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PaperclipPerfector  3mo ago (text post)   30112 thread views

Culture War Roundup for the week of August 12, 2024

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Just the act of drawing something trademarked isn't illegal by itself though?

Yes, it is.

Copyright literally is the right to make copies. If little Timmy draws a picture of Mario for his fridge, it’s within Nintendo’s legal rights to issue Timmy with a takedown notice and threats of legal action if he does not comply.

Now nobody does that, because you’d have to be nuts, but copyright law is way more extensive than you’d think.

Copyright law is truly insane and makes criminals of us all.

From "Infringement Nation: Copyright Reform and the Law/Norm Gap" by John Tehranian (h/t: @naraburns):

To illustrate the unwitting infringement that has become quotidian for the average American, take an ordinary day in the life of a hypothetical law professor named John. For the purposes of this Gedankenexperiment, we assume the worst-case scenario of full enforcement of rights by copyright holders and an uncharitable, though perfectly plausible, reading of existing case law and the fair use doctrine. Fair use is, after all, notoriously fickle and the defense offers little ex ante refuge to users of copyrighted works.

In the morning, John checks his email, and, in so doing, begins to tally up the liability. Following common practice, he has set his mail browser to automatically reproduce the text to which he is responding in any email he drafts. Each unauthorized reproduction of someone else’s copyrighted text—their email—represents a separate act of brazen infringement, as does each instance of email forwarding. Within an hour, the twenty reply and forward emails sent by John have exposed him to $3 million in statutory damages.

After spending some time catching up on the latest news, John attends his Constitutional Law class, where he distributes copies of three just-published Internet articles presenting analyses of a Supreme Court decision handed down only hours ago. Unfortunately, despite his concern for his students’ edification, John has just engaged in the unauthorized reproduction of three literary works in violation of the Copyright Act.

Professor John then attends a faculty meeting that fails to capture his full attention. Doodling on his notepad provides an ideal escape. A fan of post-modern architecture, he finds himself thinking of Frank Gehry’s early sketches for the Bilbao Guggenheim as he draws a series of swirling lines that roughly approximate the design of the building. He has created an unauthorized derivative of a copyrighted architectural rendering.

Later that afternoon, John attends his Law and Literature class, where the focus of the day is on morality and duty. He has assigned e.e. cumming’s 1931 poem i sing of Olaf glad and big to the students. As a prelude to class discussion, he reads the poem in its entirety, thereby engaging in an unauthorized public performance of the copyrighted literary work.

Before leaving work, he remembers to email his family five photographs of the Utes football game he attended the previous Saturday. His friend had taken the photographs. And while she had given him the prints, ownership of the physical work and its underlying intellectual property are not tied together. Quite simply, the copyright to the photograph subsists in and remains with its author, John’s friend. As such, by copying, distributing, and publicly displaying the copyrighted photographs, John is once again piling up the infringements.

In the late afternoon, John takes his daily swim at the university pool. Before he jumps into the water, he discards his T-shirt, revealing a Captain Caveman tattoo on his right shoulder. Not only did he violate Hanna-Barbera’s copyright when he got the tattoo—after all, it is an unauthorized reproduction of a copyrighted work—he has now engaged in a unauthorized public display of the animated character. More ominously, the Copyright Act allows for the “impounding” and “destruction or other reasonable disposition” of any infringing work. Sporting the tattoo, John has become the infringing work. At best, therefore, he will have to undergo court-mandated laser tattoo removal. At worst, he faces imminent “destruction.”

That evening, John attends a restaurant dinner celebrating a friend’s birthday. At the end of the evening, he joins the other guests in singing “Happy Birthday.” The moment is captured on his cellphone camera. He has consequently infringed on the copyrighted musical composition by publicly performing the song and reproducing the song in the video recording without authorization. Additionally, his video footage captures not only his friend but clearly documents the art work hanging on the wall behind his friend—_Wives with Knives_—a print by renowned retro-themed painter Shag. John’s incidental and even accidental use of Wives with Knives in the video nevertheless constitutes an unauthorized reproduction of Shag’s work.

At the end of the day, John checks his mailbox, where he finds the latest issue of an artsy hipster rag to which he subscribes. The ’zine, named Found, is a nationally distributed quarterly that collects and catalogues curious notes, drawings, and other items of interest that readers find lying in city streets, public transportation, and other random places. In short, John has purchased a magazine containing the unauthorized reproduction, distribution, and public display of fifty copyrighted notes and drawings. His knowing, material contribution to Found's fifty acts of infringement subjects John to potential secondary liability in the amount of $7.5 million.

By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges). There is nothing particularly extraordinary about John’s activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, barring last minute salvation from the notoriously ambiguous fair use defense, he would be liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file-sharing. Such an outcome flies in the face of our basic sense of justice. Indeed, one must either irrationally conclude that John is a criminal infringer—a veritable grand larcenist—or blithely surmise that copyright law must not mean what it appears to say. Something is clearly amiss. Moreover, the troublesome gap between copyright law and norms has grown only wider in recent years.

Copyright literally is the right to make copies. If little Timmy draws a picture of Mario for his fridge, it’s within Nintendo’s legal rights to issue Timmy with a takedown notice and threats of legal action if he does not comply.

It'd be within Nintendo's legal rights to do such a thing, but it'd also be pretty easy for Timmy to defend himself with the Fair Use defense in the USA. Fair Use used to only be something that could be invoked defensively, but in 2015, the US 9th circuit court of appeals ruled that it was an expressly authorized right and exception to copyright (IANAL, so I don't know the exact difference this makes in practice), according to the Fair Use Wiki page.

There are 4 primary factors to consider when determining if some unauthorized copying falls under Fair Use, though other factors may also be considered:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
  2. the nature of the copyrighted work.
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. the effect of the use upon the potential market for or value of the copyrighted work.

1 and 4 would be the most relevant for Timmy. It's not for nonprofit educational purposes, but neither is it commercial, and Timmy could argue that it served the educational purpose of him getting practice in drawing. And it's also almost certain not to have any effect on the potential market or value of any Mario property owned by Nintendo.

In the case of drawing fanart of Mario (versus recreating a specific official art of Mario), I believe trademark law, not copyright law, would apply, and Timmy would have an even stronger defense, since trademark infringement is based largely around the likelihood to confuse the audience or a customer, and Timmy's picture hanging on his fridge will almost certainly not do that.

The law can be bizarre and counterintuitive, but I believe it's not so rigid that someone drawing fanart of a famous character to hang on his fridge can be considered legally infringing just because of some technicalities. In the US, the people who write the laws and the justices who interpret them generally tend to understand that the purpose of copyright isn't to give creators exclusive rights to create copies, but rather to incentivize creators to create more and better things by giving them greater ability to monetize their creations through granting them certain exclusive rights to create copies, and this plays out with Fair Use. With trademark law, the purpose isn't to give companies exclusive rights to produce copies of certain logos or characters or etc., it's to help consumers avoid confusion by making sure that only certain companies get to publish certain logos or characters or etc., and since some unpublished fanart of a trademarked character simply can't cause customer confusion, there's no way that Timmy would lose a case against Nintendo in this.

Of course, the mere threat of lawsuit could be enough in many cases.

I see. In Sweden you have the explicit right to make private copies of publicly available material.

There's some protection for that in the US (see e.g. the RIAA vs Diamond) but not unambiguously enough (hence the RIAA vs Diamond).

Disney has done stuff like that in the past though, IIRC.

Yeah, they’re notably aggressive about enforcing their copyright. The fact that most companies don’t have the resources or don’t prioritize enforcing their copyright as much has led to a lot of people underestimating how extensive copyright actually is.

Im not a lawyer. But i think selling a subscription service for something explicitly marketed with pics like mario drinking beer, is very different from just drawing it. They're making money with these drawings, and also damaging the brands.

Obviously they can't use trademarked stuff in the marketing but the model being able to produce trademarked characters isn't meaningfully different from Photoshop or internet browsers dreaded by NTF-fans feature "right-click save as" unless we consider the model to be agentic.

I wouldn't consider the model agentic, but it seems meaningful that every other AI image generator specifically blocks this kind of stuff, whereas this one not only allows it, but seems to encourage it, with a sort of "wink wink, nudge nudge, there are no rules!" marketing. And in fact it still has rules, lots of them, it's just this one rule that it bypasses. So it seems like they intentionally built a tool that has "trademark violation" as its main use case. If nothing else, they're distributing images that violate trademark, since all those images come off of their web servers.

So is every cloud service.

It seems incredibly likely that after the cease and desist goes out later this week, Grok is neutered, but in the meantime everyone has heard about Grok.

It is if they want to monetize it (and presumably copyright lawyers would argue it serves some kind of promotional purpose for for-profit Musk businesses even if they don’t).

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