I’ve been too busy with work to update the comic these past couple months, but I used the downtime to further rethink the look of the comic. Anyway, today Wilkie learns that ineluctable truth of practice—that no matter what kind of law you’d like to practice, you’re always working for the guys with the money.
Back from PAX Prime with photos! I was only able to make it on Monday, so I don’t have a lot of pictures. Still a fun time. Very different from what I’m used to—the massive industry displays really turn the Washington State Convention Center into something like an alien landscape. It’s tiring, but it’s fun, and I got to meet cool people like Christine Love and Jake Kaufman. Maybe I’ll see you there next year.
As usual, pictures are on Flickr.
And the Judicial Quote of the Day goes to…
Judge Wade McCree of Michigan! You might know him from his removal from office for hooking up with the complaining witness in a felony trial he was conducting. Here’s an example of his finely honed courtship skills in action:
Girl, every man in the damn courtroom was peeping your upscale game … C’mon, U’r talking about the “docket from hell,” filled w/tatted up, overweight, half-ass English speaking, gap tooth skank hoes … and then you walk in.
And the runner-up is… Judge McCree, again.
Oh yeah, I text from the bench. After last nite, its all I can do not 2 jerk off ‘under’ the bench:-). U know U have a magnificent pair of legs!
Or maybe it’s Judge McCree, responding to allegations that he sent his own bailiff a half-naked picture of himself:
Hot dog, yep that’s me. I’ve got no shame in my game. I ain’t talking to nobody else’s wife. You can almost get that here and now. I’ve sent that out to other women. There’s nothing nude about it. I’m in no more clothes than I’ll be at the Y this afternoon when I swim my mile.
Actually, I changed my mind. The quote of the day goes to the Judicial Tenure Commission master who recommended McCree’s removal:
In final summary there is Shame in the McCree game: shame to the good name of McCree and shame brought upon the judiciary of the State of Michigan.
You know what, just read the Sixth Circuit opinion in the civil suit against Judge McCree, the whole thing is too good. It also contains some interesting discussion of judicial immunity.
Of Streamers and Storage: ABC v. Aereo, Inc.
In a previous blog post, I wrote about the Supreme Court case ABC v. Aereo, Inc.—a case about whether rebroadcasting TV signals over an Internet stream violates copyright. Back then, I discussed two key questions in this case: what is a “performance,” and who is the “public”? In a 6-3 decision today, ABC v. Aereo, Inc., No. 13-461 (Jun. 25, 2014) (slip opinion), the Court answered both questions in a way that may be very problematic for tech companies moving forward. Read on to find out more.
Just to refresh your memory, Aereo is a service that captures TV broadcasts using one of many tiny antennas, saves those broadcasts as subscriber-specific files, and then streams those files to the end user’s computer, all at the control and direction of the subscriber. The question is whether Aereo “publicly performed” those TV shows in contravention of 17 U.S.C. § 106(4). 17 U.S.C. § 101 tells us that you “perform” a work when you “show its images in any sequence or  make the sounds accompanying it audible.” If that definition sounds far-reaching to you, that’s the point:
Under this new language, both the broadcaster and the viewer of a television program “perform,” because they both show the program’s images and make audible the program’s sounds. See H.R. Rep., at 63 (“[A] broadcasting network is performing when it transmits [a singer’s performance of a song] … and any individual is performing whenever he or she … communicates the performance by turning on a receiving set”).
Aereo, slip op. at *7 (emphasis in original). As the opinion explains at some length, this language is purposely broad because Congress wrote it specifically to overrule Supreme Court caselaw that said it’s not a performance if you’re just repeating an existing signal.* Aereo, slip op. at *4-8. So under the statute, you are “performing” my work when you reblog this post. You are “performing” when you play some CDs at your food truck; you are “performing” when you show your friends a funny video on YouTube; you are “performing” when you sing your significant other a love song (or Paul Simon’s “50 Ways To Leave Your Lover,” for that matter); you are “performing” when you print out every frame of a movie and stick them in a big binder; and here, Aereo “performed” something. That much, the whole Court agrees with. See Aereo, slip op. at *8-9, slip op. at 5-6 (Scalia, J., dissenting).**
But what exactly did Aereo “perform” here, and to whom? Last time, I talked about the difference between “performing” a work and “performing” a single copy of a work. I noted that under existing caselaw, you can’t show a single VHS copy of a movie to any Tom, Dick, and Harry who walks in your door, because that’s performing to the “public.” Columbia Pictures, Inc. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984). But showing a single electronic copy of a show to a single person is fine—meaning that showing many copies of the same show to many individuals is okay. Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (hereinafter Cablevision). In other words, the plural of “private performance” is not “public performance.” Until today’s decision, anyway.
Today’s opinion does not expressly overrule Cablevision,*** but it does gut Cablevision of most of its precedential value. In the majority’s view, you are “publicly performing” when you “communicate the same contemporaneously perceptible images and sounds” to multiple members of the public, “regardless of the number of discrete communications” you use to do it. Aereo, slip op. at *14. That is, it doesn’t matter whether your audience is sharing the same copy of the copyrighted work, or whether each member of the audience gets their own individualized copy: such “technological differences” are invisible to viewers, they have no bearing on “Aereo’s commercial objectives,” and they make no difference “[i]n terms of the [Copyright] Act’s purposes.” Aereo, slip op. at *12. If it walks like a duck, swims like a duck, and quacks like a duck, it must be a duck—or a public performance, for that matter. If you think that test is vague and unpredictable, well, you’re in good company. See generally Aereo, slip op. (Scalia, J., dissenting).
That just leaves one question—who’s a member of the “public”? The Copyright Act defines the “public” with reference to “a substantial number of persons outside of a normal circle of a family and its social acquaintances.” 17 U.S.C. § 101. This leads the Court to conclude that “’the public’ consists of a large group of people outside of a family and friends.” Aereo, slip op. at *14-15. Reasonable enough, if not terribly specific.
But that’s not all there is to it. In my last post, I noted how Justice Breyer was concerned about potentially sweeping up storage services like Dropbox in the Court’s decision. So now that Breyer has the majority, how does he keep the collateral damage down? By playing with the definition of the word “public.” Seizing on Paul Clement’s car dealer/valet parking analogy from oral argument****, Justice Breyer tells us that whether people are members of “the public” “depends upon their relationship to the underlying work.” Aereo, slip op. at *15. So if you’re just sending users copies of works that they already own, there’s no “public performance,” no matter how many copies you send. For example, when you buy a song from Amazon MP3, it gets saved to the Amazon Cloud and you can download it, right?***** Under the Court’s rule, Amazon does not “publicly perform” the song even if 50,000 total strangers purchase and download the same song from Amazon Cloud. When all you do is give people what’s already theirs, you’re not dealing with the “public,” and so Dropbox and the like aren’t affected by today’s decision. Right?
Right—if you assume that Dropbox users only use it to store things they own. That is a naïve assumption indeed, though perhaps not surprising. The point is, nothing in the Court’s rule seems to help Dropbox in the situation where, say, people are keeping their pirated BD rips of Air Bud 2 on Dropbox. When Dropbox users retrieve their pirated copies of Air Bud 2 from the cloud, Dropbox is “communicat[ing] the same contemporaneously perceptible images and sounds to a large number of people who are unrelated and unknown to each other,” and furthermore, who don’t own Air Bud 2. Aereo, slip op. at *14. There you have your public performance, and now Dropbox is in trouble.
Realistically, would such a situation ever end up in a courtroom? Perhaps not. But it’s just one example of the uncertainty that the Aereo court created today. The Court tries to play off today’s decision as a narrow holding that will leave room for technological innovation. But when you’re a small and vulnerable innovator, uncertainty itself can be a legal bar to you. The only thing today’s decision tells us for sure is that troubled times lie ahead for copyright law.
* Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968), abrogated by statute, Copyright Act of 1976; Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U.S. 394 (1974), abrogated by statute, Copyright Act of 1976.
** Scalia’s well-reasoned dissent (god, talk about your phrases I never thought I’d write) also notes that Aereo cannot have “performed” because it was the user, not Aereo, that chose what data to transmit—in other words, you only “perform” if you push the data, not if the user pulls it from your systems. Aereo, slip op. at *6-7 (Scalia, J., dissenting). I don’t discuss this argument here because Scalia articulates it quite well on his own.
*** Indeed, Justice Breyer throws in some token assurances that their opinion doesn’t reach remote-storage DVR services, such as Cablevision. Aereo, slip op. at *16-17. These assurances are not convincing for reasons I explain later in this post.
**** “And I do think that in all sorts of places, including the real world, there’s a fundamental difference between a service that allows—that provides new content to all sorts of end-users, essentially any paying stranger, and a service that provides a locker, a storage service. And I think if you want a real world analogy off the Internet, I think it’s the basic decision—the difference between a car dealer and a valet parking service.” Transcript of Oral Argument at 12-13, ABC v. Aereo, No. 13-461.
***** I include this explanation for the benefit of those of you who have never legally acquired a song.
Cute Lawyers #56: The Competition is Over
Sorry this coming is coming to you so late! I’ve been very busy with work… and I’m experimenting with bringing the comic into full color. I’m still trying to reach a balance between making the comic look pretty and updating more than bi-monthly, so stay tuned, as the look may continue to change!
My Holmes Is Your Holmes: Klinger v. Conan Doyle Estate Ltd.
Sherlock Holmes, the pipe-munching, coke-shooting detective, is by any account a part of the Western fictional lexicon, known and beloved by all (and especially by certain… other Tumblrs.) But is he part of the public domain? Yes, said the Seventh Circuit in Klinger v. Conan Doyle Estate, Ltd., No. 14-1128 (Jun. 16, 2014) (slip opinion). Well, part of him, anyway. But how can that be, you say? A character is either in the public domain or he isn’t, right? Read on to find out.
To understand this case, we must first consider what it means for a character to be copyrighted in the first place. The Copyright Act tells us that copyright protects “works of authorship.” 17 U.S.C. § 102(a) (emphasis added). Nowhere does that subsection mention characters. Does that mean characters are never copyrightable? Of course not. Generally,* a character is copyrightable so long as he is “delineate[d] distinctively” and contains “unique elements of expression.” Walt Disney Prod. v. Air Pirates, 581 F.2d 751, 755 (9th Cir. 1978) (citing Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930)).
You can also have a free-standing copyright in a character, apart from the work he appears in. Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1175 (9th Cir. 2003); Toho Co., Ltd. v. William Morrow & Co., Inc., 33 F.Supp.2d 1206, 1216 (C.D.Cal. 1998). That sounds like a big deal, but it may not be. In every case I’ve seen involving a free-standing copyright in a character, the rightsholder also held the copyrights to all the works that the character appeared in. See, e.g. Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., Inc., 900 F.Supp. 1287, 1293 (C.D. Cal. 1995); New Line Cinema Corp. v. Bertlesman Music Group, 693 F.Supp. 1517, 1521 n. 5 (S.D.N.Y. 1988); Warner Bros. Inc. v. ABC, 720 F.2d 231, 235 (2d Cir. 1983).
That gets us to the key question in Klinger—what happens if you don’t own all the copyrights? Couldn’t an infringer say, well, I didn’t really use your character, I used your character as he appeared in this work that you don’t own? Indeed, that’s exactly what happened in MGM. There, MGM accused Honda of ripping off James Bond with this commercial. Honda said no no, we didn’t use the Bond from the films you owned, we used the Bond from Casino Royale (the old one) and Never Say Never Again, which you don’t have the copyrights in. The court disagreed, holding that Honda had ripped off “James Bond’s character as developed in the sixteen films [under MGM’s copyright.]” MGM, 900 F.Supp. at 1296 (emphasis added). Specifically, Bond and the guy from the commercial were both “young, tuxedo-clad, British-looking men with beautiful women in tow and grotesque villains close at hand; moreover, both men exude uncanny calm under pressure, exhibit a dry sense of humor and wit, and are attracted to, and are attractive to, their female companions.” Id. at 1298.
In Klinger, the opposite happened. Klinger wanted to publish a Sherlock Holmes anthology, but made sure to use only the elements of Sherlock’s character that appeared in those Holmes stories in the public domain. This was easier for Klinger than it was for Honda, because while MGM owned 16 out of 18 Bond films, the Doyle Estate only holds copyrights in 10 out of 60 Sherlock Holmes stories. Slip op. at 1-2. Nevertheless, the Doyle Estate argued that Sherlock Holmes—all of him—should still be under copyright, ostensibly until the last Holmes story passes into the public domain sometime in the 2020s. (To learn why this is, read my earlier post on copyright terms.)
Judge Posner, writing for a unanimous panel of the 7th Circuit, wasn’t buying it. It’s well established that “once the copyright in the first work that contained the character enters the public domain, then it is not copyright infringement for others to copy the character in works that are otherwise original.” Nimmer on Copyright § 2.12 (emphasis added). Yet a character doesn’t become 100% fair game as soon as his debut work goes into the public domain. Rather, you get to keep a copyright in those elements of your character you revealed in stories still under copyright. Silverman v. CBS Inc., 870 F.2d 40, 50 (2d Cir. 1989). Likewise, “[t]he ten Holmes-Watson stories in which copyright persists are derivative from the earlier stories, so only original elements added in the later stories remain protected.” Slip op. at 9 (emphasis added).
To understand why this is, remember that copyright is concerned with expressions and not with abstract ideas. See Baker v. Selden, 101 U.S. 99 (1879). The passages Doyle wrote where Sherlock is just a guy—those have had their time in the sun, and now they’re in the public domain. But the passages Doyle later wrote where Sherlock likes dogs, those parts are new enough that they’re still copyrighted. Slip op. at 12. So if you want to write Sherlock Holmes fanfiction, don’t include a scene where he pets a dog, and you should be good.**
Cases like this and MGM show that the courts are increasingly willing to parse out characters across those works they appear in—to treat fictional characters as bundles of traits that can be divvied up among different rightsholders and, indeed, between a rightsholder and the public domain. This has important ramifications for copyright licensing. ZUN, author of the Touhou Project, has indicated that he is hesitant to license his works internationally because he fears losing control of his characters. To the extent that Reimu as she appears in Perfect Cherry Blossom is legally distinct from Reimu as she appears in Imperishable Night, this concern is overstated. You can license out one work out of your series without losing your grasp on the characters. You can even license out different parts of your series to different people. It is likely that the courts will continue to clarify these principles in the future.
…Incidentally, while the copyright in Puella Magi Madoka Magica will expire in the year 2061, the copyright in Puella Magi Madoka Magica: The Rebellion Story will not expire until the year 2063.*** So for a 2-year period, the Madoka from the TV series will be in the public domain, but the Madoka from the movie will not… in other words—
* The Ninth Circuit has previously held that a character who is “only the chessman in the game of telling the story,” rather than constituting the story in himself, is not protected by copyright. Warner Bros. Pictures v. CBS, 216 F.2d 945, 950 (9th Cir. 1954). This case is not widely followed, though it has never explicitly been overruled. Judge Posner, the author of the opinion this post is about, explicitly said the Warner Bros. decision was wrong in Gaiman v. McFarlane, 360 F.3d 644, 660 (7th Cir. 2004).
** This is not legal advice, I am not your attorney, and you shouldn’t listen to anything I say.
*** This is assuming both works are works for hire. If not, then under Japanese law they are both protected for 50 years following Gen Urobuchi’s death. American law works similarly—normally, the duration of a copyright is tied to the life of the creator, not the date of publication. Notice how this sidesteps issues with parts of a series falling out of copyright at different times, like what happened in this case.
**** I’m not sorry.
Red cabbage! Rich in Vitamin A, rich in Vitamin C, and—most importantly—relatively cheap. Though usually seen in the company of fried fish, the slightly bitter vegetable makes a good base for sweet and sour flavors. So I just threw some stuff I needed to use up in a bowl and called it good. I guess what I’m saying is that you should feel free to experiment and alter this recipe.
SIMPLE RED CABBAGE SLAW
- 1/3 head red cabbage
- 1 medium carrot, peeled, with the root end cut off
- 4 - 8 scallions, with the roots and tops removed
- 1/4 red onion
- 1 cup roughly chopped peanuts (pecans or other nuts work as well)
- 1 cup finely chopped dried apricots (golden raisins or other dried fruits work as well)
- 1/2 cup olive oil
- 1/8 - 1/4 cup balsamic vinegar, to taste (feel free to substitute a wine vinegar you like)
- 1 heaping tablespoon honey, liquefied in the microwave (I like to use raw honey from blackberry flowers)
1. Chop the cabbage into strips about the length of a thumb. An easy way to do this by hand is to cut large slices off the top and sides of the cabbage, then lay those slices flat on a cutting board and chop.
2. Divide the carrot into thin slices. This can be done with a vegetable peeler, or you can cut the carrot into matchsticks. To do this by hand, lay the carrot down on the cutting board and slice into long pieces using diagonal cuts. Gather up the pieces and cut them lengthwise. Repeat a couple times until the carrots reach the desired thinness. Watch your fingers!
3. Chop the scallions and red onion finely. Combine in a bowl with the cabbage, carrot, nuts, and dried fruits.
4. In a separate bowl, combine olive oil and balsamic vinegar and whisk with a fork until syrupy. If the dressing is still too thin, gradually whisk in a little more olive oil until it comes together.
5. Add honey to the dressing and whisk until mixed.
6. Pour dressing over salad, toss well, and chill overnight or until ready to serve. Pair with a wine matching your vinegar, and an anime figurine.