The Internet has opened up a world of opportunities for artistic and literary creation. Ease of transmission from creator to viewer, and re-transmission from viewer to viewer, makes the Internet an ideal medium for artistic and academic creators to disseminate their work, and for commercial creators to reach wider audiences. Technology has provided the means for people to innovate -- along with the means for viewers to edit, alter, distort, and redistribute the words, sounds, and images they find on the Internet. For this reason, authors may find their creations altered and posted, or simply re-posted, in unlikely new places.

This raises issues of “respect and integrity.”  A creator typically hopes that others will respect her work and won't make unauthorized copies;  she also wants to protect the integrity of her work by keeping others from altering or manipulating it.

To fully appreciate the importance of "respect and integrity" in protecting intellectual property on the Internet, we should consider the many different ways in which protected images or writings can be appropriated -- either legally or illegally -- in this medium.  Here are a few examples:

• A copier may pass off an original creator's work as his own.
• A copier might produce an on-line parody, which criticizes the work of the original creator, or alternatively, an on-line endorsement, which shows admiration for the original creator.
• A copier might reproduce an image exactly, alter it slightly, or distort it until it is not recognizable as the original.
• A copier may reproduce the style of the original creator and thereby lead readers to believe, falsely, that his work is the original creator's.
• A copier may fail to credit the original creator on his website, or may give the creator unwanted credit for a distorted copy.
• A copier might appropriate an image for financial gain, or might simply use it to make a not-for-profit statement.

In this module, we will be discussing the issues surrounding respect and integrity in detail. To sharpen your understanding of, and reaction to, these issues, please begin by reading the attached case studies (all of them real).  Then complete the required reading.  When you have finished, consider the hypothetical problem described in this week's assignment.  As you complete the asssignment and participate in discussion, feel free to look through the suggested discussion topics or explore links to a variety of legal resources relevant to these issues.  Enjoy!

The Internet has inspired a new creative phenomenon: the publication and distribution of “fan fiction.” Amateur writers create new episodes and scenes from their favorite TV series or movie, and post them on a website dedicated to that show. Fan fiction is particularly popular in science fiction and fantasy circles.  The most active fan fiction communities focus on story lines from the X-Files, Star Wars, and most notably, Star Trek.

Star Trek fan fiction writers post Trek-based stories either on their own websites or on Star Trek websites dedicated to fantasy writing.  Organizations such as the Trek Writer’s Guild provide potential authors with suggestions and guidelines for developing their own Star Trek episodes. The Guild advises authors and website managers that Paramount owns all rights to Star Trek, its characters and story lines. As such, it recommends that “fan-atics” display disclaimers on their websites, stating that the stories are “not intended to infringe” Paramount’s copyright.

Generally, Paramount has not pursued legal action against Star Trek fan fiction websites -- probably because they are a great source of positive publicity, and are often maintained and visited by Star Trek’s most devout audience members.

However, in fall 1996, the company started contacting certain major fan fiction websites that it felt violated its copyright, asking them to remove the infringing material from their webisites. (See Wired news story.) In response, Viacom and other service providers began filtering unofficial fan sites, perhaps in an effort to escape possible liability for contributory infringement, or perhaps, as some protesters believed, because they were involved in a joint effort with Paramount to monopolize Trek culture. Fans and fan fiction authors launched an on-line protest campaign, but many fan fiction sites were still shut down permanently.

In Paramount’s open letter to Star Trek fans, the company’s president, David Wertheimer, explained his actions. He appealed to Star Trek fans by describing the tremendous skill and effort that the artists and authors regularly pour into the Star Trek characters and plots. Wertheimer claimed that one of Paramount’s main goals was to “protect the interests of the creative community.... The many talented actors, writers, directors, musicians, artistic designers, and others who make Star Trek possible. They expect Paramount to protect the integrity of their creative efforts, as well as the economic value of those properties on which they depend to make their living.”

In May 1999, Third Voice launched its annotation software.  The software allows web surfers to post public commentary (which can be seen by all other Third Voice users) on any website.  As explained in a Wired news story, "The free [Third Voice] browser utility 'snaps onto' the side of a Web browser window, inviting users to post their views on news, products, and politics. The comments look and feel like Post-It notes stuck onto a Web page. If posted as public notes (private notes are also an option), comments can be seen -- amid highlighted areas of text and footnotes -- by any other user that has installed Third Voice. Readers can comment on each other's postings, leading to what Third Voice calls 'inline discussions.'"  (For a more detailed explanation of how Third Voice works by Third Voice critic Jeremy Bowers, click here.)

So while Third Voice alters the overall appearance of a site somewhat because the commentary becomes visible on the page, the source code of the original website nonetheless remains completely intact, and readers without Third Voice see the page in its original form.  Jonathan Zittrain, Executive Director of the Berkman Center at Harvard Law School, says that Third Voice is like "a removable plastic transparency laid over the Mona Lisa. Paint a mustache on it, show it to the world; the pristine work beneath remains untouched and readily available."  But when a site has generated a great deal of commentary, it can become so covered in Third Voice boxes that is practically unrecognizable.  For example, when Third Voice users visit the White House web site, they will find a page largely obscured with Third Voice boxes (to view this page you must click "Download Here" on an interim page).  And because Third Voice does not censor or restrict its users in any way, the commentary contained within these boxes does not always relate to the subject matter of the web page on which they are posted.  What was originally intended as a means for readers to critically discuss the content of web sites has developed into a more general communication venue:  less than half of the content posted on any given web site is related to the content of that site.  Rather, most of the space is used for informal chatting, unrelated rambling, or posting links to pornographic web sites.  Web authors are concerned that unsaavy web surfers will believe that irrelevant rantings and links to pornography are actually connected with their site, effectively altering the content of their sites.

It is no wonder, then, that web site authors are very concerned about the impact that Third Voice has on their ability to control the content and appearance of their own sites.  Some web authors have joined together in a grass-roots effort to ban Third Voice in its current form.  These critics feel that Third Voice is graffiti -- vitrual vandalism -- and that authors and artists who post content on the Internet should be able to protect themselves against such an alteration of their work through technical and/or legal means.  The most vocal opposition comes from Say No To Third Voice, a 650-member organization dedicated to "the restoration of the webmasters' rights to control the integrity of their websites," and a number of individual Third Voice critics have also launched their own protest sites to register their opposition to the software.

These opponents are exploring both technical and legal means of protecting web sites against Third Voice commentary.  Programmers have developed and are selling computer programs that make it impossible for users with Third Voice to view a protected page.  The Simply No Third Voice program, for example, blocks all users who have Third Voice installed on their browsers, either by redirecting Third Voice users to another site or requiring them to accept a clickwrap license that only permits them to view the webpage after they agree not to annontate.  However, there is some question as to whether such software is effective against Third Voice; the current software explicitly refuses to offer a warranty that it will work, and many critics claim that there is no technical way around Third Voice.  Thus, many critics of Third Voice believe that a legal attack may be a better option.

The areas of doctrine related to respect and integrity on the Internet are complex and intertwined.  To begin, read this overview of the technological and legal issues related to copying and alteration on the Internet, an excerpt from Raphael Winick's article, "Intellectual Property, Defamation and The Digital Alteration of Visual Images," 21 Colum.-VLA J.L. & Arts 143 (Winter 1997).  Then, to see how intellectual property law might be applied to digital copying on the Internet, read this summary of Sony v. Universal (1984), a case about VCRs that has become the most influential legal precedent governing how copyright is applied to technologies that facilitate copying.

“Personality theory” asserts that artists and authors have a legal and moral interest in how their copyrighted works are used and displayed.  In order to develop a good understanding of this area of legal theory, please read excerpts from two different articles: "Personality Interests of Artists and Inventors in Intellectual Property" (1998) by Justin Hughes and "Theories of Intellectual Property Rights" by Professor Terry Fisher.  (If you have time and would like to develop an understanding of personality theory in the context of other theoretical justifications for intellectual property rights, please read Professor Fisher's entire article.)

But how does copyright law apply to “respect and integrity” for authorship on the Internet?  “Moral rights” allow artists and authors to control the way their work is used or displayed, and applies to art and writing on the Internet just as easily as it does as in real space.  For an explanation of moral rights doctrine and its history, please read an excerpt from Henry Hansmann and Marina Santilli, "Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analisys," 26 J. Legal Stud. 95 (1997).  Then, read two short selections from Mike Holderness' article, "Moral Rights and Authors' Rights: The Keys to the Information Age," The Journal of Information, Law and Technology (1998):  the first section asks, what are moral rights for? and the second section provides an overview of moral rights laws in Europe, the United States and Japan.  Finally, look at § 106A of the Copyright Act (known as the Visual Artists' Rights Act of 1990), the statutory embodiment of “moral rights” doctrine in the United States, and read summaries of two “moral rights” cases: Gilliam v. American Broadcasting Co. (1976) is an example of how moral rights were sometimes applied by the courts before the enactment of VARA in 1990, and Carter v. Helmsley-Spear (1995) is the only extant decision since 1990 that applies the Visual Artists' Rights Act.

Perhaps the most relevent exception to copyright protection is § 107 of the Copyright Act, the “fair use” exception.  Under fair use doctrine, parodies that incorporate part of a copyrighted work are protected if they are intended to criticize or comment upon that work are protected.  If those who distort copyrighted works are engaging in social criticism (and perhaps even if they are not), they may be engaging in “fair use.”  Please review this primer on the fair use doctrine, and then read a summary of Campbell v. Acuff-Rose (1994), a cases which applies the fair use doctrine to a parody of a copyrighted work.

“Fair use” doctrine has also been used in other areas of intellectual property law.  Trademark and trade dress law apply the “fair use” exception less generously than copyright law, but use much of the same reasoning in cases where a parody is thought to infringe upon a protected trademark.  Since the many copyrighted works (such as the shape of a Barbie Doll or the appearance of a Coca-Cola logo) are also protected under trademark law, the fair use exception to trademark infringement is also applicable to artists and authors on the Internet.  Please quickly review this Cornell Trademark Primer, then read descriptions of two cases that apply “fair use” in a trademark context -- New Kids on the Block v. News America Publishing (1992) and Mattel v. MCA Records (1998).

Someone who copies or distorts another person's work or likeness and publishes it on the Internet may also be liable for violating the original author's publicity rights.  Publicity rights protect the interests of people whose names and likenesses are publicized for profit without authorization.  While these rights are usually asserted by celebrities, recent case law and legal scholarship suggests that they may also be used to protect the integrity of fictional characters.  To better understand the doctrine of publicity rights, please read Michael Madow's article, "Private Ownership of Public Image: Popular Culture and Publicity Rights," 81 Calif. L. Rev. 125 (1993).
 
 

Katherine is a digital artist who regularly displays her work over the Internet.  She has just created a new work of digital art: a distorted version of the well-know Coca-cola symbol.

The piece is called "Altered Coke."  Katherine would like to display the piece in her digital gallery, but she has heard that large corporations sometimes take legal action against unauthorized displays of their copyrighted and trademarked  icons.  While she has altered the Coca-cola symbol considerably, it's red-and-white color scheme, round shape and scripted letters are easy for viewers to identify.

Katherine believes that the piece is most compelling in its present form, and she does not want to obscure the Coca-cola symbol or change the title of the work.  After all, distorting the symbol beyond recognition would undermine the piece's message about materialism and mass consumption.  However, she is concerned about her own liability for trademark infringement, as well as her ISP's liability for contributory infringement.

Katherine comes to you for advice.  She is prepared to go to court and defend her right to use the Coca-cola symbol in her work, but she would like to know whether she has a chance of winning such a lawsuit.  Please write a short (500-word) memo to Katherine advising her of her rights and suggesting a course of action and discussing the possible implications of that action.

If you are a member of group A, you should submit your assignment answer at the time and in the manner specified on the home page for your section.           CLE  | Section A1  |  Section A2  |  Section A3  |  Section A4  |  Section A5  |  Section A6  |  Section A7  | Section A8

If you are a member of group B, you are not required to submit an answer to the assignment but should feel free to discuss the issue in the Plenary Conference.
 
 

1.    The Internet makes it extremely easy to copy and paste images from one website onto another.  Should copyright and trademark law be applied to the Internet in the same way that it is applied in traditional media, or does the ease of digital copying (and the copy-friendly culture of the Internet) call for a different standard on the Web?

2.    In the United States, "moral rights" are governed by § 106A of the Copyright Act (known as the Visual Artists' Rights Act of 1990).  The Act explicitly denies moral rights protection to all forms of electronic publishing, and to works of visual art produced in quantities of more than 200. Why would Congress categorically deny moral rights protection to electronic publishing? The answer to this question may depend on how the term "copy" is defined -- whether a "copy" is made every time someone downloads an image, thus violating the 200-copy maximum, or whether no copy is made and the image is simply "time-transferred" and viewed, like a movie on a VCR? (See Sony v. Universal.)

3.    Copyright law applies to original works that are fixed in a tangible medium.  Is the Internet a "tangible medium"?  Can images and text be "fixed" on a website?  In short, should images and text published only on the Internet -- and not in a traditional, physical medium as well -- be eligible for copyright protection?

4.    Can digital manipulation of a copyrighted work ever be protected as “fair use?”  Often, the alteration of an artist's or author's work is intended to serve as commentary on that work. For example, as artist Mark Napier explains in his essays that his digital artwork, “Distorted Barbie” (see Barbie Case Study), was intended to be a commentary on the social implictions of Barbie dolls.  But what if the Distorted Barbie wasn’t providing social commentary?  Could Star Trek fan fiction constitute “fair use?” What factors might be important in determining whether a work of art which incorporates copyrighted images is “fair use” or not?

5.    Certainly, the Paramount authors who write for Star Trek invest a great deal of personal effort and artistic talent into each episode. Would Paramount be able to claim that its “moral rights” have been violated by Star Trek fans who operate fan sites reproducing and manipulating the show's characters and story lines? Do fan-’zines always run the risk of violating moral rights? We might also consider whether the writers of fan fiction might have the right to control their own artistic creations.

6.    What protection might a digital artist or author have over his own, Internet-published work?  Many fans who write Star Trek fan fiction claim that they have a copyright over their own semi-original stories.  Do these fans have any intellectual property rights over their own, semi-original episodes?  Can they prevent Paramount from using them?  Can they prevent other Internet sites from re-publishing them?

7.    Does Third Voice create a derivative work when it lays messages on top of a web site without connecting to the site's server or altering the structure of its source code in any way?  Could the commentary fit within the "fair use" exception to copyright protection?  Why might the members of Say No To Third Voice choose to sue Third Voice for contributory infringement, rather than suing the users of Third Voice for direct infringement?

8.    Read and discuss the Barbie Case Study.

9.    Read and discuss the Gary Larson Case Study.
 
 

Statutes

Selections from the Copyright Act

Legal Doctrine

Betsy Rosenblatt, "Copyright Basics," Spring 1998

BitLaw Primer on the "Fair Use" Doctrine

Michael J. Higgins, "A Pitch for the Right of Publicity," IP Magazine, December 1998

Cases

Campbell, aka Skyywalker, et. al. v. Acuff Rose Music, 114 S.Ct. 1164 (1994)
(discussing copyright "fair use" in regards to 2 Live Crew's parody of the song, "Oh, Pretty Woman")

Carter v. Helmsley-Spear, 71 F.3d 77 (2d Cir. 1995)
(the only extant decision applying the Visual Artists' Rights Act)

Gilliam v. American Braodcasting Co., 538 F.2d 14 (2d Cir. 1976)
(establishing alternative sources of moral rights)

Mattel v. MCA Records, 1998 U.S. Dist. Lexis 7310 (C.D.C.A. 1998)
(applying the "fair use" doctrine to a humorous song called "Barbie Girl," which parodies the doll)

New Kids on the Block v. News America Publishing, 971 F.2d 302 (9th Cir. 1992)
(permitting nominal use of a trademark in a newspaper poll about New Kids on the Block)

Sony Corp v. Universal Studios, 464 U.S. 417 (1984)
(discussing the fair use and contributory infringement issues involved in the use of home video recording systems)
 

Articles

Thomas F. Cotter, "Pragmatism, Economics, and the Droit Moral," 76 N.C.L.Rev. 1 (1997)
(excerpt: overview of moral rights)

Colleen Creamer Fielkow, "Clashing Rights under United States Copyright Law: Harmonizing an
Employer's Economic Right with the Artist-Employee's Moral Rights in a Work Made For Hire,"
7 DePaul-LCA J. Art & Ent. L. 218 (Spring 1997) (moral rights in works for hire)

Terry Fisher, Theories of Intellectual Property (draft) (explaining various theoretical bases for
intellectual property rights, including personality theory)

Henry Hansmann and Marina Santilli, "Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analisys," 26 J. Legal Stud. 95 (1997) (providing a comparative discussion and economic analysis of moral rights doctrine)

Mike Holderness, "Moral Rights and Authors' Rights: The Keys to the Information Age," The Journal of Information, Law and Technology (1998) (offering an explanation of the rationales behind moral rights doctrine and an overview of how the Berne Convention has been adopted throughout Europe, in the United States and in Japan)

Justin Hughes, "Personality Interests of Artists and Inventors in Intellectual Property,"
16 Cardozo Arts & Ent. L.J. 81 (1998)

Flore Krigsman, "Section 43(a) of the Lanham Act as a Defender of Artists' 'Moral Rights,'"
73 Trade-Mark Rep. 251 (May-June 1983) (alternative sources of moral rights protection)

Arlen W. Langvardt, "Protected Marks and Protected Speech: Establishing the First
Amendment Boundaries in Trademark Parody Cases," 36 Vill L.Rev. 1 (February, 1991)

Michael Madow, "Private Ownership of Public Image: Popular Culture and Publicity Rights," 81 Calif. L. Rev. 125 (1993) (desribing the doctrine of publicity rights)

Benjamin R. Seecof, "Scanning Into The Future Of Copyrightable Images:
Computer-Based Image Processing Poses A Present Threat," 5 High Tech L.J. 371 (1990)
(on the distortion of images and its impact on copyright rules)

Rebecca Tushnet, "Legal Fictions: Copyright, Fan Fiction, and a New Common Law,"
17 Loy. L.A. Ent. L.J. 651 (1997) (asserting that “the secondary creativity expressed in
noncommercial fan fiction deserves the protection of the law”)

Raphael Winick, "Intellectual Property, Defamation and The Digital Alteration of Visual Images,"
21 Colum.-VLA J.L. & Arts 143 (Winter 1997) (on the distortion of images)