SOPA and PIPA ,...it's complicated

Not that anyone one has asked for my opinion but I have been thinking a lot about SOPA and PIPA (not Kate Middleton’s younger sister). This may all be a non issue now that the senate has postponed action on the legislation. However, I have been troubled because I have not been able to sort out my true convictions in the debate.

On the one hand, as an intellectual property lawyer, I wholeheartedly believe that we must do everything we can to stop copyright infringement. On the other hand as a believer in the First Amendment, I see that this proposed legislation is way too broad. As one commentator pointed out, SOPA has the potential to create a giant firewall around the United States. I have friends who work in China and I know from their experiences what true internet censorship looks like. Further, the music industry may slowly be on the path of recovery. I don’t always agree with the writer Bob Lefsetz but I think he has a point when he says that in the future, music is probably going to be delivered by some subscription based service and that what we’re seeing with Spotify and Pandora is that people are willing to pay for music delivery; not everyone is a thief. If there is validity to this point maybe we should move slower in enacting laws that have the potential to be so damaging to the growth of the internet.

I have to temper all of my First Amendment liberalism and idealism with some reality though. I was just thinking about how some political parties can consistently get people to vote against their own interests by refocusing the debate (e.g. “why should job creators have to pay taxes? “). I have to realize that my income has taken a hit over the past decade along with many of my clients because of the decline of the music industry. We can’t blame all of this on illegal downloading (not by a long shot) but piracy has put a lot of people out of work.

So, ultimately, I have to believe that more needs to be done to stop internet piracy. But the question might be this: Is our existing copyright law actually strong enough to be used to fight worldwide copyright infringement? It just might be. I read this morning that the Justice Department was able to shut down Megaupload, a notorious international facilitator of copyright infringement. This was based on using existing copyright law. I wonder if more study should be done into beefing up enforcement of our copyright law instead of passing new potentially hazardous laws.

As I tell my copyright law students, the law is always going to lag behind technology but I happen to believe that our US copyright law is pretty vigorous and capable of protecting intellectual property without necessarily creating new laws.

All Tomorrow's Lawsuits: The Velvet Underground v. Andy Warhol

I am a big admirer of Andy Warhol. I believe his impact on 20th century art and culture is incalculable. I am also a big fan of The Velvet Underground so, of course I was fascinated to discover that the band (actually a partnership comprised solely of Lou Reed and John Cale) had just filed suit against the Andy Warhol Foundation, apparently because the Foundation was seeking to license the famous banana design from the band’s first album to a company that manufactures iPhone and iPad covers.

The complaint in the case is instructive. It reads like a concise history of Warhol and The Velvet Underground. One fascinating tidbit: The band received a $3,000.00 advance from MGM which they split with Warhol. It also spells out a compelling legal challenge. The Velvet Underground assert trademark rights in the banana, although in the 45 years since the fruit first appeared on The Velvet Underground and Nico album , the group never sought to register a federal trademark in the design.

Warhol’s apparent defense is that it has a copyright in the banana. However as The Velvet Underground’s complaint demonstrates fairly conclusively Andy Warhol never asserted a copyright in the work during his lifetime and because it was published in 1967 (eleven years before the implementation of the 1976 Copyright Act) it may well have been injected into the public domain for copyright purposes. The band is seeking a declaratory judgment to this effect.

I was initially skeptical of the band’s trademark claims but the complaint lays out a convincing explication of the band’s use of the mark over the past four decades. Particularly interesting is their 2001 license of the design to Absolut Vodka, a license which was apparently not questioned by Warhol. I also wonder who is licensing all those Velvet Underground t-shirts?

I don’t know that I’ve ever read a case that pitted copyright against trademark in such a unique way. There will most likely be collateral issues. For example, perhaps MGM’s successor may assert some sort of copyright interest in the banana design. Also, what is the status of Warhol’s original artwork? This is certainly going to be an interesting case to watch.

Photographer's Rights

I have written before about the rights of photographers and the difficulty they have in protecting their copyrights. So, it was no surprise to read about a recent lawsuit filed by the heirs of the late rock and roll photographer, Jim Marshall, against a boutique owned by the designer, John Varvatos.

I am a big fan of Jim Marshall’s photography. I have a book of his work in my library. I wish I could re-produce some of his iconic images here (like Johnny Cash shooting the finger at San Quentin Prison), but I can’t because Marshall’s copyrights gave him the exclusive rights to control the public display and distribution of his work.

Varvatos was friend of Marshall’s. In fact, Marshall was supposed to speak at Varvatos’ store the night he died. Varvatos displayed several of Marshall’s photographs in his New York store in tribute to his friend. Apparently, he also made copies and displayed them at all of his stores in the United States, including those located inside of Bloomingdales, now a co-defendant in the suit. Marshall’s estate is seeking statutory damages of up to $150,000.00 for each infringement.

This kind of blatant misuse of someone’s intellectual property seems almost unbelievable in this day and age, but it is a reminder that the intrinsic value of photographer’s work is often severely misunderstood. I had this impressed upon me early in my career by a photographer friend of mine, and I have never forgotten the lesson. Having represented several photographers over the years, I see that it is important to remind the world of their intellectual property rights, especially in this digital age.