Sunday, October 10, 2021

Snag And Be Damned

Each week, I read dozens of USA and international copyright-related columns, including media law, trademark law, technology insights, art law, proceedings of the USPTO, music policy, writing industry forums, and more, and I put together some of what I find most interesting and potentially relevant to writers.

This week, "art" jumped out at me.

As legal bloggers for Herrick Feinstein LLP  explain, there are differences in artists' rights in the USA versus, for instance in Italy.  In some European jurisdictions, an artist receives payment every time a copyrighted work of art is sold and resold. Not so in the USA.  Gabrielle C. Wilson, Howard N. SpieglerLawrence M. Kaye and Yale M. Weitz  write a thorough summary of art law rights in the USA.

Interestingly, museums usually try to obtain the permission of the artist/copyright owner before copying the artwork into catalogues or into posters and other advertisements. If that is an issue for catalogues and advertisements, is it a stretch to wonder if it could be an issue for cover art for self-published books if author-publishers do not make sure to obtain all the necessary rights and permissions for their cover art?

Another issue to be considered is the incidental or deliberate appearance of "street art" in photographs or advertisements.... or even on items of clothing. Or not!  Street artists have rights, even when they do not own the surface on which they apply their art.

Social-media-law expert legal blogger Robert B. Nussbaum for Saiber LLC's Trending Law Blog discusses a recent reversal of a liberal circuit's decision on whether or not it is copyright infringement to use Facebook's embedding tools to exploit someone else's video (in this case of an emaciated polar bear) in defiance of the copyright owner's clearly posted copyright notice.

Apparently, just because Facebook or Instagram make it possible for their users to do something (embed copyrighted works without permission) does not mean that Facebook's magic impunity umbrella will protect users from liability.

Also piling on Facebook (my characterizaation), legal bloggers Kyle Petersen and C. Linna Chen  of Loeb and Loeb LLP discuss the interesting case of an attractive (one infers) lady newscaster who found her photograph being used without her permission as part of an advertisement for a Facebook dating app. She sued Facebook and other platforms.  Facebook tried to hide behind Section 230, without success. 

Read all about it. What a terrible precedent it would have been if the lady had lost! Facebook could have been emboldened to snag any attractive face to use in its promotions for any other app or product or service. 

Imagine if you found your face or that of someone you love being used without permission or compensation to sell an activity or product that you do not endorse or approve! Maybe, also, be careful where you get the images that you put on your website and cover art.

Nevertheless, it is probably a better idea to peel away Section 230 protections and give the newly created CASE Act court a chance to work, than to give governments more power.

All the best,

Rowena Cherry 



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