The three federal judges which preside over the Copyright Royalty Board recentlyannounced new rates which will be applied to internet radio and digital webcasting. Here we look at some of the pros and cons of this decision, and what broader implications it may have for artists moving forward.


Guest Post by Kevin Erickson on Future of Music Coalition

Last week, the trio of federal judges who compose the Copyright Royalty Board announced new rates for internet radio and digital webcasting. It was a bit of a mixed bag, and a pretty complicated decision. But for any musician whose work gets played on internet radio, it could affect what you’re earning. Here’s what you need to know.

1.  These rates apply only to sound recordings played on non-interactive webcasts.

These are monies that flow to both performers and sound recording copyright owners. This includes non-interactive digital music service that pays through the use of a statutory license.Labels and performers are paid simultaneously, directly and separately. Artists who own their sound recordings are eligible to collect as the performer and label.

This news won’t impact how songwriters or publishers get paid. The decision only deals withsound recording royalties; composition royalties that flow to songwriters and publishers are calculated and distributed through a different system. (See our handy“Music and how the money flows” chart for details; what we’re talking about today is represented in orange.)

Nor will this decision impact how money flows from satellite radio revenue. Under the current law, satellite services are grandfathered in under a percent of revenue arrangement (this would change under the proposed Fair Play Fair Pay act, which is one reason we support it).

Nor will it impact interactive services like SpotifyYoutubeApple Music, etc. These services don’t pay sound recording royalties through a statutory license but instead rely on direct deals with rightsholders.

2. This is money that gets collected and distributed by SoundExchange.

SoundExchange is a non-profit agency, governed by a board that’s evenly split between artist representatives (including folks like David Byrne) and record label representatives (both indie and major labels). 

Soundexchange distributes these royalties through a very simple formula. After deducting their low administrative costs, 
45% - goes to the featured artist
50% - goes to the sound recording copyright owner  (often a label, sometimes the artist herself)
5%  -  goes to a fund operated by musicians unions AFM and SAG/AFTRA for distribution to backing players, session musicians, and backing vocalists.

Payment to artists through Soundexchange is direct, and can’t be held against recoupable debt to a record label. It’s a good, relatively transparent system and one artists can have confidence in.

By the way, recording artists and independent labels, if you haven’t signed up for Soundexchange, you really should do so! You may have already earned royalties that you don’t know about.  It’s free and easy!

3. This new rate structure holds for 5 years.

Under current law, the Copyright Royalty Board goes through this rate setting process every 5 years. The new rates will apply for the period from 2016-2020. It’s the fourth time we’ve gone through one of these proceedings, so this round of deliberations often gets called “Webcasting IV” or abbreviated “Web IV”; the 2010-2015 iteration was called “WebIII”, etc

4. This is serious money we’re talking about.

Those micropennies really can add up. In all, SoundExchange has distributed over $3 Billion in royalties to artists and labels. $204 million of that came just in the third quarter of 2015.

And it’s not all going to superstars either. Playlists on digital radio formats tend to be more diverse and inclusive of independent voices than commercial FM in the US. That certainly doesn’t mean everyone who gets airplay on digital radio is making big money, but for some, it can be a significant piece of their overall revenue pie.

5. All commercial webcasters are being pulled under one umbrella.

As a result of a piece of legislation called the Webcaster Settlement Act, through 2015, there were a whole bunch of different specialized  licensing tiers for different types of services: commercial webcasters, microcasters, “pureplay” services, broadcasters simulcasting their FM streams, etc. The new rules make things quite a bit simpler starting in 2016. There’s one rate for nonsubscription streams ($0.0017) and one rate for subscription streams ($0.0022).  

Simpler isn’t necessarily better though. In terms of the impacts on artists’ revenue and diversity in the webcasting marketplace, it’s something of a mixed bag. For example:

6.  Pandora will pay artists/rightsholders more per play in 2016. That’s a good thing.

Rates for Pandora’s nonsubscription service used to be calculated under the “pureplay” tier, which meant they paid $0.0014 per performance. As part of the CRB process, judges examined evidence and heard testimony from both Pandora and Soundexchange about what the future rate should be. Pandora argued for a lower rate of $0.0011 and Soundexchange made a case for a higher rate of $0.0025. While the new rate ($0.0017) didn’t climb as high as SoundExchange would have liked, it is a significant and deserved pay hike for artists.

On the other hand, in the past, rates had climbed at a scheduled rate of tenth of a penny per year. Under Web IV, rates will be adjusted for inflation using the consumer price index, meaning they will climb more slowly over time.

For subscription based non-interactive plays (about 15% of their overall business), Pandora had been paying $0.0025. That rate will now go down slightly to $.0023. But as the service has recently acquired interactive streaming service Rdio, its subscription offerings might be moving in a more interactive direction.

7. iHeart Radio will pay artists/rightsholders less per play in 2016. That’s a bad thing.

Big commercial radio companies that also webcast got a serious price break in the new ruling, with rates lowered from $0.0025 to $0.0017. That’s the same rate they paid back in 2011, and now it’s locked in through 2020. What’s especially crazy about this: big radio isn’t required to pay performers a cent for playing their work over AM/FM radio, and they’re still fighting tooth and nail to avoid ever having to do so. In the face of this ongoing injustice, this cut in pay to artists is adding insult to injury.  

8.  Small commercial webcasters may face new challenges.

The previous system offered small commercial webcasters multiple options for how to pay digital performance royalties for sound recordings. Services with annual gross revenue under $1.25 million could either pay the per-performance rate or pay a percentage of revenue/expense (10% of the first $250,000, 12% of anything after that, or 7% of expenses, whichever is higher.) The financial pinch of switching to a per-play payment regimen would be most acutely felt by small webcasters with low revenue/expenses but relatively high listenership. 

Not every small broadcaster saved with the “Small Webcaster” tier however. Those that were in the old “Microcaster” category would be unaffected; they’re still on the hook for a $500 minimum but probably nothing more. Those small webcasters that were already paying at a per-performance rate will find their fees actually go down.

We care about the needs of Small Webcasters because these more modestly scaled operations often focus on helping developing talent and niche genres find audiences while contributing to the overall revenue pool. If it’s harder for new entrants to get off the ground and play music from a broad range of artists, we may end up with a less diverse digital musical landscape; that certainly doesn’t benefit artists in the long run. We’ll be watching closely for developments.

9. Fewer reporting waivers = better data = good news for artists.

In the past, very small commercial broadcasters (hobbyists with relatively low listeners or revenue termed “microcasters”) and many non-commercial webcasters had an option to pay an extra $100 a year to waive their obligation to submit reports of use telling SoundExchange precisely what they were playing. Their share of the royalties collected would instead be distributed using a system of sampling—a common practice among performance rights organizations. In such a system PRO tries to get a representative sample of everything that’s played and uses that as a proxy for unattributable income. The problem with sampling is that it’s easy for some of the smaller/niche acts to get missed.  

Under the new rules, the only webcasters who have the ability waive their reporting requirements are noncommercial stations affiliated with educational institutions. Aruging that data submission requirements were especially challenging to student-run stations that often rely on volunteer labor and novice broadcasters, College Broadcasters Inc, a nonprofit group representing college radio, negotiated this provision into their deal with SoundExchange, which was approved by theCRB. But other non-comm stations and very small commercial webcasters will have to submit more data than they have in the past.

This move towards more complete and comprehensive data is good news for artists, if a potential minor annoyance to some broadcasters. Happily, though, technology in 2015 makes it much easier to generate reports in the correct format. Services like Spinitronmake it easy for DJs or even automated systems to log what is being played and how many listeners are tuning in, while also providing audience development tools, like the ability to generate attractive shareable playlists. Broadcasters should feel good about submitting more complete data, because they’re helping make sure that every artist whose work they play is accurately accounted for, resulting in more artists getting paid accurately.

10.  Remember, all the value comes from music.

It’s been encouraging to see lots of growth in the webcasting sector over the last decade, at a time when some traditional revenue streams have dwindled. But we must keep in mind that none of the growth in this sector would be possible without the musicians and composers whose hard work is at the heart of it all. It’s only fair for them to see a bigger part of the rewards.

And if nothing else, this CRB decision should illustrate how out of whack the whole system is because of corporate radio’s free ride. Until we fix the loophole that allows big broadcasters to play music on FM/AM without paying artists, the marketplace for advertising sales—and thus the entire business for radio and radio-like services—will continue to be artificially deflated. It’s time to fix this loophole once and for all. We’re looking forward to fighting for fair pay for creators in 2016, and we hope you’ll join us.

Copyright is Out of Control

by Alex Tabarrok

I have written about patent and copyright law primarily from the perspective of an economist interested in the institutions and incentives that maximize innovation. As a textbook author, however, I must deal with copyright law in practice. Dealing with copyright law on the ground hasn’t caused me to change my views but it has made me more frustrated. I have also come to appreciate some of the subtler costs of the system. Two cases in point.

A lot of textbooks hire a photo editor to pick generic stock photos, this simplifies things because the bundlers pre-authorize permissions and prices. But we hand picked every photo in our book to illustrate a point which means that our permissions and legal staff often have to find owners and clear permissions on an individual basis. We are grateful that our publisher is willing to do this to produce a quality product but it sometimes leads to absurdities. For example, the publisher doesn’t like to use public domain images. Why not? What could be better than free? The problem is that the bundlers insulate a publisher from lawsuits but when we use a public domain image the publisher is open to lawsuit if a mistake has been made and that makes them fearful.

The general lesson is that strong IP shrinks the public domain not just because it keeps things out of the public domain but also because it makes the public domain appear to be uncertain and dangerous. It’s as if clean, mountain spring water were freely available but people bought from the bottlers instead out of fear of contamination.

Copyright law is one of the forces behind the rise of the mega-bundlers. Mega-bundlers benefit from economies of scale in cataloging IP but there are also economies of scale in dealing with the legal system and insuring against/for lawsuit. It’s probably no accident that two of the largest bundlers, Corbis and Getty, are owned by Bill Gates and (Getty heir), Mark Getty respectively. (FYI, Piketty should have said more about this kind of 21st century rentier in Capital).

Here is another example. To illustrate the point that, contrary to what is often argued, a rich person might get more from another dollar than a poor person we have in Modern Principles a movie still of Scrooge McDuck swimming in money. We think the image speaks for itself but apparently that is a problem. The rights to the photo are–we are told–not the same as the rights to the characters shown within the photo. Thus, even though we have bought and paid for the right to print the photo, to ensure that the use of the characters within the photo falls under fair use we must discuss, comment on and critique the content of the photo in the text. 

The distinction between the photo IP and the what’s in the photo IP is one only a lawyer could appreciate, as is the solution. And I mean that without irony. I am not critiquing our publisher or their lawyers. Bear in mind that this is coming to us from the very highest legal counsel of a multi-billion dollar firm. Thus, I do not doubt that the dangers are real and the legal analysis acute. The problem is copyright law itself.

The episode illustrates more generally how the complexity of copyright law has greatly elevated the power of lawyers. It’s no accident that the permissions director is one of the few people at our publisher whose signature is absolutely necessary before our book, or any book, can be published. 

Record Label Picks Copyright Fight — With The Wrong Guy

by Laura Sydell

An Australian record label may have picked a fight with the wrong guy. The label sent a standard takedown notice threatening to sue after YouTube computers spotted its music in a video.

It turns out that video was posted by one of the most famous copyright attorneys in the world, and Lawrence Lessig is suing back.

Lessig, a Harvard Law School professor, has lectured around the world about how copyright law needs to adapt to the Internet age. In his lecture, he shows examples of people who have used the Internet to "share their culture and remix other people's creations."

Law professor Lawrence Lessig, shown here in 2009, is suing an Australian record label for threatening to sue him over an alleged YouTube copyright violation.

Law professor Lawrence Lessig, shown here in 2009, is suing an Australian record label for threatening to sue him over an alleged YouTube copyright violation.

One of the examples he likes to show is a series of remixes that use the song "Lisztomania" by the French band Phoenix. Someone remixed that song with clips from the iconic '80s movieThe Breakfast Club. The remix went viral and inspired other videos in which people pretended to be Breakfast Club actors dancing to the song.

Copyright Vs. Fair Use

Lessig posted his lecture on YouTube, which uses a technology that scans videos to find copyrighted songs.

Many labels and artists have agreed to let songs stay up in return for a cut of the money that YouTube gets from ads it runs with the videos — but some labels, like Melbourne-based Liberation Music, which owns the rights to "Lisztomania," just want them taken down.

One day, "the computer bots finally got around to noticing that I had used a clip from this song," he says. "Liberation Music then fired off threats of a lawsuit to me if I didn't take it down."

At first, YouTube took it down. But being a copyright attorney, Lessig knew his rights. He was entitled to use these clips in a lecture under a legal doctrine known as fair use.

"If I'm using it for purposes of critique, then I can use if even if I don't have permission of the original copyright owner," he says.

Liberation Music eventually backed down. But Lessig decided to invoke another part of the copyright law, "which basically polices bad-faith lawsuits," he says — threats made fraudulently or without proper basis.

Lessig is suing Liberation Music because he wants labels to stop relying on automated systems to send out takedown notices, he says.

Afraid To Fight Back

Liberation Music did not respond to NPR's numerous requests for comment, but this kind of takedown notice is fairly common, says Corynne McSherry, an attorney with the Electronic Frontier Foundation, a nonprofit digital rights group, who is representing Lessig.

"I get contacted all the time by folks who have had their material taken down," she says. "And often I'll go and I'll take a look at what's taken down, and it's clearly ridiculous."

The problem is that a lot of those people are afraid to fight back. If they lose, they might have to pay up to $150,000 a song, McSherry says. "And for most regular people that's a pretty scary possibility."

It certainly was to Bob Cronin, a DJ living in Atlanta who creates mashups of songs and occasionally posts them online. His mashups mix together clips from different bands — like the Beastie Boys and the Beatles and Jay Z — and sometimes he adds electronic drumbeats.

He says he's "really just trying to make music that's fun and surprising" for people, where they recognize tracks they like.

It was fun until Cronin got a notice — take it down or be sued.

"Basically, I was scared," he says. "When you're a guy like me you have everything to lose, and you really are not going to get a lot back from fighting Warner Bros. or something."

While it's somewhat debatable as to whether Cronin's mashups are protected speech, there isn't much doubt that Lessig's lecture is a fair use.

"What we've got is this computerized system threatening people about content that's on the Web, much of it legally on the Web," Lessig says.

The problem, he says, is the impact: "what we think of as a very significant chilling of completely legitimate and protected speech."

Lessig hopes his suit will set a precedent that will persuade copyright holders to put human beings who know the law back into the equation.

Why Copyright Is Evil

Ben Sommer

Copyright is dying – that is obvious to everyone. What isn’t obvious to everyone, especially in the music industry, is what a glorious and just outcome this is.

International copyright only came into being in 1891 – very recent considering the long history of music and the arts. And it was publishers – not artists – who convinced governments to foist the system on us. Prior to that, during monarchical times “copyright” was permission granted to writers by the king to print what was politically correct. It was government that introduced the entire concept of “idea ownership” – the basis of copyrights and patents – precisely so it could crush the ideas it didn’t like. Copyright has rotten origins.

So Why is it Evil?

We must first understand what property is, since copyright is based on the notion that ideas are property.

Property begins with one’s ownership of one’s body, and extends to all the resources one acquires through

  1. Trade (i.e. buying and selling)
  2. Manual labor (i.e. creation)
  3. Homesteading (aka “squatting” on a resource no one had yet claimed)

This can mean simply the clothes on your back, or a small ranch house in the suburbs on a quarter acre or, like Bill Gates, a 40% share in a $70 billion company. They’re all property.

The one thing all physical property has in common is scarcity. Dirt, houses, livestock animals, software companies – they’re all made up of physical matter that is in limited supply. How limited is relative – obviously a pound of dirt is much less scarce than a huge software company. That’s why their market prices are so different. But there’s a reason that, for example, air and light are free: they are not scarce at all and require no human labor to produce.

Scarcity is not some esoteric concept – it’s at the core of most economic theories. Economists and law philosophers write about it and its role in prices, competition, entrepreneurship and a host of other areas. Scarcity is a basic reality of existence in human society.

Ideas as “Property”

Now consider ideas and artistic works. A CD recording of a performance is obviously a scarce physical commodity – it takes resource and labor to record and manufacture. But that’s not why CDs used to cost $20+ back in the 1990s. They cost that much because of the copyrighted sounds – that is, ideas – imprinted on the discs. This is also why most CDs these days cost around $10 – because copyright is in the latter stages of decay, due to competition from other media. The cost of a CD is falling back toward the actual cost (plus markup) of the scarce, plastic piece of physical property that it is.

But the law still says that the CD contents – the ideas imprinted on it – are copyrighted. This essentially means that the CD is not wholly your property, like a pound of dirt, or a painting, or a company is if you own these things. Copyright puts the CD owner in a bizarre circumstance where the original publisher retains some ownership of your CD even after you’ve paid your $10-20 for it.

But the musical ideas on the CD are not scarce. If I share the ideas with my friends by playing them the CD, the original owner hasn’t lost his own copy of them. I haven’t “stolen” anything from him. Like air and water molecules, the sound waves that make up a musical performance are in such great supply that no one is made poorer if they are replicated ad infinitum.

Therefore, musical ideas in their raw form of pure sound – fail the test of true property. They therefore cannot be “owned”, and sharing them or even re-selling copies of them in different media cannot be considered theft or fraud. It may still be illegal to do so, but that only makes copyright one of the thousands of illegitimate sausage laws that clog the statutes and unjustly limit our liberty. And as we’ve seen in the last 15 years, the only way to sustain copyright enforcement in an era of disruptive technology is to erect a large and oppressive government apparatus.

This is why the institution of copyright is evil – it thwarts true law (property and ownership), and requires jackboot tactics to enforce.

So What’s a Musician To Do?

So if modern copyright is only 121 years old, how on earth did Bach, Beethoven & Brahms survive and thrive without it?

It’s easy to understand – just look around you now.

The music industry today is going back to the future – like Beethoven, artists are now surviving by hustling the old fashioned way: boot-strapping public performances and touring. Or, like Bach, they’re subsidizing their song-writing passion by taking side-jobs at the local church or school. Of course, they’re also getting creative and using today’s amazing technology to implement the business models like Connect-With-Fans+Reason-To-Buy.

Can musicians sit back and collect royalties and a share of the huge monopoly profits of yesteryear? Nope. But, those were the days of the golden handcuffs and the chosen few. The only artists who whine and complain now about those “good old” days are either

  1. Old artists who came up in the old days and are wistful of the time when they only had to record an album every three years to earn 5 times what they earn now, or
  2. Young artists who are too lazy to boot-strap things themselves and wish success was handed to them

But as Seth Godin has proved, these days you have to choose yourself to make your own success.

I encourage musicians to read up more on this topic – all you need to do is google “against copyright” and similar terms to begin the journey to a more common-sense philosophy on this subject that is so close to musicians’ hearts and wallets.

Ben Sommer is a composer and performer making edgy, political prog-rock. His music has been described as an original blend of Frank Zappa, Iron Maiden, XTC & Public Image Limited - with the bitter lyrical worldview of Warren Zevon and Donald Fagen.

Hear his music here, and read his other writings on his blog.

Record Companies could pay the price for continued ‘User’ Mentality

Posted by

Clive Rich

The prospect of US artists winning back copyrights under 1970′s copyright law sets up an interesting negotiation. “State of mind” is always critical in any negotiation. If one side feels that the other has been taking advantage, or adopting a “user” state of mind then it will influence their own attitude, and may prevent the adoption of a constructive “fuser” attitude which helps join both sides together.

For some artists there is potential to regain control of their copyrights after 35 years so long as they apply 2 years in advance, with recordings from 1978 being the first to potentially become eligible.

Classic Artist albums including “Darkness on the Edge of Town” by Springsteen and Billy Joel’s “52nd Street” could become affected, and a number of songwriters have already filed for reversions in relation to their songs (the provision affects publishing too). This includes Bob Dylan and Tom Petty.

Record companies will want to negotiate to keep the rights, but in any negotiation of this kind the state of mind of the participants is critical. This may create a problem for major record companies. The perception of their contractual treatment of artists over the years is that it has been rather heavy-handed, with artists subject to onerous terms in long, opaque contracts that slice and dice their royalties unfairly. Artist deals are subject to huge recoupable reductions and arcane deductions like container charges. The latter – a throwback to the physical world – have continued to apply even in the digital age.

The problem has been exacerbated over the last few years as record companies, subject to an ailing business model, have tried to extend their rights into other areas such as touring and publishing, without guaranteeing any efforts in return. Furthermore, a lack of transparent accounting in relation to digital sales is adding to the perception.

Now this perception may be incorrect in practice in many cases, as there are plenty of record companies who treat their artists fairly and reward them well.  However, the legacy of this perception is likely to influence negotiations over such copyright reversions. Each case will be different, as of course these deals are negotiated individually, but Artists are likely to be wary of agreeing to renewed copyright retentions by labels if they feel that they are dealing with entities which have dealt with them unfairly over the years.

If they feel that Record Companies have in general been acting as “users” then artists will not be bringing a positive “fuser” attitude to the table. This can easily turn the state of mind of both parties into a “loser” approach, where neither expects to win and each therefore concentrates on making sure the other side doesn’t win either.

It will be interesting to see how this turns out as these negotiations unfold and whether the normal adage is borne out that “if you use, you lose”…


Are the federal copyright laws designed to target consumers?

If so, are the penalties that can be levied under them constitutional?

These two questions got a public airing up at the First Circuit in Beantown on Monday in a fascinating case concerning unsanctioned song downloading.

The arguments were part of an appeal taken by Joel Tenenbaum, a Boston University student sued by the music recording industry. At trial, a jury ruled in favor of the Recording Industry Association of America, ordering Tenenbaum to pay $675,000. The district judge later slashed the award by 90 percent, to $67,500, arguing that the jury’s award was “unconstitutionally excessive.”

On Monday, a lawyer for Tenenbaum, a Harvard law student named Jason Harrow, pushed the notion further, arguing that Congress never intended to punish individual consumers when passing the Digital Theft Deterrence Act of 1999. Click here for the Boston Globe story. Click here, here, here and here for earlier LB posts.

“No one thought the statue would apply to consumer users like this,’’ Harrow, 27, told the court.

In July 2009, Tenenbaum admitted to illegally downloading and sharing 30 songs on the Internet.

Lawyers representing the Recording Industry Association of America, including former Solicitor General Paul Clement, argued yesterday that Congress knew what it was doing when it attached stiff fines to the law.

But lawyers for Tenenbaum — Harrow and Harvard professor Charles Nesson — argued yesterday that the federal copyright laws and the Digital Theft Deterrence Act were never meant to target consumers and that, even if they were, such extreme punishment would be unconstitutional. Nesson described Tenenbaum’s knowingly downloading songs to the act of “a willful jaywalker.’’

Tenenbaum, a 27-year-old Providence native and a Boston University doctoral student in physics, has said that he had offered to settle for several thousand dollars, to no avail. He has also said that a $67,500 judgment would force him into bankruptcy. His lawyers now propose a judgment of $21, or 70 cents a song if he had bought them on iTunes.

Only one thing, is impossible for god: to find any sense in any copyright law on the planet.

 - Mark Twain

Can Appropriation Artist Claim Copyright Over Artwork Appropriated From The Same Original?

Here's a fun one found via Boing Boing. It involves a band, named Elsinore, that is about to put out an album and has run into a rather bizarre copyright issue that highlights some of the insanity in today's copyright law. For the cover of the album, they used a painting done in an art class by a friend of the band named Brittany Pyle. You can see it here:

If this looks somewhat familiar to you, it may be because you've seen one of famed artist Roy Lichtenstein's paintings, called

Kiss V

. An image of that painting is here:

Now, just before the album was to be released, the estate of Roy Lichtenstein sent Elsinore a note, claiming that their cover infringed on Lichtenstein's copyright, and suggesting the estate was not at all happy about this. Somewhere along the line, the band went back and spoke to Pyle, the artist who did the painting they were using, and she explained that she had not actually copied the Lichtenstein painting at all, but as part of her art course


appropriation art, she was told to do a piece of appropriation artwork, and rather than appropriate Lichtenstein directly, she chose to appropriate from the same

source material

Lichtenstein had used. Lichtenstein was not particularly forthcoming about his own original sources, but a guy named David Barsalau has apparently spent years scouring old comic books to find the original images which Lichtenstein originally used, and has put them together in a project he's called

"Deconstructing Roy Lichtenstein."

His research turned up the following as the original source:

If you look closely, it quickly becomes clear that Pyle did, in fact, use the


as her source. There are a few key points in the image that makes this clear. For example, in the original and in Pyle's there's a line directly above the man's eyebrow. That's not in the Lichtenstein version. The woman's hair in the original and in Pyle's is very similar (beyond just the color). In Lichtenstein's it's different (in his, the woman's hair appears to be longer, whereas in the original and in Pyle's you see the ends of her hair curling up). In the original and in Pyle's you see a shadow beneath the point where the index finger and middle finger meet. That does not appear in Lichtenstein's.

Based on all of this, many folks in the comments to both the Boing Boing post and the band's post say that the Lichtenstein estate has no case at all. But... copyright law isn't quite that simple (and there are a few complicating factors). First of all, there's some question concerning the copyright on the

original work

. No one seems to know exactly where it's from. The only version people point to is the one that Barsalau has highlighted, but he doesn't seem to indicate the source as far as I can tell. And, to make matters worse, everywhere you find Barsalau's work on Deconstructing Roy Lichtenstein



copyright notices

all over everything. No, I'm not kidding. I'm not sure how he can claim copyright on any of that, but for right now that issue is probably secondary, unless somehow he really does own the copyright on the original, and can make a claim against... well... both Pyle and Lichtenstein's estate.

Leaving that aside, though, while common sense would suggest that the estate has absolutely no case, copyright covers the unique expression in an image, and one could potentially argue that Lichtenstein's work did some unique things from the original image... including (potentially) the decision of how to crop the image. Since no one seems to actually show the


source image, we don't know if the comic book image is cropped in the same way, or if that was, potentially, an artistic choice by Lichtenstein. If that's the case, the estate


make the argument that the copyright they hold is on the cropping choice, and while Pyle may have copied the image itself from the original, she copied the crop from Lichtenstein. Would that actually stand up in court? One would hope not, but stranger things have happened.

That said, the whole thing really is fairly ridiculous no matter how you look at it. It's ridiculously obnoxious for an appropriation artist, who relied on infringing on copyrights quite regularly to then turn around and claim that someone else infringed on his copyrights (or, in this case, to have his estate do the same thing). It's particularly obnoxious to basically say it was okay for Lichtenstein to do it to others, but anyone doing it to Lichtenstein is not allowed. And I won't even get into the ridiculousness of Barsalau then declaring copyright on his own efforts of matching Lichtenstein's work to the originals. Either way, it seems pretty silly that the band may now need to go find themselves a lawyer just to use a piece of artwork for their album cover.

Copyright Law vs. Art As A Shared Experience

Copyright Is An Exception To The Public Domain

A bunch of folks have been sending in this wonderful Public Domain Manifesto, put together by Communia. It's a wonderful read, highlighting the importance and value of the public domain, and putting forth a series of general principles which appear to make a lot of sense. It also discusses other aspects of related issues, such as the importance of individuals choosing to not use copyright, as well as the value of fair use and fair dealing. The point is both to highlight how important the public domain is to a vital thriving culture, and also to point out how the public domain has been steadily eroded over the last few decades. A key point is found in the first principle, and it's to remind everyone that copyright is an exception to the public domain, not the other way around:

The Public Domain is the rule, copyright protection is the exception. Since copyright protection is granted only with respect to original forms of expression, the vast majority of data, information and ideas produced worldwide at any given time belongs to the Public Domain. In addition to information that is not eligible for protection, the Public Domain is enlarged every year by works whose term of protection expires. The combined application of the requirements for protection and the limited duration of the copyright protection contribute to the wealth of the Public Domain so as to ensure access to our shared culture and knowledge.

Unfortunately, it's rarely thought about like this. Instead, most people consider copyright to be the rule, and things like the public domain and fair use to be exceptions. This is a problem, and it impacts how people view, understand and respond to things like copyright and the public domain itself.

To be honest, I have no idea how useful something like this manifesto really will be. Very few politicians seem to understand or care about the public domain and its importance. The manifesto might not have much of an impact on its own, but as a general set of principles for people to understand and gather behind it does seem like a good thing.

Copyrights And The Most Famous Drum Break Ever

January 21, 2010

This is a great piece from PBS, it's long but the video is not necessary so you can hit play and just listen.