Copyright Is Not Dead

David Bowie – TopPop 1974, AVRO – Beeld En Geluid – Wikimedia Commons CC BY-SA 3.0.

With David Bowie’s passing, the world lost a rock icon beyond compare. A musical innovator and stage and screen pioneer, Bowie challenged and expanded our sensibilities, standards and appreciation for his art. Ziggy Stardust, The Thin White Duke and The Man Who Fell to Earth left an indelible influence of originality and creativity on all those who followed and who are still to come.

Over a decade ago, though, this musical entrepreneur gave an interview to the New York Times in which he boldly foretold of the impending death of copyright in the face of progress, innovation and the changing of how music, in particular, is created and distributed:

I don’t even know why I would want to be on a label in a few years, because I don’t think it’s going to work by labels and distribution systems in the same way. The absolute transformation of everything that we ever thought about music will take place within 10 years, and nothing is going to be able to stop it. I see absolutely no point in pretending that it’s not going to happen. I’m fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing.

Perhaps fueled in part by his own experience of having been ripped off a decade earlier by an emerging rap artist known as Vanilla Ice, or perhaps simply being more in tune with the electronic age of music creation and distribution, Bowie was not off the mark in his foretelling of the prevalence of piracy in the Internet Age. Make no mistake, musical piracy is not simply a byproduct of e-commerce. In 1970, George Harrison composed his No. 1 hit, My Sweet Lord, but soon faced challenges, a trial, and ultimately disgorgement of earnings over its similarities to The Chiffon’s 1963 hit, He’s So Fine. What Bowie accurately recognized, however, is that with the Internet came access and expediency, facilitating both the discovery and acquisition of other artists’ works. Additionally, with emerging electronic technologies, the replication and manipulation of other artists’ works became easier. Music has not been the only booty of choice for modern day pirates, though, as photographers, writers, filmmakers, painters and many more find their works misappropriated with equally alarming frequency, often with the Internet and other digital technologies employed as the tools of the trade.

Fortunately, however, copyright law has not fully succumbed to the proliferation of piracy as an accepted normative standard for the creation of new works. The law continues to protect and reward originality and creativity, and stands as a sharp deterrent to unjustified copying. Courts continue to interpret and apply the law as written to new technologies, concepts and media, keeping it alive, fresh and vital. Those creative sorts who are in the know and have registered their copyrights prior to the thefts stand the most to gain, as the balance of power shifts markedly in their favor. Registration entitles them to proceed directly to court without delay, and allows the recovery of statutory damages (up to $150,000 for willful infringement) in the absence of actual damages, as well as attorneys’ fees (which often carries the additional benefit that attorneys are more likely to take their cases).

Artists across all industries therefore should be informed of the law’s parameters and be vigilant and proactive in using it to enforce and protect their rights. Many, in fact, continue to pave the way for others by standing up for their rights against the ripoff business-as-usual practices that have become all too commonplace and accepted unless challenged. Just last week, for example, a photographer took Richard Prince, the flagrant Instagram ripoff artist, to court (again) over his recent New York exhibition of art derived from others’ Instagram pictures. Earlier last year, a Roanoke journalist sued the state Republican Party and others for their use of a photograph lifted from her website in a recent political campaign. A Roanoke tattoo artist similarly has hauled the Macado’s restaurant chain into court to answer for its use of one of his tattoo designs on the restaurant’s Halloween merchandise and marketing campaign.

Sometimes the law is not clear. Sometimes there are shades of grey between the black and white letter of the law and its application to new and unique fact patterns. The law does not evolve on its own, though. It takes those practicing it, and the clients affected by it — and for whom it was designed — to advance their causes. At bottom, copyright law continues to survive in this age of piracy.

If you’re interested in learning more, join us at our January Shark Bite as we take a look at the evolving law of copyright and, in particular, examine a number of fun infringement cases that have made their way to the news headlines in recent years.