. Well,
Speaker 1: thanks Dave for this excellent suggestion. I think this is
Speaker 1: a really great topic. This is actually something that we
Speaker 1: were wanting to talk about anyway, So I I thank
Speaker 1: you for giving us the willpower to do it. Yeah,
Speaker 1: you read our minds and sent us of really terrific emails.
Speaker 1: That thinks, But I guess we should back up and
Speaker 1: before we can talk about the future of creativity, copyright,
Speaker 1: intellectual property, look at what's the reality today and how
Speaker 1: we got to where we are. Yeah, I mean you
Speaker 1: have to have an understanding of what what all these
Speaker 1: terms actually mean, because people throw them around a lot.
Speaker 1: A lot of terms, you know, copyright or trademark or
Speaker 1: patent or fair use. These are terms that that get
Speaker 1: used pretty liberally, and I don't think that everyone necessarily
Speaker 1: has a full understanding of what they actually mean. Right,
Speaker 1: So let's say that I write a book. All right,
Speaker 1: you write a book, and then I trademark that book.
Speaker 1: Now you can't do that? Well, well, no, hold on,
Speaker 1: hold on, I patent that book. You can't do that either. Okay,
Speaker 1: what if I make an invention and I copyright that invention,
Speaker 1: that's I would be more of a patent thing, you know.
Speaker 1: Wh Why don't we just define these things? Okay, and
Speaker 1: let's let us state that this is we're talking about
Speaker 1: the US here, although a lot of international law kind
Speaker 1: of falls in line with what we're talking about. But
Speaker 1: your mileage may vary depending upon what country you happen
Speaker 1: to live in. But uh, some of the decisions that
Speaker 1: have been made in US copyright history have been in
Speaker 1: part to bring it in line with international standards. So
Speaker 1: first we have to define what a copyright is. A
Speaker 1: copyright is a protection for an original work of authorship
Speaker 1: that's set down in a fixed tangible medium, according to
Speaker 1: the United States anyway, So we'll get into more of
Speaker 1: that in a second. It makes sense you have to
Speaker 1: have sort of created this work in some way that
Speaker 1: you could show somebody. It can't be just an idea
Speaker 1: you had, right, You can't. You can't think of an
Speaker 1: idea for example. I remember this happened to me and
Speaker 1: my wife. I chatted with her on we were on
Speaker 1: a subway train and I turned to her and I
Speaker 1: just said, apropos of nothing. I said, um, uh, if
Speaker 1: I die before you, you know I I've filled out
Speaker 1: my my Oregon donation card. If I did before, you,
Speaker 1: please promise me you won't fall in love with whichever
Speaker 1: guy gets my heart. And then she said, that's the creepiest,
Speaker 1: weirdest thing you could say to me right now. And
Speaker 1: then about about a year and a half later, a
Speaker 1: movie came out with essentially that premise, and David d Kovny, am,
Speaker 1: I right. I maybe I don't remember everything that. I
Speaker 1: don't remember who was in the movie, but I do
Speaker 1: remember the premise was that. No, I think you're thinking
Speaker 1: of that Benicio del Toro movie. It may very well be.
Speaker 1: All I know is that the premise was woman in
Speaker 1: manner in love, one of them dies, the other one
Speaker 1: falls in love with the person who receives the heart
Speaker 1: from the original partner. And uh. And so I could
Speaker 1: not claim copyright on that. I didn't set that idea down.
Speaker 1: I didn't write it down in any sort of fixed
Speaker 1: tangible medium. I simply that I made a joke to
Speaker 1: my wife. But of course then I joked that someone
Speaker 1: on the train must have written that movie that they
Speaker 1: stole my brilliant idea, which obviously it was me just
Speaker 1: being silly. But if I had fixed that down in
Speaker 1: a tan will medium, then that work would be protected
Speaker 1: under copyright, assuming in fact that it is an original work.
Speaker 1: That's the That's another important distinction. So, but also, you
Speaker 1: can't just copyright anything that's made of language. You can't
Speaker 1: copyright like a word or a name or something, right,
Speaker 1: it has to be more significant than that. It can't
Speaker 1: be a title, you know. You can't copyright a character name. Yeah,
Speaker 1: you can copyright a poem or a short story or
Speaker 1: a novel or a play or anything along those lines.
Speaker 1: Piece of software, a piece of software you can copyright.
Speaker 1: And this copyright, by the way, exists the moment you
Speaker 1: set it down in a fixed tangible medium. It doesn't
Speaker 1: have to be that currently exists. Yeah. Now if it
Speaker 1: is registered, that's going to make it easier for you.
Speaker 1: Should you ever have to pursue a claim of infringement
Speaker 1: that someone else has infringed your copyright. That registration will
Speaker 1: make it much easier because you can refer to an
Speaker 1: official document showing that you registered the with the government.
Speaker 1: They have acknowledged that you are the author of that piece,
Speaker 1: and therefore that gives you an advantage in any sort
Speaker 1: of courtroom situation. If I were to write something down
Speaker 1: not register it, Joe reads it, I haven't published it
Speaker 1: in any way, haven't It's it's still there. Technically it's
Speaker 1: under copyright. But if Joe goes out types out an
Speaker 1: exact copy of what I've done and then registers it
Speaker 1: to the government, yeah, the government assumes that you, Joe,
Speaker 1: are the original author and that I am out of luck.
Speaker 1: So that's copyright. But let's hear about more of my
Speaker 1: nefarious schemes. So like the trademark. Well, let's say I
Speaker 1: want to open a food truck business, and I want
Speaker 1: I want to sell Hamburgers out of a food truck.
Speaker 1: And let's just say, because I just really happen to
Speaker 1: like Scottish culture, I call my food truck McDonald's, after
Speaker 1: the McDonald clan of Scotland. Old Yeah, and I side
Speaker 1: that it would be really cool to have a red
Speaker 1: background with some like yellow arches on the truck because
Speaker 1: that makes people hungry for hamburgers. So what you're what
Speaker 1: you are suggesting, unfortunately, would be a trademark infringement. Trademarks
Speaker 1: are words, phrases, symbols, or designs that distinguish the source
Speaker 1: of goods from one party from all other parties. And
Speaker 1: it's essentially to say, when you see this particular symbol,
Speaker 1: you know that the goods or services you are are
Speaker 1: purchasing come from this one particular source and no other.
Speaker 1: And therefore, if you were to try and copy that
Speaker 1: in any way, it would be as if you are
Speaker 1: put portraying yourself as that other entity, which is wrong.
Speaker 1: You can't do that. I mean, you could do that,
Speaker 1: but you're gonna get sued like crazy. It's kind of
Speaker 1: like the business equivalent of making a fake I D Yeah, yeah, yeah,
Speaker 1: pretty much is. And uh, technically there there's actually a trademark,
Speaker 1: and then there's a service mark. Service mark is really
Speaker 1: for a companies that provide services, not physical goods, but
Speaker 1: we tend to use the term trademark for both because
Speaker 1: it's the more common just the more common term, but
Speaker 1: at any rate that's trademark. So we've got copyright and
Speaker 1: trademark sorted right. So copyright is any any work that's
Speaker 1: been put down in a tangible medium that, by the way,
Speaker 1: doesn't have to just be written. Working also includes music.
Speaker 1: I didn't mention that, but arks, and yes as well,
Speaker 1: anything that is that tangible thing. You can have that
Speaker 1: as a copyright. The trademark is more of a business
Speaker 1: sort of thing that's associated with a particular purveyor of
Speaker 1: goods or services or both. But then we've got the
Speaker 1: third one, the one that you also mentioned as a
Speaker 1: possibility if you had created an invention of some sort.
Speaker 1: The protection for inventions is a patent. So patents are
Speaker 1: kind of a limited protection. It gives you a certain
Speaker 1: period of time during which your idea of an invention
Speaker 1: is protected, but it's publicly filed, so anyone can go
Speaker 1: and see what how your invention, at least from a
Speaker 1: very high level works patents. By the way, if you've
Speaker 1: never read one, try one. They are interesting. Okay, I
Speaker 1: really enjoy pat They can often be very obduse and
Speaker 1: difficult to understand. They're great if you like sequences of
Speaker 1: numbers and letters within parentheses, yes, and diagrams that are
Speaker 1: not necessarily helpful. Right and for those versed in the
Speaker 1: art or or some similar phrasing, you will you will
Speaker 1: come across that a lot as well. But patents are
Speaker 1: very useful. They in return for filing this public declaration
Speaker 1: of how your your invention works, the government provides protection
Speaker 1: for your inventions. So should someone else try and make
Speaker 1: essentially a similar invention that does what your invention does
Speaker 1: using a very similar methodology, you can pursue a patent
Speaker 1: infringement claim against them, right right. For for example, I
Speaker 1: think Michael jack And patented the specific stage shoe that
Speaker 1: he used to do that leaning trick in Smooth Criminals. Um, yeah, yeah,
Speaker 1: And it was a It was a shoe that had
Speaker 1: a little device inside of it that would hitch into
Speaker 1: a specialized hitch in the stage and allow him to
Speaker 1: brace against that to do that. Let'll tell you how
Speaker 1: many tomes of broke my nose trying to recreate that
Speaker 1: particular move, not realizing I needed special shoes. On the
Speaker 1: other end of things, I believe that w D forty
Speaker 1: has never patented their formula because they don't want anyone
Speaker 1: to know what's in it. Yeah, you don't have you
Speaker 1: have to have to patch your stuff. If you don't
Speaker 1: patent your invention and someone reverse engineers it, then you
Speaker 1: don't have that protection from the US government or whatever
Speaker 1: government you happen to, you know, belong to be part of,
Speaker 1: oversee you, etcetera. Uh, then that's that's a different issue altogether.
Speaker 1: But on the other hand, once that that that protection
Speaker 1: period is over, then it's fair game. Any comp editor
Speaker 1: can come in and create an invention using that same design.
Speaker 1: Can you patent something that doesn't work? Yes, it's supposed
Speaker 1: to work. It's supposed to work. But here's the thing
Speaker 1: is that if you're in the patent office and you
Speaker 1: receive patents, it's not like you can go out and
Speaker 1: build everything that someone has created. So you could just
Speaker 1: sit there all day filing patents on designs for things
Speaker 1: that might not work at all. Why don't you do
Speaker 1: a search for patents for perpetual motion machines if you
Speaker 1: want examples of stuff that does not work, and you
Speaker 1: can sometimes claim like like partial responsibility for someone else's
Speaker 1: patent if you have a patent for similar It gets
Speaker 1: very tricky. It does and there are also other elements
Speaker 1: that you have to consider, like depending upon the government,
Speaker 1: they define patents in very specific ways. For example, you
Speaker 1: can't patent something that's a natural occurrence, right, You can't
Speaker 1: patent the sunrise, something along those lines exactly. So, uh,
Speaker 1: there are definitely limitations built in so people don't try
Speaker 1: to take advantage of the system. But some times we
Speaker 1: have to write those afterward after someone has taken advantage
Speaker 1: of the system. Yeah, okay, Well, let's get a quick
Speaker 1: history on where copyright comes from, because obviously we did
Speaker 1: not have this in ye old ancient times. This is true, Well,
Speaker 1: we had him in semi yield ancient times. The printing
Speaker 1: press actually pushed copyright into being um first in the
Speaker 1: mid fourteen hundreds in Italy, when the Venetian Senate began
Speaker 1: granting printing licenses, essentially like monopolies on certain works to
Speaker 1: particular printers and authors. Over in England, after a few
Speaker 1: similar licenses were granted, Henry the Eighth started a proud
Speaker 1: tradition of royal decrees that gave the government power over
Speaker 1: what was printed and who printed it. Big surprise from Hank,
Speaker 1: you know right right. The Church wasn't enough for him
Speaker 1: he had to have all the printed words to so
Speaker 1: much censorship. Yes, and before this, obviously it was not
Speaker 1: a big concern because if you wanted to copy of work,
Speaker 1: you pretty much first needed to go to a monastery. Yeah, monks, yes,
Speaker 1: and yeah, because you probably couldn't write. If you could, yeah,
Speaker 1: you were probably a monk, and so was. It probably
Speaker 1: took you a few years to copy out a book.
Speaker 1: Total monkey business. Oh anyway, So for over a hundred
Speaker 1: years in England that that privilege of of printing went
Speaker 1: to a company called the Stationers Company. And uh, that
Speaker 1: was up until these laws got struck down during some
Speaker 1: age of enlightenment kind of ideals that were going around
Speaker 1: the country at the time. That was a whole lot
Speaker 1: of like information wants to be free kind of stuff.
Speaker 1: Sound familiar to anyone who's paying attention today, Yeah, yeah,
Speaker 1: but in a British accent obviously. Um and uh, Stationers Company,
Speaker 1: if you can imagine this, was faced with a sudden
Speaker 1: influx of competition and not too excited about it. So
Speaker 1: they petitioned Parliament a whole bunch of times in the
Speaker 1: next few years, um to to try to impose new
Speaker 1: printing regulations, and the one that uck was their attempt
Speaker 1: to profit by pushing authors to the front lines of
Speaker 1: their fight, and that one was the Statute of Anne
Speaker 1: of An uh so called because it was passed during
Speaker 1: Queen Anne's reign. Yes, yes, uh so. In seventeen ten,
Speaker 1: the British Parliament signed into law the act that protected
Speaker 1: the owners of original works for fourteen years. So yeah,
Speaker 1: Actually at the time, at the time, some people were saying,
Speaker 1: that's really long. That's a long time. Fourteen years. You
Speaker 1: mean I can't I can't take advantage of someone else's
Speaker 1: work until fourteen years after it was set down. I
Speaker 1: guess to be fair, people didn't really live past their
Speaker 1: sixties at that time. You can't understand why we were laughing.
Speaker 1: You will in a bit. So after that the work
Speaker 1: would pass into what we call the public domain, which
Speaker 1: is when you can have free use of that that
Speaker 1: original work. Uh So. Others would actually see their works
Speaker 1: become public domain within their own lifetimes, often not always obviously,
Speaker 1: if they published lay in their lives, they might not
Speaker 1: live to see that, but they would also have the
Speaker 1: opportunity to make money off of that freely for fourteen years.
Speaker 1: With the protection of the government should anyone come in
Speaker 1: and try to undercut them by selling copies, and whatever
Speaker 1: printing press they were using also had protection by the government,
Speaker 1: which made the stationers happy. Maybe not as happy as
Speaker 1: they could have been, um, but happier. And and we
Speaker 1: mentioned all of this history because first of all, I
Speaker 1: think it's it's just fascinating that, um that the that
Speaker 1: the profit of a particular company was in play and
Speaker 1: copyright law this early, from the very beginning. And um,
Speaker 1: and be that that that statute of ann directly influenced
Speaker 1: the law that was created here in the United States.
Speaker 1: That's correct. And in the United States, it's part of
Speaker 1: the US Constitution. It's an Article one, section eight, clause eight,
Speaker 1: which gives the government the power to quote promote the
Speaker 1: progress of science and useful arts by securing for limited
Speaker 1: times to authors and inventors the exclusive to their respective
Speaker 1: writings and discoveries end quote. So kind of patents and
Speaker 1: copyrights being that's that's the groundwork being laid for the
Speaker 1: United States to establish its own offices to oversee that
Speaker 1: sort of stuff. Um. Now, in Congress pass the Copyright
Speaker 1: Act of it would have been Yeah, it would have
Speaker 1: been odd to do a different year at that point,
Speaker 1: which granted copyright for fourteen years just like the Statute
Speaker 1: of ann and allowed for a fourteen year renewal option
Speaker 1: should the author of the work still be alive or
Speaker 1: the owner of the work still be alive. Yeah, so
Speaker 1: corporate interests aside. Looking at the language in the U.
Speaker 1: S Constitution kind of gives us an idea of the
Speaker 1: thinking behind copyright law, which is that it's there to
Speaker 1: incentivize good creative work. Right. If the thinking goes like this, Uh,
Speaker 1: if an author or creator of any type feels that
Speaker 1: he or she is not going to be able to
Speaker 1: profit from their work, then why would they ever go
Speaker 1: into it? Why would a poor in the effort, the talent,
Speaker 1: the possibly the money in creating this there was never
Speaker 1: going to be any return. Speaking as an artist, I
Speaker 1: think that that still happens a lot anyway. But anyway, Yeah,
Speaker 1: Actually I wouldn't put it in exactly those terms because
Speaker 1: I think a lot of times artists and and people
Speaker 1: who are pursuing creative works one way or another that
Speaker 1: enrich our culture would still want to pursue those works
Speaker 1: even if they weren't going to make a lot of
Speaker 1: money off of them. But they need to be able
Speaker 1: to make something in order to devote time that would
Speaker 1: otherwise have to be spent working a job to stay alive.
Speaker 1: And from the government's perspective, the the motivation for creating
Speaker 1: art can't be assumed any way. They can only protect
Speaker 1: it in this way, right the only protected by saying
Speaker 1: we'll make sure that if you register the stuff, we
Speaker 1: will totally have your backs. If someone else steals it,
Speaker 1: we got you. Yeah, yeah, you can go after them
Speaker 1: and you can cite this and then that will be
Speaker 1: your basis for your claim. Obviously, the government can't go
Speaker 1: out and figure out all the actual internal motivations for
Speaker 1: someone to engage in creating art. But um, the other
Speaker 1: thing that it creates an incentive for with this fourteen
Speaker 1: years and potential fourteen more for renewal. By the way,
Speaker 1: a lot of copyright holders didn't bother with renewing their
Speaker 1: copyright once it expired. The thought was that it also
Speaker 1: could encourage these creators to continue creating because the amount
Speaker 1: of time they could they could expect to earn money
Speaker 1: off of any given creation was limited. They couldn't, you know,
Speaker 1: they couldn't hope to strike oil or strike gold or
Speaker 1: however you want to think about it and create that peace.
Speaker 1: That gets so much a claim that that right. And
Speaker 1: then from a cultural perspective, it means that we as
Speaker 1: as people who consume this art and however we might
Speaker 1: do so, would continue to benefit from the artist's talent
Speaker 1: and creativity. So there's there's kind of a balance there.
Speaker 1: There's a public good and there's also a protection for
Speaker 1: the the author. So it's a balance that has been
Speaker 1: very delicately managed and sometimes not so delicately managed because
Speaker 1: as it turns out, there have been a lot of
Speaker 1: changes to that original copyright. How long years? Okay, so
Speaker 1: eight one there was a change in the law where
Speaker 1: it was extended to twenty eight years of protection with
Speaker 1: then the option for a fourteen year renewal or extension,
Speaker 1: and then in nineteen o nine that was extended to
Speaker 1: twenty eight years of protection with a renewal of a
Speaker 1: further twenty eight years. So, uh, you know, it's we're
Speaker 1: seeing it start to creep up. That lasted for a
Speaker 1: really long time. That's essentially fifty six years of protection. Uh. Yeah.
Speaker 1: There was a particular um iconic character protected by copyright
Speaker 1: whose copyright would have expired in nineteen eighty three had
Speaker 1: this stayed true, that character is Mickey Mouse. I was
Speaker 1: about to say, are we about to talk about the
Speaker 1: mouse we are specifically to be to be really specific,
Speaker 1: the steamboat Willie version of Mickey Mouse, all right, that
Speaker 1: would have entered public domain in three had nothing changed.
Speaker 1: So there was some pressure, let's say, from various entities,
Speaker 1: Walt Disney Company not being leased among them, to extend
Speaker 1: copyright protection beyond this because now we have corporations that
Speaker 1: can own intellectual property. So we're no longer talking like
Speaker 1: when we're talking about owners of intellectual property. It doesn't
Speaker 1: have to be the author the you know, the outher
Speaker 1: can sign over or sell intellectual property. You know it
Speaker 1: can it can descend to one of their children, or
Speaker 1: they can sell it to a corporation exactly. And corporation
Speaker 1: is unlike people don't have a lifespan, like they can die,
Speaker 1: but they don't die of old age. No, they die
Speaker 1: like empires. Yeah, so there's no there's no point where
Speaker 1: a corporation is just going to wither away due to
Speaker 1: being too old. So they no, they don't. They can
Speaker 1: get creaky, but it's a different thing. So because of that,
Speaker 1: the corporations want to be able to ensure being able
Speaker 1: to earn revenue off of their assets, which means they're
Speaker 1: going to try to protect them. So in nineteen seventy
Speaker 1: six we saw the greatest extension of the term of
Speaker 1: copyright protection, which was the life of the author plus
Speaker 1: fifty years on top of it, so you would never
Speaker 1: be able to use the original work of an author
Speaker 1: within that author's lifetime plus another fifty years. Works for
Speaker 1: Higher had seventy five years of protection completely works for Higher.
Speaker 1: That's where a corporation or other entity hires an an
Speaker 1: artist or author to create something but belongs to that entity,
Speaker 1: the author gives up ownership of it. The Revision of
Speaker 1: US Copyright Act also established copyright protection for unpublished works
Speaker 1: and codified the concept of fair use, but will cover
Speaker 1: fair use in a little bit so comes around. The
Speaker 1: US became a BURN Convention b E r N E
Speaker 1: Convention signatory, which created formal copyright relationships with twenty four
Speaker 1: countries and eliminate the requirement of copyright notice for copyright protection,
Speaker 1: meaning that's where any work in a fixed tangible medium
Speaker 1: is under copyright. Once you have written a poem on
Speaker 1: a napkin, it belongs to you. Yes. Uh So, in nine,
Speaker 1: Congress amends the Copyright Act to automatically renew the copyright
Speaker 1: of any work they've been published before ninety eight, so
Speaker 1: that extra renewal ends up being tacked on. Some renewal
Speaker 1: is no longer a thing at that point is just assumed.
Speaker 1: And then in the sunny Bono Copyright Term Extension Act
Speaker 1: has passed, which increase is the length of protection for
Speaker 1: the life of the author plus seventy years. I think
Speaker 1: it's nine years for works that are essentially works for
Speaker 1: higher owned by another entity. Uh So that extends their
Speaker 1: protection automatically. And uh and and and of course there
Speaker 1: are a whole lot of smaller bills and and court
Speaker 1: cases that have laid down more specific things about copyright
Speaker 1: of for example, about a sampling pieces of music and
Speaker 1: a new song, or the public's ability to rent audio books,
Speaker 1: or um whether displaying a cashed website is an infringement
Speaker 1: of copyright. This is this is where things get kind
Speaker 1: of crazy. It's sort of like when we talk about
Speaker 1: the Internet. It adds a whole new level of complexity
Speaker 1: to a lot of these these different concepts. Right because
Speaker 1: in order for the Internet to work, certain things have
Speaker 1: to happen, and it's there are things that, in taken
Speaker 1: from a very black and white view, might violate something
Speaker 1: like copyright or they're also these are where you start
Speaker 1: seeing those weird terms of service where a company will
Speaker 1: say we want to have ownership of all the stuff
Speaker 1: you create. But really it's it's not necessarily the company
Speaker 1: wants to own it. It's that the company needs to
Speaker 1: have your permission to actually show it that kind of stuff.
Speaker 1: It gets complicated, and then we're gonna make it more
Speaker 1: complicated by bringing in the concept of fair use. Yes,
Speaker 1: all right, to do it. Complication go. Fair use is
Speaker 1: a pain in the butt, alright, so it shouldn't be
Speaker 1: fair use. Fair use is something that absolutely needs to
Speaker 1: exist because otherwise we would be unable to comment on
Speaker 1: anything that was created by someone else. Right. So, let's
Speaker 1: say you want to create a video that's a film review.
Speaker 1: You want to say, hey, the newest Star Wars movie,
Speaker 1: I think it was terrible and here are the four
Speaker 1: reasons why, and so you want to show some scenes
Speaker 1: from it. Can you do that? That's an excellent question
Speaker 1: and the answer is maybe sometimes occasionally, like should the
Speaker 1: creator of the film be able to sue you for
Speaker 1: using their work in a commentary on their work. Well,
Speaker 1: whether they should be able to or not as immaterial.
Speaker 1: You can sue anyone for anything. I mean, under the
Speaker 1: spirit of fair use. Oh, under the spirit of fair use,
Speaker 1: then that should not happen, assuming that you are, in fact, uh,
Speaker 1: following the basic tenants of fair use. So let's let's
Speaker 1: talk about what fair use is. This is when, under
Speaker 1: specific circumstances, you're allowed to use an original work that's
Speaker 1: under copyright that's held by somebody else. So you are
Speaker 1: not the author or the owner of that intellectual property,
Speaker 1: but you wish to make use of some of that
Speaker 1: for some reason. There are certain conditions where you are
Speaker 1: allowed to do that. It's completely legitimate. But it's fair
Speaker 1: use is a defense, right, it's a It's a defense
Speaker 1: you use when a copyright holder claims that you have
Speaker 1: infringed upon their copyright and then you say no. The
Speaker 1: instance being referred to is a case of right. So
Speaker 1: here's the issue. This is something that's just cited on
Speaker 1: a case by case basis in the court. So you
Speaker 1: can't just say, hey, I followed the rules here and
Speaker 1: therefore I'm I'm good to go because there are all
Speaker 1: these other cases that did the same thing. The lawyer
Speaker 1: could argue that, but it shanna go to a court.
Speaker 1: So there there was well, it's going to go to
Speaker 1: a court. If you stand up for it, you could
Speaker 1: settle out of court. Yeah, a lot of these cases
Speaker 1: do settle out of court because court cases are expensive,
Speaker 1: and settling often will just mean that you either stop
Speaker 1: doing whatever it was you're doing, take it down, stop whatever,
Speaker 1: or hand over any revenue generated from said thing to
Speaker 1: the owner of the original copyright, which is there's there's
Speaker 1: a whole discussion that we could have about that, but
Speaker 1: it was interesting. There was a court case in two
Speaker 1: thousand fourteen in which one case, the lawyer the judge
Speaker 1: actually approved of an arithmetic approach to uh TO to
Speaker 1: figuring out whether or not h a an instance was
Speaker 1: fair use. That's saying that there are four criteria that
Speaker 1: I'm going to go over in a second to determine
Speaker 1: fair use, and if three of the four criteria were met,
Speaker 1: at least three of the four, it was fair use,
Speaker 1: and that would be that. However, it then went to
Speaker 1: a superior court that reversed and remanded that decision, saying
Speaker 1: that fair use can't be broken down in a logical
Speaker 1: way like that, because why would we let that happen.
Speaker 1: We don't want your logic, We want more court cases. Yeah,
Speaker 1: so it has to be decided on a case by
Speaker 1: case basis to be fair. It is a very individual
Speaker 1: kind of issues. Yeah, it can be certainly. Yeah, well,
Speaker 1: I mean we should hear what the criteria are. But
Speaker 1: of course the effect of saying it has to be
Speaker 1: decided on a case by case basis, at least seems
Speaker 1: to me is that that just allows whoever has legal
Speaker 1: resources to bully the other person into doing whatever they want.
Speaker 1: It means it's so vague, so vaguely defined, even with
Speaker 1: this criteria, that you can never be certain that what
Speaker 1: you are doing is going to fall all under fair
Speaker 1: use unless you get sued, go to the court, defend
Speaker 1: yourself and win. That's the only way you can come
Speaker 1: out of it. Saying here's an example of fair use.
Speaker 1: Is if the court decides in your favor, So you
Speaker 1: can't you can't look at it and say, well, because
Speaker 1: it falls it very clearly meets these criteria, It totally works.
Speaker 1: It still is going to be something decided in a
Speaker 1: court or you're gonna settle out of court. So here
Speaker 1: the four criteria. The first is whatever the what is
Speaker 1: the purpose and character of the use of that original work.
Speaker 1: So the purpose of the use is for something like
Speaker 1: scholarship or for a commentary criticism, that kind of thing
Speaker 1: like your film criticism example, this could mean that it
Speaker 1: it could be fair use under this particular criterion. Uh,
Speaker 1: parody falls under this, but not satire. And the difference,
Speaker 1: according to US law is that parody is something that
Speaker 1: ends up commenting upon the original work itself, where a
Speaker 1: satire is a more broad commentary on some other topic
Speaker 1: and is only using the original work in order to
Speaker 1: get attention, and so they say that it's less transformative.
Speaker 1: So if you're talking about a song like It's kind
Speaker 1: of interesting because weird al it's always referred to as
Speaker 1: parody songs. A lot of songs aren't parody. Well, permission
Speaker 1: from there being only one exception, and that is one
Speaker 1: that's contested where where the story is he yes, he
Speaker 1: did get permission, and then the other side says, no,
Speaker 1: he did not. But otherwise yes, that's exactly true. He
Speaker 1: does get the permission. But if it were parody, he
Speaker 1: wouldn't necessarily need that that permission and it could still
Speaker 1: fall under fair use. Um. This is the part where
Speaker 1: we talk about being transformative as well, right right, yeah,
Speaker 1: And that's the kind of thing where um, why like
Speaker 1: SNL or Mad Magazine or something like that can get
Speaker 1: away with portraying characters from other shows because it's a
Speaker 1: parody exactly, it's a commentary on culture right now. The
Speaker 1: second one is the nature of the copyrighted work, So
Speaker 1: fair use tends to apply more readily to cases where
Speaker 1: you're using information from a nonfiction source. So if you
Speaker 1: are citing, like it could even be citing a review
Speaker 1: or citing um uh, a news item or a speech,
Speaker 1: something along those lines, as opposed to taking elements from
Speaker 1: a source of fiction, whether that's a poem, short story, play,
Speaker 1: whatever it may be. This makes sense to me because
Speaker 1: if you were to be too strict about what people
Speaker 1: could copy from nonfiction sources, that could in cases seem
Speaker 1: to lead to people being able to restrict the use
Speaker 1: of facts or like restrict the use of pieces of
Speaker 1: true knowledge, sure, which I mean obviously that's untenable, Like
Speaker 1: if you are the author of a study that finds
Speaker 1: out some important new fact about the universe. Obviously, it
Speaker 1: wouldn't be good to have people, you know, plagiarizing your
Speaker 1: work wholesale. But people need to be able to refer
Speaker 1: to your find dame. Well, yeah, that's the whole basis
Speaker 1: of science, right, because if you're not able to do that,
Speaker 1: then suddenly you can't. You can't end up testing claims
Speaker 1: because be fear of being sued for copyright infringement. I
Speaker 1: mean it would be it would be broken, would be
Speaker 1: a broken system. Yeah, you can't copyright the results of
Speaker 1: your experiment, right. And then ultimately there's also uh an
Speaker 1: even more focused version of this for unpublished works, because
Speaker 1: there's a general belief that the right of the first
Speaker 1: public appearance of any work should go to the creator
Speaker 1: or owner of that work. And therefore, if you were
Speaker 1: to try and make fair use of something that had
Speaker 1: not yet been published, that would be a harder argument
Speaker 1: for you to make in a court. They would they
Speaker 1: would say, well, this hadn't even been the general public
Speaker 1: had not had a chance to see the original work yet,
Speaker 1: so that doesn't that's stealing. Yeah, Okay, what about the
Speaker 1: difference between if I want to write about my favorite novel.
Speaker 1: I'm want to write a blog post about tech War,
Speaker 1: my favorite novel um and I want to quote from
Speaker 1: it to show why the pros is so vivid and beautiful.
Speaker 1: Does it make a difference if I quote a paragraph
Speaker 1: versus a single sentence versus the entire book, Yes it does.
Speaker 1: Substantiality does does make a difference. As the third criterion,
Speaker 1: Uh so this the the amount and substantiality of the
Speaker 1: portion used in relation to the copyright work as a
Speaker 1: whole is something that is under consideration. So the rule
Speaker 1: of thumb is the less you use, the better off
Speaker 1: you are. Right, the more you use, the more you're
Speaker 1: treading on stealing and less on fair use. Also, it's
Speaker 1: not just the amount, but is it the heart of
Speaker 1: the piece. So in other words, if you end up
Speaker 1: publishing something that is the most important aspect of that work,
Speaker 1: whatever it may be, then it's harder for you to
Speaker 1: defend that as fair use than if it were some
Speaker 1: just random part of the not random, because that would
Speaker 1: make no sense. But some other less notable element of
Speaker 1: that work. Sure, sure, And that's under the argument that
Speaker 1: you are less likely to infringe upon an author's possible
Speaker 1: profits from their work if it's if it's a relatively
Speaker 1: non significant part, then if it is a very significant part,
Speaker 1: and that'll that'll fall under the fourth one as well.
Speaker 1: But the other interesting thing to note here is that
Speaker 1: a lot of people seem to think that there's some
Speaker 1: sort of hard and fast rule about how much, for example,
Speaker 1: how much music you can play before it's an infringement,
Speaker 1: before it's an infringement. Like yeah, like, oh, if it's
Speaker 1: just fifteen seconds or five seconds, you're fine. No, there's no.
Speaker 1: It probably should be, but but there's not. Yeah, there's not. Well,
Speaker 1: also then people would argue, like, well, which fifteen seconds
Speaker 1: or how long is the song? If it's a remote song,
Speaker 1: fifteen seconds is a significant part of that piece. If
Speaker 1: it's meat loaf, you wouldn't even notice, Um, but no,
Speaker 1: it's it's it's not the case you couldn't even tell
Speaker 1: what song it was from fifteen seconds. You wouldn't even
Speaker 1: know what album it came from, like it's one of
Speaker 1: the Beat of the Hell albums, and just not sure which, Um, yeah,
Speaker 1: it's it's. There is no time limit that you know,
Speaker 1: there's not a safety zone. Yeah. Yeah. In in a
Speaker 1: one case that was settled in two thousand four, a
Speaker 1: two second sample of a song was deemed an infringement. Yeah,
Speaker 1: that's ridiculous. I agree. Yeah, this this is a This
Speaker 1: is actually a huge problem or was a huge problem
Speaker 1: at a certain point in the hip hop industry. Oh yeah, yeah,
Speaker 1: and we'll we'll talk more about how artists are kind
Speaker 1: of shifting this away a little bit. Like the fourth
Speaker 1: and final criterion for a fair use is the effect
Speaker 1: of the use upon the potential market for or value
Speaker 1: of the copyrighted works. So if your work, your transformative work,
Speaker 1: were to have some impact upon the sales of the
Speaker 1: original work, like a negative impact, like maybe someone wrote
Speaker 1: a cool song and you took that cool song and
Speaker 1: made it even cooler song that's way more awesome, you
Speaker 1: might not be able to argue fair use because you
Speaker 1: may have potentially affected the revenue the original authors could
Speaker 1: have expected from his or her piece. But yeah, this
Speaker 1: also goes back to that idea of you don't share
Speaker 1: the heart of the work, right, like you were saying, Lauren,
Speaker 1: if if I were to give away the important part
Speaker 1: of a book, like I don't know, if I were
Speaker 1: to be one of those jerks who explained who kills
Speaker 1: Dumbledore in the Harry Potter series before anyone's even had
Speaker 1: chance to read it. And I've done so in a
Speaker 1: in a way that is using a lot of the
Speaker 1: original work. I don't know that I could argue fair
Speaker 1: use on that. Sure, if you just post a one
Speaker 1: sentence spoiler on the Internet, that's not infringement. You're just
Speaker 1: a goat hugger. But if you but if you published
Speaker 1: perhaps the entire chapter that that thing happened in, that
Speaker 1: that would be infringement exactly. Yeah, So comment on something
Speaker 1: is not copyright infringement. Right, If I comment on something,
Speaker 1: if I say the Last Wars movie was terrible, I'm
Speaker 1: not making use of any of the copyrighted work. I'm
Speaker 1: just referring to it. That's clearly not a case of
Speaker 1: copyright infringement. Sure, I mean, I mean the problem that
Speaker 1: you get into is when you start mucking around to
Speaker 1: the terry territory of what construes um, what construes stealing,
Speaker 1: and what construes commentary. Because art, as part of art,
Speaker 1: it comments on itself and on other stuff around it. Yeah,
Speaker 1: in fact, that's a great, great transition. Art does not
Speaker 1: exist in a vacuum, right, Well, y'all mentioned controversies about
Speaker 1: sampling in the hip hop industry a while back, and
Speaker 1: that's definitely a case where you can make the claim
Speaker 1: that great pieces of cultural value of art entertainment have
Speaker 1: needed the ability to sample sound that might be protected
Speaker 1: by copyright. But they're they're doing it in a way
Speaker 1: that's not just exploiting the original creator. They're doing it
Speaker 1: in a way that makes a new work of art
Speaker 1: is transformative. Yeah. Absolutely, yeah, And this is you know,
Speaker 1: this is a point. And if you did listen to
Speaker 1: that Negative Land episode, you'll hear um Our Costler make
Speaker 1: this point to that that commentary the world we live
Speaker 1: in we're surrounded by this stuff. We're surrounded by art,
Speaker 1: we're surrounded by commercials and and messages that are consumerist messages.
Speaker 1: And therefore, any kind of art that's to comment on
Speaker 1: what life is will at least some of it will
Speaker 1: end up incorporating that kind of stuff into the art.
Speaker 1: I mean, that's how art works. So there has to
Speaker 1: be some way of doing that. Yeah. Yeah, And and
Speaker 1: there are I mean there there are a bunch of
Speaker 1: interesting examples of court cases that have settled things like this, Like,
Speaker 1: for example, um I believe Mattel tried to sue the
Speaker 1: band Aqua when they put out the song Barbie World
Speaker 1: Barbie Girl, not the title of you Can Brush My Hair, No,
Speaker 1: I know the all the lyrics, okay, but yeah yeah,
Speaker 1: Mattell said, Hey, that's our property. You can't. You can't
Speaker 1: just trot her out like that, And the courts essentially said, uh,
Speaker 1: yeah they can, because she's a cultural icon, She's a
Speaker 1: cultural phenomenon. So so creating a transformative work based on
Speaker 1: your characters absolutely loud, right. And this is this is
Speaker 1: similar too. I mean I've actually know plenty of stories
Speaker 1: of people who have put up YouTube videos that have
Speaker 1: incorporated clips from stuff order to comment on it, to
Speaker 1: actually do it in a news commentary way, then got
Speaker 1: taken down. Uh, and then they had they actually went
Speaker 1: through the fight. In fact, Tom Merritt has gone through
Speaker 1: this where tom Merritt does various technology shows and he
Speaker 1: did an episode where he did a commentary on a video.
Speaker 1: The owners of the video ordered to take down the
Speaker 1: entire episode that tom had produced, which is like a
Speaker 1: forty five minute hour long news show. Uh, and he
Speaker 1: had to fight for quite some time before it was
Speaker 1: reintroduced to YouTube and of course by then, I mean
Speaker 1: it's a daily news show, so by then it was
Speaker 1: like two weeks later or something. Yeah, And and that's
Speaker 1: a very specific YouTube situation because because once you start
Speaker 1: talking about an independent, uh privately owned website, then that's
Speaker 1: a different issue than the US government. It's like, it's
Speaker 1: not like the company in question, the owners of the
Speaker 1: original video and question, we're going through the government in
Speaker 1: order to get this result. Right, they didn't sue. They
Speaker 1: simply took advantage of YouTube liberal taking stuff down policy,
Speaker 1: which and again, if you are a company that provides
Speaker 1: a platform, then obviously you're going to air on the
Speaker 1: side of the people who have the most money. That's
Speaker 1: just how that works, all right. And here's where we're
Speaker 1: going to wrap up for this particular conversation, because, as
Speaker 1: it turns out, we had a lot more to say
Speaker 1: about copyright, creative comments, and various use cases, and it
Speaker 1: was just too much, like Joe said the beginning of
Speaker 1: this episode, to make it one. So we are going
Speaker 1: to leave off here and rejoin on the next episode.
Speaker 1: To conclude our conversation. We have to thank Dave, because
Speaker 1: holy cow, we got a lot of material to talk
Speaker 1: about from that one email. It turns out we like
Speaker 1: talking about aren't here, yeah, so join us for the
Speaker 1: next one, so that for the conclusion of this conversation
Speaker 1: where we will we will talk about the rest of
Speaker 1: all the things that came up in that particular episode.
Speaker 1: And remember you can get in touch with us to
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