STEPHEN KRAMARSKYs article on WHAT IS FAIR USE:

20 Jul

A peer sent me a link. He asked my thoughts. He knows I am speaking up for 2D IP, ID and Commerce. IP? One of the rights the Founding Fathers gave us, a Property Right being stolen one webcrawler at a time. The first thing I did is track down attorney Kramarsky. Hi Five! An attorney who should be testifying before Congress but the Judiciary manages to find mostly voices of witnesses wanting to strip IP, Intellectual Property, owners of their rights, in lock step with the Register of Copyrights, ISPs and Search Engines. Got to wish I was doing the Witness Casting for the theatre the world calls Congress. Good one, here Congressmen Goodlatte and Upton!

Stephen Kramarsky wrote a lengthy article on What is Fair Use, suggesting that Google May Have The Answer. http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202610952208 . I answer. No. Google does not.

In the eyes of countless 2D IP creators, Google is their problem. Increasingly, so. Along with Yahoo, AOL, Bing, the list goes on. THOSE are the search engines revealed to persons in North America. What is not revealed are the multiple search engines in countries around the world using images removed without authorization or permission or license from 2D IP owners.

The question lawyers, IP and otherwise, should be addressing with clients wanting to use IP they themselves did not create, is not “Can I (the client) use this?” (without risking getting caught, but “why not do it yourself, make your own” or risk getting sued for Unauthorized Use, something lawyers are at risk for in these days of the Internet- removing a copyright owner’s 2D IP from the Internet, to make a point in their case, violating the IP Owners copyright and culpable of Unauthorized Use, themselves. Being a lawyer is not a license to steal, even IP.

Clients know there are laws protecting someone else’s work, keyword PROTECTING. Moreso than ever before, Copyright laws are used as guides on ‘how to steal IP and hopefully not get caught.’  The concerted effort in Congress by Search Engines and ISP lobbyists and wonks is to orchestrate  convincing hearings and presentations to Congress toward the Search Engines and ISPS goals of removing more and more Copyright ownership, to change Copyright ownership defined by time- Life+ 70- creating a GREAT NEW COPYRIGHT LAW that will protect and monetize their use of ORPHAN WORKS neutered technologically from 2D IP by webcrawlers and such.

There is a dirty secret the Search Engines and ISPS aren’t keen to admit to. They are behind advancing technologies creating the Orphan Works they want use of. In fairness, I have covered this topic in my comment filed with Maria Pallante. Rather than repeat myself, here… http://www.copyright.gov/orphan/comments/noi_10222012/Devorah-Carrie.pdf   Easier read than repeated.

Clients who want to make use of someone else’s work without license or permission should be told by their attorney out of the chute “ it isnt yours, go make it yourself but DON’T USE WHAT BELONGS TO SOMEONE ELSE. In the American courts, taking what doesn’t belong to you is called theft. END OF STORY.” If your client  was in China or India intending to steal someone’s IP, they’d be processed through the Criminal Courts, a model I want to see used  here in North America.

An honest attorney would tell his client, listen, you want my advice, you heard it. You get sued, you know how to find me for X dollars an hour. Go forth and pro-creative rather than putting time into figuring out IF you can get away with stealing, under the definition of FAIR USE.

FAIR USE is clearly defined. How a court adjudicates FAIR USE does come down to how well a lawyer communicates with the Arts Protecting Community, artists versed in the value of a copyright rather than referring only to case history.

Abusers of FAIR USE focus on the ‘how much can be used without being caught’ part of the definition, while 2D IP creators focus on loss of their income “(4) the effect of the use upon the potential market for or value of the work.”

Fact is, there is no market left for the 2D IP creator once webcrawlers have stolen their IP. Like my grandmother used to say, ‘why pay for milk if the cow gives it away for free.’  The term “Transformative” does not even belong in the equation. What the heck is “transformative?” If you take what is mine, no matter HOW you parse it, doll it up or otherwise, it was still MINE that you took. Go on to google gallery Images, search my name and Click. Transformative, my foot. Google is giving away for free, my images in Small, Medium, Large and Actual Size, usable as thumbnails or avatars or as large as the images can go hence putting representing Agencies like mine, and me, out of business.

On point and record for the value of “Transformative” is AP v Shepard Fairey. Shepard had a home run on Unauthorized Use until he opened his mouth outing himself for having used AP stringer, Manny Garcia’s photo of Obama at the George Clooney presser. Yes, back then, Obama was a “move, your blocking my shot” guy standing next to La George.  

The problem with many Law Review articles is they are being written by professors who aught to spend more time talking to 2D IP creators than writing articles. Theft of IP comes at a cost- to artists, to art institutions, to Creative Sorts of all kinds and connections. Anyone who is afraid to get out in the real world and make their living based on their smarts should not be tossing in their two cents worth until they try it themselves. 2D IP Creators are not only the entrepreneurs of the past but the way the economy is going under the STEAL THIS IP administration, owning one’s IP without having to fight tooth and nail for it may just be what keeps people out of the poorhouse, including salaried professors with tenure (or hoping for it) whose University wont be able to pay their salary or pension because students wont be able to attend… you got it… a modern day version of For The Want Of A Nail A Kingdom Is Lost…. faster even so in these days and times using Webcrawlers. Think of the Flying Monkey Army the Wicked Witch of the West sent out to terrorize the world outside of her castle, and their mission to bring Dorothy, Toto, the Tin Man, the Cowardly Lion and Straw Man back. THAT is what Webcrawlers are…. Nasty things that steal and destroy hopes, in the name of technological advancement.

Perfect 10 is a case that cost the 2D IP community, dearly. That decision CAN and will be undone. It comes down to lawyers with clients who understand the worth of their IP. Pornography is not even part of the equation. There is NO difference between a flesh and blood woman taking her top (and bottom) off for Perfect 10 or a sculpture down at the National Gallery of Art. A naked body is a naked body. What cost the case was understanding. License agreements clarify there is no such thing as transformative when it comes to the arts otherwise anyone drawing a mouse would be in violation, potentially of Mickey. Licensors portion off rights to licensees defining territories defined by land, use  and time. THAT puts an end to Transformative as a defense. Zada’s images, on any and all of the sites used on should have been won on that merit alone. That and, Judge Chin, the country was founded on the principles of the Ten Commandments. Thou Shalt Not Steal applies to everyone, including GOOGLE.

Google can maintain all it wants “increases the visibility of many works, while still protecting authors’ rights.” If GOOGLE wants to be a licensing agent for 2D IP (1) that is my idea so Google, pay the lady and (2) get in line and sign a contract with the creator other than that, otherwise, as the expression goes ‘one can put as much paint as you want on the ol’ search engines face, but a whore will always be a whore.’

A thief will always be a thief. 

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