These past 12 months have come and gone, and it’s only that latter aspect that they have going for them. A nation divided, global turmoil, natural disaster after natural disaster, Daddy’s Home 2 — so many reasons to wag your head in disgust while reaching for your rapidly depleting bottle of Old Crow. But, instead of looking back, let’s please — please! — look ahead, to 2018 and all the positive and progressive things that the year to come may hold. In the world of copyright law, at least, there is much fodder for excitement, or, at the very least, cautious optimism.
Artists, like most Americans, have had a tough go of it as of late. The internet continues to drive down the value of content and enable widespread infringement. Musicians are boxing up their bass guitars, stowing them beneath their beds, and ditching their artistic dreams in favor of enrolling in computer programming classes at the local community college or — shudder — law school matriculation. Photographers and graphic artists, too, are turning to Lyft drivership and other side gigs to replace income lost to internet and other infringement. The issue is endemic but all is not lost. A few positive trends to look forward to in 2018…
A fair use recalibration may come to pass. As we have discussed in other columns, fair use, that most nebulous and miasmic of the copyright doctrines, which was boosted to almost absurd levels by the Secofair und Circuit’s Prince v. Cariou decision (holding, basically, that an artist, if famous enough, can create a “fair use” work by taking another artist’s original work without their consent and adding a couple of blue dots to it) is in dire need of a reset. Since Cariou, every infringer worth their right-click that is caught copying anything from anyone without consent has claimed that their use, like Richard Prince’s, is fair use. But, this year alone, at least three courts expressed substantial skepticism regarding the Cariou fair-use analysis. In one of these cases, which again involves Prince (and pertains to a Prince exhibition where he basically sold without permission prints of Instagram photographs posted by other people), Judge Sidney H. Stein, has preliminarily found Prince’s use to be unfair. And other courts have similarly criticized the decision as both contrary to the spirit of the Copyright Act and inconsistent with an artist’s exclusive right to create derivative works. So, perhaps 2018 will be the year when the fair-use pendulum swings back and the defense is applied in a fair-handed fashion, to promote criticism and education and not to deprive the original artist of the right to stop others from copying and profiting from their work.
Online antics will dominate a large part of the copyright conversation. The battle is still on between the tech folks, who are using their growing might to bully content creators into providing free or low-cost content, or, failing that, simply taking it, and the artists themselves, who feel their work has value and should be licensed or otherwise paid for by those who profit from its exploitation.
The fairness of payments to artists by streaming services like Spotify will be in the spotlight as streamers move to dominate the industry. For musicians that are not in the top 1% of the business, but who still continue to eke out a living as recording and touring artists, streaming royalties provide a meager income. But, compared to the alternative, which is no income, the artists have little choice. Spotify, worth approximately 16 billion dollars, will be challenged by the artists that and labels that hold the rights in regard to the music that provides the backbone to the streamer. The related issue of grant termination by musicians looking to recover rights in their songs will have the music space humming in 2018
On the internet accountability front, courts are gaining sophistication in regard to all things electronic and digital and should be in a better position in 2018 to see through business practices that are infringement-based but gussied up with tech trappings. We have seen courts recently reject without consent embedding and framing of third-party content. Next year, U.S. courts will likely review what liability attaches to the linking of third-party infringing content. Generally, if a website operator drives traffic to its site by providing links to infringing copies of music, photographs, and videos, and makes money from that traffic but is not technically the party that posted the material on the infringing links, it seems reasonable to hold that website operator liable for infringement, at least if the operator has reason to know that the links are to infringing content. Europe has already addressed the issue and found such conduct infringing, and the Ninth Circuit, earlier this year in Mavrix v. LiveJournal, issued an opinion reflecting the growing skepticism toward tech companies’ and websites’ claims that they have little to no control or authority over the content they publish, link to, and distribute. When you couple this legal trend with the public’s mounting skepticism regarding the increasingly monopolistic and predatory powers of certain tech industry players, there will certainly be developments on this front in 2018.
Finally, the trend toward recognizing artist’s Digital Millennium Copyright Act (DMCA) rights should continue. These claims primarily address situations where the infringer has removed the artist’s name, title, copyright notice, or metadata relating to the foregoing from a work before publishing it without consent. This claim carries penalties in addition to those for copyright infringement, and allows the artist to recover its costs and attorneys’ fees if it prevails. Unlike copyright claims, which require that the artist had registered its work before the infringement in order to recover fees, the DMCA statute does not recover prior registration in order for the artist to recover fees. As the vast majority of artists do not have the sophistication or resources to register, this ability to recover fees under the DMCA has allowed many artists to pursue claims that would have otherwise been unfeasible.
2017’s a wrap for this columnist. We will see you on the flip side. Until then, here’s hoping that 2018 will be a year of creation, collaboration, and lawful monetization.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.
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Source : https://abovethelaw.com/2017/12/its-a-wrap-what-to-expect-from-the-copyright-wars-in-2018/