Justin Levine 's Techdirt Comments

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  • Photographer David Slater Claims That Because He Thought Monkeys Might Take Pictures, Copyright Is His

    Justin Levine ( profile ), 15 Jul, 2011 @ 11:40am

    Re: Re: Re:

    Fair use might not apply because Mike has repeatedly stated he is not a journalists. This is a for profit blog, nothing more and nothing less. Fair use would be very marginal at best.

    Every major news outlet is "for profit" - The NY Times, CNN, USA Today, ABC News, etc. So trying to distinguish this forum as a "for profit blog" is of little relevance in terms of a fair use analysis.

    As for his "the photo is in the public domain" [argument], he would have to prove that.

    He would only have to prove that AFTER somebody else made a preliminary showing through proof that they owned a valid copyright in the image. The mere physical possession of an image is not enough to overcome this initial evidentiary hurdle.

  • Monkeys Don't Do Fair Use; News Agency Tells Techdirt To Remove Photos

    Justin Levine ( profile ), 12 Jul, 2011 @ 02:23pm

    On Monkeys and 24/7 Security Cameras

    Pg. 20-21 of "Copyright: Examples and Explanations" by Suffolk University Law Professor Stephen M. McJohn:

    The limitation of copyright to "works of authorship" also implies an author. This appears to mean that a human created the work, using the requisite creativity. In a work made through a completely mechanical process, copyright might be denied on the basis that no one was the "author". If a security camera mounted in a lobby, recording 24-hours a day, captured a dramatic event, the video could be uncopyrightted.

    Computer-generated works also raise the issue of authorship. If works are generated automatically or are the product of some future artificial intelligence, there may be no human author. The question would likely be whether the work reflected originality on the part of a human, or whether the choices were actually made by a computer.

    "Works" created by natural processes or by nonhuman animals would also not be "works of authorship." Lava flows off volcanoes may form fantastical shapes, but are not copyrighted, not being the product of a human author. Elephants and gorillas have both been taught to produce paintings. The paintings are not copyrightable, not being works of authorship.

    Source here: http://books.google.com/books?id=Gq9VbEQnxaQC&lpg=PA20&pg=PA20#v=onepage&q&f=false

  • Monkeys Don't Do Fair Use; News Agency Tells Techdirt To Remove Photos

    Justin Levine ( profile ), 12 Jul, 2011 @ 02:02pm

    Even the Copyright Registration Office Agrees That Monkeys Can't Hold Copyrights

    The following is quoted directly from Section 503.03 of the current Compendium of Copyright Office Practices (published by The U.S. Copyright Office):

    503.03 Works not capable of supporting a copyright claim.

    Claims to copyright in the following works cannot be registered in the Copyright Office:

    503.03(a) Works-not originated by a human author.

    In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.

    Check out the full publication here:


  • Wizard Of Oz Court Ruling Suggests Moviemakers Can Reclaim Parts Of The Public Domain And Put It Under Copyright

    Justin Levine ( profile ), 08 Jul, 2011 @ 09:25am

    A Tragedy Devolving Into Farce

    An absolutely awful court decision - but consistent with the string of awful decisions on copyright interpretation that have oozed out of the courts in recent decades.

    Mike is correct that this not only destroys the idea/expression dichotomy that is (theoretically) supposed to exist, but also ignores the traditional "fixation" requirement that copyright is supposed to require under law.

    The concept of copyrighting "characters" outside of the concrete images or book passages they are depicted in destroys the concept of the fixation requirement. If I copy the concrete images of Sean Connery from 'Goldfinger', I have violated copyright (fair use considerations aside). But if I make my own creative film using a different actor in a white tux, drinking a martini and announcing himself as "Bond...James Bond..." I have not "copied" anything since none of the creative elements I have used were "fixed" in a previous work. It was made with a different camera, using a different actor, with different lighting, and different soundtrack which combines to recall a previously made character. But to the extent that a "character" can exist outside of fixed, concrete bounds means that in order to "copyright" the character, you must extend copyright into the realm of ideas - not fixed expression which copyright law is supposed to require as a Constitutional limit.

    This is just one of the many contradictions that modern copyright jurisprudence offers us. And why it is coming to an increasing head with how the free speech is used in the digital/information age.

  • Supreme Court Agrees To Hear Important Copyright Case: Will Review First Amendment vs. Copyright Issue

    Justin Levine ( profile ), 13 Jun, 2011 @ 12:18pm

    Re: Re: Re: Re: Re: Re:

    Re: Anonymous Coward, Mar 8th, 2011 @ 9:19am -

    Here is more proof that your comments are 100% wrong:


  • Is The Mike Tyson Tattoo On Ed Helms A Parody?

    Justin Levine ( profile ), 25 May, 2011 @ 01:36pm

    The False Notion of Viable Parody Defenses

    Alas - There are many shameful legal authorities to suggest that a parody defense would not fly in this case. It SHOULD be a viable defense in this case as a matter of sane legal policy, but copyright law has jettisoned sane legal policies some time ago.

    A starting primmer worth reading here:


    There are other authorities which MIGHT suggest otherwise, but just how the holdings are to be applied in other contexts have proven to be as clear as mud:


    As Justice Souter (most regretfully) said in the link above: "[P]arody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law."

    "Case by case" with no clear answers is the key here - at least until you've spent thousands of dollars in court to have a judge tell you the answer (and then risk a liability judgment on top of that if you lose).

    Keith pretty much had it right in his comment above - If it happens to make the presiding judge laugh, then its "parody". If not, then its copyright infringement.

    Its all just further proof of what a disgrace the current copyright regime is - allowing judges to fashion themselves as art and literary critics, rather than the arbitrators of objective legal principles.

  • Administration's New IP Enforcement Recommendations Will Only Serve To Make IP Less Respected

    Justin Levine ( profile ), 15 Mar, 2011 @ 07:42pm


    Again, something that sounds innocuous enough until you realize that pretty much everyone is a repeat intellectual property offender every single day.

    Citation needed for this broad statement.

    Ok. Just off the top of my head? Here we go:

    Section 102 of Title 17 indicates that all literary works receive copyright protection and that emails qualify as "literary works" since they are fixed in a tangible medium of expression. See: http://www.quizlaw.com/copyrights/what_is_fixation.php

    Therefore, any time you forward an email to third parties without the express permission of the original author of the email, you are in violation of his/her copyright. Haven't we all done this?

    There's your citation. Do you genuinely need further legal citations regarding your cel phone camera capturing sculptures, billboards, photos or architectural works in the background without their respective creators' permission? Or are you just being obtuse?

  • Supreme Court Agrees To Hear Important Copyright Case: Will Review First Amendment vs. Copyright Issue

    Justin Levine ( profile ), 09 Mar, 2011 @ 09:35am

    Re: Re: Re: Re: Re:

    Here is a link to the Conductors' Guild brief to back up my claims:


  • Supreme Court Agrees To Hear Important Copyright Case: Will Review First Amendment vs. Copyright Issue

    Justin Levine ( profile ), 09 Mar, 2011 @ 09:33am

    Re: Re: Re: Re: Re:

    Justine, if you created (and completed) the work while it was in the public domain, you would (a) end up with a copyright on your new work (the movie), and (b) would face no issues because you worked from public domain material. You are only bound by the law and the restictions at the time of your actions (creation) not in some future sense.

    There is no domino effect, as you claim. Sorry.

    Here is what the Conductors' Guild has said about the issue in their amicus brief to the Supreme Court in this case:

    The "restoration" of copyright protection to previously available works both demands a new financial investment from orchestral groups and undermines their previous investments. These new higher rental fees inevitably will result in orchestral groups choosing not to perform canonical works that have been performed frequently for decades. Moreover, an orchestra?s earlier investment in its own sheet music is undermined by this restoration. If the work in question is newly protected, an orchestra is not entitled to perform it simply because it previously purchased a copy of the score. Instead, performance of such a work requires payment of a performance fee or purchase of a blanket license.

    [Ending emphasis added]

    Would you now care to rethink your claims on there being no 'domino effect'? Or do you feel that the Conductors' Guild is similarly deluded as I am, and that they really wouldn't have to pay performance fees on works they already acquired during a time when the works were in the public domain?

  • Supreme Court Agrees To Hear Important Copyright Case: Will Review First Amendment vs. Copyright Issue

    Justin Levine ( profile ), 08 Mar, 2011 @ 10:26am

    Re: Re: Re: Re: Re:

    Justine, if you created (and completed) the work while it was in the public domain, you would (a) end up with a copyright on your new work (the movie), and (b) would face no issues because you worked from public domain material. You are only bound by the law and the restictions at the time of your actions (creation) not in some future sense.

    Do you have any legal authority for this claim? I am honestly unfamiliar with any. The whole point is that I wouldn't be working from public domain material - it would be material that is/was given newly vested copyright protection.

    Let's say that instead of creating a derivative work, I made a straight digitally cloned copy of the original Metropolis while it was in the public domain. It is MY copy that I have lawfully made. Now Metropolis goes back into copyright and someone wants to make a copy of MY copy. Do you argue that since my copy was made during the public domain period that it is OK to copy from it? That would seem to defeat the purpose of putting it back into copyright. But if people don't have the right to copy my copy once Metropolis is put back into copyright, how can people suddenly have the right to make derivative works? The time frame becomes irrelevant here. It doesn't matter if the act of creation was made in the short public domain "window", and I know of no legal authority which suggests otherwise.

    What if I spent vast sums to start creating my derivative work on Metropolis, but only completed 95% of it by the time the original Metropolis was put back into copyright? I guess I'd just be out of luck then? How are we to determine at what date such derivative works are/were created since registration is not necessary?

    What if I take my newly created derivative work and immediately will them to the public domain? People should then be able to remake, remix and recreate the work - but under your scenario they wouldn't be able to, since it would still be violating the original Metropolis which now has been given newly vested copyright protections.

    It is easy to see the complete mess that would be created under the legal scheme you seem to support.

    The Amazon links you point are irrelevant. Nobody argues that the works are locked up - just that you have to pay for them when there should be alternative free avenues via the public domain (which directly affects one's free speech rights). It is the equivalent of saying a poll tax should be constitutional since it doesn't affect one's ability to vote - you just have to pay for the privilege. The Supreme Court has explicitly rejected that argument, as they should in this scenario as well.

  • Supreme Court Agrees To Hear Important Copyright Case: Will Review First Amendment vs. Copyright Issue

    Justin Levine ( profile ), 07 Mar, 2011 @ 10:59pm

    Re: Re: Re:

    Some of the works at issue include:

    H.G. Wells? Things to Come
    Fritz Lang?s Metropolis
    The musical compilations of Igor Fydorovich Stravinsky

    The harm to free speech rights in taking even a small amount of works out of the public domain is far more significant than you seem to imply. You seem to ignore the domino effect that will occur with regards to derivative works that would otherwise be given separate copyright protections.

    For instance, let's say I create a remake of Fritz Lang's film Metropolis while Lang's film was in the public domain. I spend the sums to hire new actors, set decorators, camera crew etc. On top of that, I create both a new novelization and stage play based on my film (which again, is all based on the original Fritz Lang Metropolis).

    Since Metropolis is in the public domain, I don't need to ask anyone's permission or pay off any estate to create my new works based on the original work.

    After creating these 3 new works (a remake of the film, a novelization and a stage play), Mr. X licenses the rights from me in order to create a line of T-shirts based on my new works (which are given separate copyright protection, since they contain their own original and creative elements on top of the public domain film).

    After spending my time, effort (and perhaps money) to create these new works, the original Fritz Lang film is suddenly yanked out of the public domain and given copyright protection again. The Fritz Lang estate then issues a cease and desist letter to both me and Mr. X, claiming (quite correctly) that all of these new works now violate the copyright of the original Fritz Lang work.

    What should the response be? The best case scenario is that I and Mr. X now must pay large (perhaps crippling) fees to the Lang estate in order to distribute our newly created speech. The worst case scenario is that the Lang estate doesn't care how much we pay them, they want these new works permanently enjoined and destroyed.

    Either way, the ramifications towards free speech rights are staggering.

    Since copyright law no longer requires people to register works in order to get copyright protection, there is no way to know how many derivative works have already been created in the popular culture that were based on public domain works that were yanked back into copyright. The end result is a domino effect that ends up blocking new creative works that were made under the promise of a stable public domain.

    So this all affects far more than your misguided claim that "the moving from public domain to copyright for a small number of works [won't] significantly diminish anyone's rights..."

  • Just Calling Something Property, Doesn't Make It Property

    Justin Levine ( profile ), 23 Nov, 2010 @ 05:23pm

    Re: Libertarians are Split

    Not everyone associated with Against Monopoly is a Libertarian. It is comprised of a diverse group of voices who find common cause on the broad issue of IP. Stephan Kinsella is a leading voice of the anti-IP Libertarians, and he contributes much to Against Monopoly, but its still comprised of people with diverse beliefs on other issues.

    The only thing that can be said is that the IP debate does not fall neatly into the traditional ideological/political spectrum that has shaped debates in the U.S. in recent decades. However, the debate over IP still remains a debate over how to define fundamental concepts of rights and freedoms, which is why it remains so contentious when a large philosophical chasm remains between the two sides.

  • Terrible News: Court Says It's Okay To Remove Content From The Public Domain And Put It Back Under Copyright

    Justin Levine ( profile ), 22 Jun, 2010 @ 03:08pm

    This Decision Blows!

    It seemed to rule on First Amendment issues, which it got wrong in my (correct) opinion.

    Though I wonder if there still might be room to continue a challenge based on either the Contracts clause or Takings clause of the constitution.

    The Takings clause argument might be a two-edged sword in this instance, since it might inadvertently encourage courts to accept the false analogy between IP and real property, but it is still a long-shot legal avenue to consider in trying to overturn this turd of a ruling.

  • Some Fiction About Fan Fiction

    Justin Levine ( profile ), 18 May, 2010 @ 03:57pm

    Re: Re: Re: Re: Copyright law

    Aha indeed.

    Blog comments are admittedly a more cumbersome form of communication than many realize. It seems to encourage quick language shorthand styles as your initial thoughts spill out, but ends up requiring more exacting precision of words in order to properly clarify one's point.

  • Some Fiction About Fan Fiction

    Justin Levine ( profile ), 17 May, 2010 @ 04:34pm

    Re: Re: Copyright law

    Karl -

    If the author of work creative work "X" allows fans to create fan fiction based on "X", then the author would certainly retain the legal ability to prevent film adaptations based on "X" if he/she wanted to. But that is not what I took to be your point.

    You are (or seem to be) suggesting that if the courts were to recognize a fair use right to create unauthorized fan fiction based on "X" (without the author's permission), then the court could still prevent unauthorized film adaptations based on "X" by denying similar fair use protections simply and purely because it is a film (versus a written work). This is a false legal assertion.

    Fair use rights intersect with First Amendment concerns. In this respect, the courts do not "value" print works more than film works and vice versa. They will simply analyse if it is a "derivative" work or not, and then apply copyright law principles to it.

  • Some Fiction About Fan Fiction

    Justin Levine ( profile ), 17 May, 2010 @ 12:57pm

    Karl -

    I happen to be a lawyer, but I'll admit its irrelevant since anyone can debate copyright law if they simply read up on it (you don't need a law license to do so, and I encourage you to continue to do so).

    With that said, your analysis is incorrect. Copyright law (both in its formal written terms as well as case law) clearly gives an author exclusive right over "derivative works" - this includes all sequels in all mediums based on the original work (film, tv, sculptures, literature, etc.). If I write a book on "The Life of Character X". Then I have control over who gets to make a movie based on "The Life of Character X" or who gets to write "The Further Adventures of Character X".

    Even if I choose not to make a film adaptation of my work, such a film would still be "competing" with my original work according to long held copyright rulings and precepts.

    Again, this all sucks since current copyright law sucks. But that is objectively the way copyright law works. You are respectively mistaken.

  • Some Fiction About Fan Fiction

    Justin Levine ( profile ), 16 May, 2010 @ 09:29pm

    Most Fan Fiction Constitutes A Form Of "Derivative Work" Under Our Ridiculous Copyright Laws

    I'm in complete agreement that fan fiction SHOULD be allowed. Mike is also correct to point out that R.R. Martin is simply wrong on certain points such as confusing trademark law concepts with copyright law.

    But here is the ultimate problem with the overall analysis by some from the legal perspective (and why most fan fiction IS a copyright violation under current law - even though it shouldn't be from a policy perspective): If you allow fan fiction in one medium (i.e., literature and comics), then there is no real justification for not allowing it in all mediums (i.e., film, television series, etc.).

    In other words, if you allow fan fiction for J.K. Rollings' characters in the form of books, then there should be nothing to prevent you from making unauthorized Harry Potter movies to compete with those that currently exist. Same with James Bond, etc. Yet if you were to try to do so, you would certainly be (successfully) sued by Sony Studios, along with the estates of Ian Flemming and (producer) Albert "Cubby" Broccoli.

    Ultimately, fan fiction cannot be distinguished from any other "derivative work" or sequels that copyright owners have exclusive rights to. Copyright law allows people to prevent the creation of derivative works. That's not the way it should be, but that is the way it currently is.

    The real problem is the fact that copyright law grants monopolies over "derivative works" in the first place - thus diluting (and arguably even obliterating) the notion that copyright shouldn't extend to "ideas", only the "fixed expression" of ideas.

    An exception does indeed exist for "parody", but the legal (and admittedly vague) concept of parody as enforced by the courts is more narrow than many (understandably) want to believe here.

    The mere fact that an unauthorized work "comments" on a previous work does not make it parody (or fair use). In a sense, ALL derivative works and sequels comment on the first underlying copyrighted work at some level. In "Casino Royale", when James Bond is asked if he wants his martini "shaken or stirred" and he responds by saying "Does it look like I give a damn?", this of course is "commenting" on all the previous Bond films which built up the "shaken, not stirred" mantra. This doesn't mean that "Casino Royale" is a "parody". If I had wanted to make that film on my own as a work of "fan fiction" (before Hollywood actually made it on their own), I still would have had to secure the rights from Sony, Flemming, et al. in order to avoid copyright liability.

    It all sucks. It shouldn't be that way. But that's the way it is.

    I'm in total moral support with what Mike and others are advocating here. But I should caution against conflating policy desires with objective legal realities.

    It seems to me that the only fair solution is a radical overhaul of how copyright law treats the overall issue of "derivative works" - not to carve out a narrow exception for written "fan fiction" in terms of what should be protected speech.

    That's my two cents anyhow.

  • Rejoice: It's No Longer Patent Infringement To Sell A Trading Card With Memorabilia

    Justin Levine ( profile ), 02 Apr, 2010 @ 01:57pm

    Summary Judgement vs. The Right of Juries To Decide

    Anonymous Coward - Regarding your post at Apr. 2, 9:44am: To quote the decision itself,

    "Summary judgment is appropriate if 'there is no genuine issue as to any material fact and . . . the movant is entitled to a judgment as a matter of law.' Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)...Whether an invention would have been obvious at the time the invention was made is a question of law, which we review de novo, based on underlying factual determinations, which we review for clear error, Takeda Chem. Indus., Ltd. v. Alphapharm Pty., Ltd., 492 F.3d 1350, 1355 (Fed. Cir. 2007), unless, as is the case here, no material facts are in dispute."
    Let's leave aside my personal belief that all reasonable people would have to conclude that this 'invention' was obvious. That does not change the fact that courts/judges have ALWAYS decided questions of "obviousness" as a matter of law and not given the question to the jury. Now - you can reasonably argue that this has been a mistake all along. Even though there are no "material facts in dispute" in this case, there is still a value judgment to be made as to how undisputed facts are to be applied to the law in the case of deciding what is "obvious". In that sense, perhaps a jury should be allowed to decide. But if that is the case, then this reasoning must be applied to ALL such questions in IP law - particularly the question of what constitutes "fair use". As I'm sure you are aware, judges don't allow juries to decide issues of fair use, despite its very flexible nature that allows for value judgments to be made. They decide fair use themselves through summary judgement. Again, this is the way it has always been (at least for as long as I can recall). If judges allowed juries to start ruling on fair use questions, the entire IP industry would shit their collective pants because they know that common notions of "fair use" are far broader than what most judges currently allow for. So while I sympathize with the general idea that juries should be fare more involved with IP law questions than the system currently allows for, that does not change the fact that long standing precedent has been allowing judges to make these decisions for years. As a result, the criticisms of the dissenting judge are well warranted. As a final side note, it is interesting to observe that the dissenting judge doesn't cite a single case in his own decision to try and back up his argument that such matters are a proper question for a jury.

  • Hot News Is Back: Court Blocks Website From Reporting The News

    Justin Levine ( profile ), 21 Mar, 2010 @ 04:40pm

    Thank Goodness For This Decision!

    I have a great business model wherein I employ slave labor to undercut the prices of my competition. A competitor sued me on behalf of my slaves - claiming violations of the the 14th Amendment and other related civil rights. The judge allowed me to continue this operation under the "cheap goods" doctrine, but because he had to "balance these interests" with Constitutional considerations, he limited my employee operations to just 2 days of indentured servitude before I had to capture new slaves and start the process over again.

    Good thing that courts are in place to uphold these business models, rather than people's so-called "rights".