~ Archive for Copyright ~

Lawyers discuss whether Machinima is Fair Use

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(cross-posted on Playaslife.com)

I attended a panel at Play Machinima Law, a Stanford conference on machinima law, where the main discussion was trying to figure out if machinima was fair use, and if it was, to what extent would be considered “fair.” A lot of the discussions focused on the end-user license agreements and how game producers could set boundaries on how game users utilize the content within the game.

In case you don’t know what machinima is, it is an animated film that uses 3D virtual worlds that already exist– such as games or Second Life. For instance, World of WarCraft, The Sims, Halo, CounterStrike, etc. have been used to create machinima. (Machinima.com is one of the best sites for compiled machinima.) These virtual worlds are used for not only their background/scenery but also the characters.

When game makers created games, they had no idea that their games would be used as an engines to create 3D animated movies. However, now that people are using games as filmmaking tools, they are beginning to think whether 1) that violates copyrights of the gamemaker and 2) if so, how they should create rules. Game makers have the advantage of controlling user activity because gamers have to agree to end-user license agreements (although how many people actually read them in detail is disputed).

Game companies aren’t opposed to machinima. To some extent, they are flattered and excited that their products are being used for creative productions. However, at the end of the day, although the end user license agreements are different depending on the platform, most games inevitably create boundaries. On most games, machinima makers are not allowed to create work for commercial purposes. Of course, at this point, lawyers are also arguing what exactly a “commercial purpose” is.

This is a problem for people who want to make money from their machinima. Also, although submission for film festivals is currently viewed as a noncommercial purpose falling under fair use, one could always argue that the use of the machinima by a director as a promotional tool for future filmmaking deals could be viewed as commercial.

Naturally, the problem becomes more complicated when the machinima maker uses copyrighted music. A lot of amateur machinima (stuff that teenagers post on Youtube) are like music videos with pop songs mashed with video footage from the game. Although music was viewed as a separate legal issue from the perspective of the lawyers (because the copyright holder would be the record industry instead of the game industry), it is still an important legal factor for the machinima makers.

Of all the game representatives that were present, The Sims seemed to be the most open to machinima—especially because it is including an easy-to-use video capturing tool in its upcoming Sims 3. But even in Sims, if there are product placements or other trademark items, machinima becomes a problem. For instance, if your character is wearing a T-shirt that was actually a product placement, would it be okay to portray that T-shirt in the machinima? Those are the types of questions game company lawyers are trying to answer.

Second Life, unfortunately, was not represented at the panel (perhaps because it is not considered a game) but lawyers seemed to be terrified about how copyright would work in Second Life. “Second Life Is worse than real life. You can film in New York without worrying that fashion of someone walking by or the texture of pavement is owned by someone, but not in Second Life, since Linden Lab doesn’t even have authority over the rights of the content that users create,” said Fred von Lohmann of the Electronic Frontier Foundation.

In the U.S., copyright was created to “promote the progress of science and useful arts.” If games had such strong copyright laws in the first place, would machinima ever have been developed at all? And how will companies control users’ behavior with games that are global? Perhaps the best thing is to think of games as the real world, and let people express their creativity without having Big Brother watching over their shoulder.

Does Hope poster infringe copyright?

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(cross-posted on private blog)

Shepard Fairey, artist of the famed red white and blue portrait of Barack Obama for the poster “Hope” is fighting back for his rights. His artwork is based on an AP photo, and AP wanted credit. I don’t know whether they are upset about not being credited in the first place, or because Fairey has profited from the artwork. A photographer myself, I can understand where AP is coming from, but clearly, Fairey’s poster is derived work, not a tweak of the original.

From the LA Times blog (which BTW didnt have credits)

From the LA Times blog (which BTW didn’t have credits)

This case is nothing new, but something we really have to start thinking about. It’s very similar to the case of Richard Prince, although Prince’s derivation of the original photos was, in my opinion, less creative than Fairey’s. I mean, becoming famous because you took a picture of someone else’s picture? Come on!

Warhols Nine Jackies, taken by moi at the Met.

Warhol’s Nine Jackies, taken by moi at the Met.

As I mentioned in a previous post, most contemporary artists are basing their artwork on photographs- think of Andy Warhol, Marlene Dumas… Most of their work is based on publicly-available photos, such as press photos, but with services like Flickr, artists have a huge visual pool to get their inspiration from. Now that the “default” of Creative Commons license is attributing the original author, how does one go about when creating art? It’s not like an academic paper where you can put in a footnote. Should artists write on the back of their canvas if the work was derivitave? Art falls into a weird category, because it is commercial, yet different from what we think when we think of commercial use/purpose.

It’s also very difficult when you’re trying to pin down copyrights because inspiration can come from a number of sources. How can you define which sources of inspiration are more important than others? As an amateur painter, I find traces of Gogh, Klee, Klimt, and perhaps thousands of other artists in my paintings. I am also inspired by people- the particular look in someone’s eye, the specific silhouette of someone’s pose, like Dora Maar was to Picasso. Sometimes I know that I am inspired by a particular image. Most of the time, it comes from a subconscious level, unnoticed by me until someone points it out.

I know that AP may be feeling “cheated” or want to be part of whatever money Fairey made from his poster, but I don’t think this an issue where we have to sort out things with the law. Copyright laws were created to promote the arts, not stifle them. I don’t think artists should have to say where they got their inspiration- that takes out the fun of trying to figure it out. I think every piece of art is a derivation from something that exists, the same as there being no such thing as a new idea. It also doesn’t make sense to have to wait 50 years (or whatever the timeframe is) to be able to freely use an image. Some of the best literature is derivative. Could we have Wicked without the Wizard of Oz? How many volumes of great Harry Potter fan fiction must remain in basements until JK Rowling decides to release her iron hand? Art should be kept open and free.

The beautiful thing that separates humans from animals is that we constantly inspire each other and are able to improvise. Why try to deny something that is the essence of our nature?

Inspired by John White Alexander and an ancient Indian architecture relief. I'm exempt from copyright violations only because these images are very old.

Paintings inspired by John White Alexander and an ancient Indian architecture relief. I’m exempt from copyright violations only because these images are very old.

Classical music publishers need to move on to digital

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While the Internet has been successful (perhaps too successful) in making audio files more available on the Web, it is still not used so much to share scores. Sheet music carries a lot of copyright issues, mostly held by publishing companies or- in the case of contemporary music- the composers or the family of composers. I don’t know much about popular music scores (I assume they’re pretty much widely available) but classical music scores are still so difficult to find. Think of the volumes and volumes of music that are out there but difficult to access… how great would it be to have a way to find these scores and use them?

Classical music has always been considered high brow, but that doesn’t mean the accessibility of the music should be high as well. It’s easy to find popular pieces online (like Amazon), but not-so-popular pieces and contemporary pieces can be hard to obtain.

It’s difficult, says Dawn, my classical violinist sister. Finding a piece of music (unless it is a popular piece) can be grueling, and then even when you find it, there are so many complications before you can actually play it. Music libraries are hard to use, because many catalog by type, not under composer (Harvard’s music library catalogs by composer, but it is extremely small). In many cases, the same piece will be all over the library in different sections.

Even music librarians have trouble finding scores. For example, the library may not have all the parts for an orchestra piece; in that case, they must borrow from different lending libraries and sometimes, you can’t buy it or photocopy it, just rent it. Private score-owners can be more picky about lending the music– sometimes requesting crazy conditions for using the score (like having to play it before sunset in a courtyard).

Of course, if you’re a professional musician, it’s easier to find scores. For instance, you would know that reliable sheet music for composers like Debussy and Ravel are all from one publisher, so you know what publisher you’re looking for. With Beethoven, for example, there are certain “versions” that are more accurate than others. Sometimes, the best thing is to go to the music store and look at their (old) catalogs to see the list of pieces and the different versions. The best resource is the music library at academic institutes, which is difficult to use once you’ve graduated. Some cities like New York have a public music library (the Performing Arts Public Library), but most cities don’t. Also, if you want some music that is out of print, who knows how you’ll be able to find it?

That’s not to say that the entire industry is behind. Most recently, I was told that Baron Reiter made an online store (which I couldn’t find but will post the link as soon as I get a hold of it), which was a huge step for the music publishing industry. Thankfully, many libraries like the William & Gayle Cook Music Library and Harvard’s Loeb Library are digitizing printed music, but search tools are still very primitive and the digitized collection is teeny tiny.

How great would it be if someone could make a comprehensive score database like Google is doing with Google Books? It could point you to where the music is, be searchable by title, composer, instrument, and have Pandora’s music algorithm thing where it can point you to “similar” music. How better would it be if one could find a PDF and just download it instead of waiting a trillion years for some European publisher to ship the score? (I’d be willing to pay, of course) How cool would it be if there could be a Kindle-like device for music, so you don’t have to carry around a bunch of paper? Musicians could prop up the thin e-score book on their stands and turn pages by tapping their foot on a remote control pad and be able to scribble notes on it. The size could also be blown up for people who have trouble seeing.

Laziness, DRM and Freebies

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It’s no surprise that the cable industry is growing despite the availability of allegedly “free” content available on the Web. People want content, but they are also lazy, and sometimes enjoy the being submissive to programming. (Why are we trying to get people to make difficult decisions and choices, when all they want to do is shut their mind and NOT think?) It’s wonderful and scary that my tastes can be categorized so that on channels like Pandora.com I can listen to the type of music I want with only a few “bad apples.”

That’s why I don’t understand why people are so opposed to DRM. I’m not saying that every product should be protected, but why isn’t it fair that people who develop advanced technology be asking a few bucks for the services that they offer? Obviously, from the number of people using TIVOs and iPods, people are willing to pay. It’s not a matter of whether people can use open technology, but a question of whether they have to. I can grow organic vegetables in my backyard, but I’d rather go to Whole Foods and buy something. It is being lazy and productive at the same time. Not everyone appreciates DIY.

It’s interesting that people talk a lot about DRM regarding music or videos, but not about photography. Though somewhat on a different level, how difficult is Sony, Nikon, and Canon making it for camera uses because their lens are not compatible? However, camera users (or at least those who use DSLRs) complain less about that compatibility because they are willing to accept the different quality and characteristics of the different products. The same goes with PS3 and Xbox360 players. They take a certain pride in knowing that their community is somewhat exclusive, compared to those people who can play free online games through the Internet.

In my ideal world, products would be like what they are in Second Life: the original maker of the product is “watermarked” regardless of the owner and people can choose how they products are distributed. Although some of the high-quality products and programs require money, there is an abundance of freebies and the quality of freebies keeps getting higher and higher. This stimulates the people (who charge for their products) to make even better products for those who are willing to pay. There are always people willing to pay.

Is that unfair? Because some people have money and some people don’t? Do people want a socialist society? In a completely ideal world, no one would have to develop anything and things would just grow on trees to pluck for free- where everyone is equal and has equal access to the same technology. Unfortunately, the Garden of Eden does not work in this society, and free riders can only get a free ride when there are alternatives of people who are paying for development and usage of the technology.

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