Legal Easel

A little verse about “work made for hire”:

I passed by his garden, and marked, with one eye,
How the Owl and the Panther were sharing a pie:
The Panther took pie-crust, and gravy, and meat,
While the Owl had the dish as its share of the treat.
When the pie was all finished, the Owl, as a boon,
Was kindly permitted to pocket the spoon;
While the Panther received knife and fork with a growl,
And concluded the banquet by eating the owl.

While it long antedates modern “work made for hire” contracts, this excerpt from Lewis Carroll’s “Alice in Wonderland” expresses their perils.

Too few artists understand the definition of “work made for hire”. The common phrase doesn’t mean that an artist has been hired simply to complete a project for a client. It’s a legal term of art that ensures a one-sided deal with the artist transferring authorship to the client—and in the process, losing all meaningful rights to it.

As an artist, your creation of a work—your authorship—is the source of all the benefits that potentially flow from the copyright law. If you retain authorship, you can endlessly draw off new licensing opportunities. Even if you transfer all rights to a single client, the law says that retaining authorship of your work means you, or your heirs, can entirely recapture those rights after 35 years.

But if you hand over authorship to someone else by signing a work-made-for-hire agreement, those rights are gone forever. Worse, you may even find yourself stealing your own original creation. If one of your later works too closely resembles the one you transferred, it may infringe the rights of that client.

In a work-for-hire agreement, your client is Lewis Carroll’s panther, taking pie-crust, and gravy, and meat, and you, the owl, are left with nothing but the empty dish.

There’s more bad news for that creative bird. Work-for-hire transfers usually have the artist giving the client a warranty that the work won’t violate anyone else’s copyright. So, despite owning the artist’s authorship, the client doesn’t assume any of the associated risks. Those remain on the artist’s shoulders. That’s how the panther-client concludes the banquet by dining on the owl-artist.

You have to eat, too. Never sign a work-for-hire agreement with any cat.

In an effort to discourage knock-offs of designer clothing, U.S. Senator Chuck Schumer (D-NY) introduced legislation in August that would provide fashion designers with limited intellectual property protection. Schumer’s view is that with the legal support offered by the Innovative Design Protection and Piracy Prevention Act,  the fashion industry’s revenue and jobs would stay safely in New York.

Despite the fact that counterfeiting products of any type is already illegal—those guys on Canal Street hawking $25 Louis Vuitton bags have always had to pack up and run when they sight a cop—the proposed legislation is unnecessary and even harmful.

Copyright protects original expression, but does not protect useful objects. For example, if you create an original sculpture, it is copyrightable; if you drill a hole through that sculpture and wire it to make a lamp, the lamp is not copyrightable. And while some of the freakish get-ups worn by the models on the Fashion Week runways may strain the definition of “useful object,” they are indeed articles of clothing and therefore fall within the category of useful objects.

Schumer’s legislation further complicates matters by limiting its protection only to those designs designated “extremely unique and extraordinary,” which must feature distinguishable “non-trivial and non-utilitarian variation” from previous similar articles of clothing. Details such as fabric patterns or colors cannot figure into the mix, and a litigant would have to prove that the offending design is “substantially identical” to his or her own.  Under those conditions, Tim Gunn is going to have be our next Supreme Court appointee.

Why this new standard should be injected into copyright law is in question as well. “Uniqueness” is a term used in patent law that has never been applied to determine eligibility for copyright. Originality is what earns you a copyright, and it has to nothing to do with producing a groundbreaking design. Originality merely means you did not copy it from anyone else. Compelling copyright to bear a burden it never has before, at a time when intellectual property rights are under fresh attacks daily, will erode the concept of copyright even more dramatically.

It is not clear why the Senator, along with the Council of Fashion Designers of America and American Apparel and Footwear Association, who worked with him on the legislation, is so convinced clothing designers need this protection now, when they never did before. The fashion industry has survived—and thrived—for decades in New York City without such protection.

The legislation is being touted as balancing the need to protect innovation in the fashion industry with keeping clothing “affordable.” But there is no reason to believe that the proposed intellectual property rights will reduce the prices of the designs they protect. If anything, those reaping the benefits of this superfluous arm of IP law are likely to be the wealthiest and most successful designers, who are the only ones likely to be able to take advantage of the suggested new restrictions on such copying.

But there would be others who would feel a negative effect if the legislation passes: the city’s countless other creative professionals, who rely on the law as it exists to safeguard their work. They don’t need their protections, or the process of proving infringement, made more difficult by needless tinkering with the standards of copyright protection.

The Graphic Artists Guild has filed a defamation suit against several people associated with the Illustrators Partnership of America (IPA).

One would think that illustrators would support the Guild in its effort to quash false or misleading statements by other would-be industry spokesmen.  Nobody who has ever had dealings with the legal process can think such a decision was lightly undertaken; lawsuits are expensive and unpleasant at the best of times–and the Guild has a well-earned reputation for lengthy deliberation before taking action. Who would not want to ensure the unquestioned veracity of those who claim to speak for them?

But one would be wrong. The IPA quickly produced a website containing a plaintive press release and an accompanying petition, which it is encouraging artists to sign to persuade the Guild to drop its suit.  Surprisingly, this petition has actually obtained signatures.

Had it been possible to resolve this dispute without a lawsuit, the Guild would surely have chosen that route.  That the Guild would nonetheless take such a drastic step should be a signal to illustrators–including those who have signed the petition–that something may be very much amiss with some of the industry’s would-be spokesmen.  Is defamation really forgivable when it is done by the Right People?

Illustrators approached to sign this petition should recognize that demanding the Guild drop the suit without knowledge of the evidence is, in effect, demanding that the defendants be given the right to lie without being challenged–whether the defendants actually have lied or not.

Whether the Guild can prove its allegations remains to be seen.

Life can be a bee-otch for film companies when they don’t secure the rights to copyrighted material. Read about the suit against Dreamworks SKG and Paramount Pictures, Inc. in the New York Post.

A bill being considered by the Egyptian parliament would copyright the pyramids, scarabs, and other antiquities. Aside from being at odds with the concepts of authorship and public domain, it appears that the Egyptians are unfamiliar with the concept of “Pharaoh use.” 

It appears that the new RIAA suit is, in fact, over illegal downloading, not over recording off legally-purchased CDs.  But the RIAA may be trying to push the envelope a little.

The Recording Industry Association of America (RIAA) was much vilified for its suits a while back against random file-sharers who were distributing copyrighted music. Now it appears that the RIAA is proceeding against people who have copied legally-purchased CDs onto their own computers.

The question is, how did the RIAA find these people?  Were they, in fact, engaging in file-sharing–or is there a code on the CDs in question which tipped the RIAA off?  Something is not being fully reported here.