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 a wider audience. 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.” An original creator hopes that others will respect her work and won't make unauthorized copies; she also wants to protect the integrity of his work by keeping others from altering or manipulating it. Specifically, many copyright and trademark owners would like to prevent the use of their materials on the Internet, but while they may have the right to prevent such use, they may not have the ability.
To fully appreciate the importance of "respect and integrity" in protecting intellectual property on the Internet, we should consider the ways 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:
Clearly, there are many different degrees of copying, motivations for copying, and effects of copying on an original creator. Since very little case law exists on digital copying and the violation of copyright or trademark rights on the Internet, we can only guess how some of these scenarios might play out in court. The rights of copyright and trademark owners whose images or writings are used or manipulated in digital art, as well as the rights of digital artists to their own Internet-published creations, provide fertile ground for an exploration of "respect and integrity" on the Internet.
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. 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!
Mark Napier is a digital artist who gathers graphic images found on the Internet and distorts them until they represent new, independent creations. His own digital gallery displays a series of digitally manipulated images, as well as fixed and animated collages. Napier has received an award for website deign, and describes his art as “woven... images of the body, religious icons, pop culture and the computer interface itself.”
In June 1996, Napier created “The Distorted Barbie,” a web-art installation that displayed digitally altered images of Barbie dolls in order to comment on Barbie as a cultural/commercial symbol and pop-icon. He published his original Distorted Barbie both on his own site at Interport and in the e-zine Enterzone. Napier admirers describe the piece as “a web-based exploration in words and images of the impact Barbie and all her baggage have had on our bodies and culture. The site is a poetic and potent piece of Internet art.”
After discovering the site in October 1997, Mattel sent strongly-worded cease-and-desist letters both to Enterzone and to Interport, Napier’s Internet service provider. Interport, not wanting to become embroiled in a law suit, asked Napier to comply. Napier considered moving to another ISP, but was worried that changing addresses would diminish traffic to his site. Instead, he complied with Mattel's legal demands by replacing his old Distorted Barbie with a new version of the image, so altered that it is barely recognizable as Barbie. To answer Mattel's request that he stop using the trademark "Barbie," he changed the name of the new image to Distorted $arbie. He hoped that these changes would clear Interport of any possible infringement charges. Napier was also concerned about his own liability, although Mattel had not indicated that it would take any legal action against him.
Meanwhile, Christian Crumlish, the editor of Enterzone, followed the progress of the Napier controversy. For a time, he published a nearly day-to-day account of the issue at a site called “The Daily Barbie.” It encouraged readers to join the rebellion by mirroring Napier's original site faster than legal teams can ask that it be torn down. The mirrored sites have survived, proving the "meme" successful: Mattel has been unable, or unwilling, to track them down and take legal action. Yet, it is not clear whether a mirroring scheme like this could thwart any attempt at enforcement of claims by Mattel. It is equally uncertain how copyright will be enforced in a medium as vast and uncontrolled as the Internet.
The creators of the meme site argued that Barbie is an essential thread in the fabric of American (and, indeed, global) culture, and therefore should be available for use in public dialogue. Because the doll’s likeness is the easiest and only way of expressing the abstract concept of “Barbie,” they feel that people should be able to express cultural criticism using the likeness, regardless of Mattel’s copyright ownership. Indeed, Napier’s Distorted Barbie site includes several essays about symbology and the social implications of Barbie.
Napier’s site differs, in many ways, from fan-’zines and other sites celebrating Barbie, such as “The Dolls, The Dish & the Dollars.” Yet, Mattel could seek to shut down these ’zines, in the same way it tried to shut down Napier's site, because they use unauthorized images of Barbie. Whether Mattel would choose to challenge these sites depends, at least in part, on whether the sites compete with or complement Mattel’s own Barbie site.
Napier has developed a sizable following among digital art fans. Some admirers reproduce his work on their own websites. Napier may be able to enjoin others from displaying his artwork by mirroring or linking to his site. His rights over his own work may depend, in part, on whether his piece is entirely original, or a distorted version of a copyrighted cultural icon. Napier's new Distorted Barbie is a far more warped, less identifiable image of the doll -- and the similarity (or dissimilarity) of this version to the original Barbie may substantially affect whether it infringes upon Mattel's copyright and trademark rights. It could also determine whether Napier has greater rights over the new Distorted Barbie than the old one.
Moral
rights allow the creator of a work of visual art to retain autonomy
over that creation. Indeed, the artists who design Barbie dolls invest
a great deal of personal effort and artistic talent into each doll. Would
Mattel be able to claim that its “moral rights” have been violated by Napier
or by those who maintain Barbie collectors' sites? Do fan-’zines always
run the risk of violating moral rights? (See the Gary Larson case study,
below.) Napier may also have “moral rights” to the artistic work he has
produced. In assessing moral rights, it may be important to consider the
fact that the original artists are paid by Mattel, or that Napier reaps
no financial gains from his work.
Transcript
of March 16 Live Interview with Mark Napier
* * * * *
Case Study 2: Gary Larson's Cartoons
The situation of Gary Larson, creator of The Far Side cartoons, demonstrates one area where respect and integrity, the internet, and moral rights law intertwine. Many sites feature Gary Larson cartoons and praise Larson's work (here's one). Despite the publicity (indeed, even advertising) that this brings to Larson and The Far Side, Larson wants the owners of such sites to stop posting his creations. He has written a letter, desperately striving to curtail the posting of his cartoons without alienating his fans: Reto Portmann, one of those fans, removed the Larson cartoons from his site and replaced them with a copy of the letter. Portmann invited comments from visitors to his site. While many applaud Portmann's adherence to his hero's wishes, others accuse Larson and his managers of being greedy, selfish, and cruel.
Postings such as that of Larson's cartoons on the internet implicate
not only the author's exclusive to display the work publicly 17 U.S.C.
§101 (definitions of "display" & "publicly"), but could also implicate
an author's moral rights in the work, if scanning the work into a computer
could be interpreted as "distortion, mutilation, or modification" of the
work. Should the scanning and posting of visual art qualify as "distortion,
mutilation, or modification?" (Note: Gary Larson's
cartoons do not qualify as "visual art" under VARA.)
* * * * *
Case Study 3: Star Trek Fan Fiction
The Internet has made possible yet another creative phenomenon: the publication and distribution of “fan fiction.” Fan fiction is particularly popular in science fiction and fantasy circles, and the most active fan fiction communities focus on story lines from the X-Files, Star Wars, and most notably, Star Trek. Amateur writers create new episodes and scenes from their favorite TV series or movie, and post them on a website dedicated to that show.
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 intented 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.”
It seems like both the creators of Star Trek and the creators of derivative “fan fiction” work hard and take a great deal of pride in their artistic works. This suggests a certain reliance on “personality theory,” which provides that authors and artists have a natural right to self-expression, and because expression is an embodiment of the self, a right to control that expression. Should Paramount have complete control over all aspects of the Star Trek world that they created? Or should authors be allowed to write and publish on-line, non-commercial stories based on the copyrighted series? Does fan fiction violate the personality rights of the original creators of Star Trek? Does censorship of fan fiction infringe on the personality rights of internet-based writers? Are the two sets of artistic or creative rights mutually exclusive?
* * * * *
For more information on the issues raised in this case study, go to
the list of legal
resources compiled for this subject.
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 which 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? In past modules you have examined the Copyright Act generally. Here we will look at § 106A of the Copyright Act (known as the Visual Artists' Rights Act of 1990), which is the statutory embodiment of “moral rights” doctrine in the United States. “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. Please read Betsy Rosenblatt's memo, “Moral Rights Basics.” Then, 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 which incorporate part of a copyrighted work are protected if they are intended to criticize or comment upon that work are protected. If Napier and those who mirror his site 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 shape of a Barbie Doll or the appearance of a Coca-Cola logo are protected under trademark as well as copyright 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 anothers 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).
Imagine that Mark Napier has created a new work of digital, a distorted version of the well-know Coca-cola symbol.
The piece is called "Altered Coke." He would like to display the piece in his digital gallery, but his experiences with Mattel make him extremely wary. While he 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.
Napier believes that the piece is most compelling in its present form, and he 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, he is concerned about his own liability for trademark infringement, as well as his ISP's liability for contributory infringement.
Napier comes to you for advice. He is prepared to go to court and defend his right to use the Coca-cola symbol in his work, but he would like to know whether he has a chance of winning such a lawsuit. Please write a short (500-word) memo to Napier advising him of his rights and suggesting a course of action and discussing the possible implications of that action.
Group A: Please submit your assignment via e-mail to your TF.
Group B: If you wish to do the assignment, please post your response
on the plenary threaded 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. Why did Mattel send the letter to Interport instead of Napier himself? Should Mattel have any legal claims against Napier? Enterzone? Interport? In examining these questions, consider the issues raised in Module I regarding ISP liability and juridiction.
3. Is Napier’s manipulation of Barbie “fair use?” Napier’s Distorted Barbie site includes several essays about symbology and the social implications of Barbie. But what if the Distorted Barbie wasn’t accompanied by social commentary? Are those who simply mirror the site, rather than commenting on the social implications of Barbie, engaging in “fair use?” What factors might be important in determining whether a work of art which incorporates copyrighted images is “fair use?” or not?
4. In the United States, "moral rights" are governed by the 1990 Visual Artists' Rights Act. The Act explicitly denies moral rights protection to all forms of electronic publishing (like Napier's images), and to works of visual art produced in quantities of more than 200 (like Barbie dolls). 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.)
5. Imagine that George, one of Napier's fans, realizes how popular Napier has become and launches his own website called "The Mark Napier Gallery." Unlike Napier's own gallery, this website does not actually contain work created by Mark Napier; rather, it contains digitally manipulated images that closely resemble Napier's work, but which were actually created by George himself. George starts charging other Napier fans for access to his on-line gallery. (Napier's own gallery is available for free.) Napier may want to sue to recoup George's profits, or to make George stop using his name. Does it matter whether George's customers know George made the designs himself or think that they are genuine Napier images? Can an on-line personality like Napier have publicity rights?
6. When an artist reproduces all or part of a copyrighted or trademarked image, should his or her liability for infringement depend on how popular or widely-recognized the image is? Should cultural icons like Barbie or Coca-cola be more or less protected than the logo for, say, a local plastics manufacturer?
7. Are Internet Service Providers liable when their customers engage in copyright or trademark violation? If not, how can IP law be enforced against the infringers themselves? (Please refer to Module I for more on this topic.)
8. 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?
9. What protection might a digital artist or author have over his own, Internet-published work?
10. Does Gary Larson have a right to prevent unauthorized publicatoin of his cartoons on the Internet? If so, how can he enforce this right? (See Gary Larson case study.)
11. Are Star Trek fans who write new Star Trek episodes
and publish them on the Internet infringing on Paramount's intellectual
property rights over the show's characters and story lines? 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? (See Star
Trek Fan Fiction case study.)
Statutes
Selections from the Copyright Act
Legal Doctrine
Betsy
Rosenblatt, "Copyright Basics," Spring 1998
BitLaw
Primer on the "Fair Use" Doctrine
Betsy
Rosenblatt, "Moral Rights Basics," Spring 1998
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
Steven
Cordero, "Cocaine-Cola, the Velvet Elvis and Anti-Barbie: Defending the
Trademark
And
Publicity Rights of Cultural Icons," 8 Fordham I.P. Media & Ent. L.
J. 599 (Winter 1988)
(arguing for “a new standard [in] cases dealing with the unauthorized
use of cultural icons, permitting uninhibited use so long as there is no
confusion as to source, sponsorship or affiliation”)
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)
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)
Please join us on March 16, 1999, from 7-8 p.m., EST, for a live discussion with artist Mark Napier. Mark will discuss his experiences with Mattel and the "Distorted Barbie" controversy, and will also share his thoughts on digital art, copying as a form of art, the Internet as a medium for expression, and the intellectual property protection of cultural icons.
If, after you have familiarized yourself with the facts of the "Distorted Barbie" case study and the legal issues growing out of it, and you would like to ask Mark Napier a question about his work and philosophy, please do so at the following email: jen@eon.law.harvard.edu. Mr. Napier will also be taking questions from the audience.
Time limitations may, of course, prevent him from responding to your question during the one-hour interview, but we will try during the interview to cover as many as possible of the topics raised in your submissions.
To get into the live interview, please go to the Discussion Areas section
and follow the directions under "Plenary Chat."