Friday, May 29, 2015

Miss Appropriation: Hot Punk Rock Girls Naked

Want to see "hot punk rock girls naked"? The SuicideGirls is a website where “alternative” models post photos of themselves. Those of you who have read my book, Issues in Internet Law: Society, Technology, and the Law, already know that a photographer owns the copyright in any photograph he or she takes, so if a model uploads a selfie to the Internet, then she holds the copyright to that photo. It’s a simple concept, but where the SuicideGirls are concerned, it could mean the difference between $90 and $90,000.

The copyright holder has certain exclusive rights, including the right to control the reproduction, distribution, display, and performance of the copyrighted work. The Copyright Act also grants the copyright owner the right to prepare derivative works based on the copyrighted material. It’s that last right where things get interesting. Along comes infamous appropriation artist Richard Prince. The Museum of Modern Art defines appropriation as “the intentional borrowing, copying, and alteration of pre-existing images and objects.” In other words, Prince takes other people’s work, makes a small change or represents it in a different way, and resells it for big money. Dickie-boy took images from Patrick Cariou’s book Yes Rasta without permission and used them in a series of collages, selling one for about $2.5 million.

Dickie-boy’s latest project is called “New Portraits”. He scours Instagram for pictures of strangers that they uploaded – mostly of young women in seductive or vulnerable poses – adds a few sentences of commentary beneath them, blows them up into large prints, and displays them in museums and sells them. “New Portraits” ran at the Gagosian Gallery in New York City from September through October 2014, displaying 38 portraits featuring photos from his Instagram feeds that Dickie-boy had taken of other people’s images, without their permission. Vogue magazine describes it as Robin Hood in reverse because Dickie-boy is “stealing from the masses and feeding it to the rich,” as most of the subjects in the photos he’s appropriated couldn’t afford to buy the prints of themselves at the prices he’s selling them. Worse, the people pictured in their own photos appropriated by Dickie-boy have no way to respond to whatever snarky or sleazy comment he has placed below their image for the world to see.

In the case of Cariou’s book, the author sued Prince for copyright infringement. After all, those were Cariou’s copyrighted photos Dickie-boy had used to make his collages. But Dickie-boy claimed it was fair use. “Fair Use” is an affirmative defense under copyright law. That means someone sued for copyright infringement can plead as a defense that it was fair use and be allowed to use the copyrighted material. The problem is that fair use is decided on a case-by-case basis by the judge; one has to use the work first and then find out from the court if it was permissible to do so. There are certain guidelines judges use to determine fair use: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect on the copyrighted work's value.

In the Cariou case, the U.S. Court of Appeals for the Second Circuit referred to a Supreme Court decision, Campbell v. Acuff-Rose Music Inc., in which the band 2 Live Crew had been sued for violating Roy Orbison’s copyright on his song “Pretty Woman” after it released a parody with different lyrics. The Supreme Court found the parody “departed markedly from the Orbison lyrics, producing otherwise distinctive music.” This, it held, was a transformative use and therefore a fair use of the copyrighted material. Using that rationale, the Second Circuit ruled that most of Prince’s collages were transformative uses and did not violate Cariou’s copyright.

I’ve always found the concept of transformative use troubling. The idea that someone can take another person’s work, tweak it, and then profit from it seems to fly in the face of U. S. copyright law. For example, if I take a copyrighted bestseller and change the names of all the characters and the locations of all the scenes, and republish it under my name, I would likely be sued for copyright infringement… and laughed at, were I to claim it was a fair use because I had transformed the work. Remember, the Copyright Act grants the copyright owner the right to prepare derivative works based on the copyrighted material. Aren’t all transformative works derived from the original? If that’s the case, then the copyright holder should have the right to control or prevent any works derived from the original (unless they fall under the four factors traditionally used by courts to define fair use).

Last year, the U.S. Court of Appeals for the Seventh Circuit ruled that ‘transformative use’ alone is insufficient for a finding of fair use. It noted, in Kienitz v. Sconnie Nation, “to say that a new use transforms the work is precisely to say that it is derivative.” So there appears to be a split among the circuits on the issue of transformative use. In the meantime, Dickie-boy Prince is making millions appropriating other people’s work and tweaking it. He sold prints of the SuicideGirls’ Instagram photos for $90,000 a pop. The SuicideGirls decided against suing the multi-millionaire appropriation artist, opting instead to fight fire with fire: they released their own blown-up prints, identical to the prints Richard Prince is selling, but for only $90. In a side-by-side comparison ad, the SuicideGirls state both are 67x55, both are inkjet on canvas, but one’s “profits go to rich art gallery owner and millionaire ‘artist’” while the others are “sold by the actual people who created the image and profits go to charity.”

On their Facebook page, the SuicideGirls wrote, “Do we have Mr. Prince’s permission to sell these prints? We have the same permission from him that he had from us. ;)”  Sounds like a fair use to me.

Friday, May 22, 2015

The Killing Joke

The Killing Joke is the title of a pivotal Batman comic book in which the Joker bursts into Police Commissioner Gordon’s home and shoots his daughter Barbara – who is secretly Batgirl – permanently paralyzing her. It was a shocking, brutal, heinous act of a depraved heart, worthy of the legislators of Colorado.

You may recall the Joker’s connection to Colorado. As I wrote in my blog entitled The Dark Night Rises on the day it occurred, a murderous sociopath dressed as the Joker walked into a movie theater in Aurora, Colorado and opened fire on the audience viewing the premiere of the Batman movie, “The Dark Knight Rises”. The gunman, dressed in black body armor and a gas mask, lobbed gas canisters into the theater, creating panic and confusion. He then sprayed the trapped movie-goers with a hail of bullets from an array of weapons that included an AR-15 assault rifle, a Remington 870 12-gauge shotgun, and a .40 caliber Glock handgun. Barbara Gordon got off lightly compared to his victims. This pathetic excuse for a human being, truly a waste of his father’s sperm, killed 12 people –  including a four-month-old infant – and wounded 58 others. Today, he is in a courtroom on trial.

Someone else has been in the courtroom throughout the trial with him. Sandy Phillips wears a green scarf to court every day. It belonged to her 24-year-old daughter, Jessica Ghawi… whose brain matter was scattered across the popcorn ridden floor of the Aurora movie theater that day. She’s sat in stoic silence, as her daughter’s friends described her last moments of life before she was butchered in what should have been a safe place: a movie theater. It’s a place where, until now, violence was relegated to the screen, and parents didn’t think twice about their children’s safety. After Aurora, our naïveté was banished. No place is safe. Not even the most prosaic venues that fill our lives: not our offices, coffee shops, shopping malls, or even movie theaters. Not even elementary schools. Parents kiss their children goodbye each morning, not merely because they love them, but because in the back of their mind a small but persistent voice reminds them this could be the day they send their child off to Columbine, or Sandy Hook, or even just the local movie theater.

Jessica’s mother wanted to hold someone responsible. Not merely the obvious perpetrator of the crime, but those she believed had facilitated his murder spree: the Websites that had sold the guns he used to kill her daughter and the others. So Sandy sued them in federal court in Colorado … and lost. You might think that was the end of the story. But you’d be wrong; it was only the beginning.

The gun lobby is a powerful force, both in federal government, and in many states and  state legislatures. In Colorado, the legislature passed a law that applied only to cases brought against gun manufacturers. The statute is called The Protection of Lawful Commerce in Arms Act and provides if the party suing a gun manufacturer or retailer loses the case, then that party is responsible for all the legal fees. So far, the only plaintiffs to have been penalized under this Draconian statute are Sandy and her husband, Lonnie. Senior U.S. District Judge Richard P. Matsch dismissed the case under both Federal and Colorado laws designed to shield gun manufacturers and retailers from liability for injuries caused by individuals who buy their products. But he didn’t stop there. Following the Colorado statute, he ruled that these grieving parents must pay approximately $250,000 to the Websites that sold the guns that killed their daughter.

It sounds like a sick joke. But it’s not. It’s a killing joke. It’s an affront to decency and humanity. It’s a monument to naked ambition and greed that enable lobbyists to buy and sell our legislators like Batman trading cards. It is a sign that our society, now more than ever, truly needs a caped crusader to restore justice. But the Dark Knight is mere fantasy; the reality is that the dark nights that Sandy and Lonnie Phillips, and the other families of the Aurora theater killer’s victims, must face for the rest of their lives are eclipsed by the even darker days brought about by the people whom Colorado voters elected to serve them, but who instead sold their souls to the gun lobbyists.

Friday, May 15, 2015

The Emperor’s Clothes

When I was young, my friends wanted to grow up to be rich and famous. Not me; “I’ll settle for rich and unknown,” I told them. I’m a private person and I value my privacy. As a writer, I may have shared my thoughts when I was younger, and my wisdom (once I had lived long enough to have attained any) now that I’m older, but I've always shielded my personal life from public view. Again, as a writer, I believe it is the content of my words and not the ego of the individual who pens them that should be promoted.

I’m not famous. I’m not a celebrity. And I don’t want to be. Of course, I’d like to have lots of people say they like and appreciate my writing, but understand, there’s a difference between seeking admiration for the product of one’s hard work and effort, and seeking admiration for one’s self as an individual.

I have many younger friends who belong to a different generation from mine. They are part of the social media generation that has adopted Andy Warhol’s famous aphorism that “in the future everyone will be famous for 15 minutes” as its mantra. For these people, becoming famous is the goal, rather than a byproduct of having accomplished something notable. Social media provides them with the tools to achieve this. Self-worth and self-esteem are established, not by what one has actually accomplished, but rather by popularity, which is gauged by how many Facebook friends, Twitter followers, and YouTube views one has.

If my young friend has 3,000 Facebook “friends”, 5,000 followers on Twitter, and 6,500 strangers watching her homemade videos, she believes she is a celebrity. Never mind that practically everyone else using social media can boast the same statistics. In her mind, she is famous and has a following hanging on her every word. When she posts, or tweets, or vlogs, she promotes her expertise on that topic. It might be makeup, or cooking, or marketing, or even writing. She uses social media to spread the word to an ever-increasing audience that she is a famous expert on her chosen topic. Soon, she even believes it herself.

But the truth is, the emperor has no clothes. All these people marketing themselves through social media are actually hyping themselves rather than their slim or nonexistent accomplishments. They call it “building the brand”. It’s a huge ego stroke that makes them feel as though they’re riding on top of the world… Until someone points out the truth: She knows as much about makeup, or cooking, or marketing, or writing, as anyone else. She’s adequate, but certainly not an expert, and famous only in her own mind and well known among a small niche audience.

After such a buildup and such self-delusion, the truth can be devastating to the ego. When she realizes her makeup tips aren't revolutionary, her recipes are only adequate, her marketing skills are no better than anyone else’s, or her writing is mediocre, she will be mortified. Like the emperor who paraded around town showing off his new suit when in fact he was naked the whole time, she too will realize how fraudulent the image of herself she has been promoting truly is.

The Internet is unforgiving. I cringe whenever I see a child sharing his or her god-awful artwork, poetry, prose, or singing online, knowing how embarrassed he or she will be years later upon realizing how terrible their early efforts were and how many people they showed it to. It’s even worse when the person doing the promoting is an adult.

It takes many years of practice before one is ready for prime time. In the pre-Internet days, people had the luxury of time to develop and refine their skills. Today, ready or not, they jump right in, seeking instant fame, fortune, or notoriety. And sometimes, once they realize they can’t live up to their own self-hype, their mortification and depression become so great that they can no longer live with it. They built themselves up to be famous, they told the world how great they are, and now they realize they’re not. And some young people who have everything to live for decide suicide is their only option.

It’s okay to be relatively unknown. It’s okay to do whatever it is you do, no matter how well you do it. But it’s not okay to develop delusions of grandeur and promote them through social media. And it’s not okay to kill yourself when you discover you can’t live up to the unrealistic images you’ve created.

Friday, May 8, 2015

“I’m Not An Expert, But…”

My television set has a few new dings in it as a result of my flawless aim and utter vexation with yet another annoying TV commercial. This time, it’s Comcast who is driving me to reach for the nearest object to throw at the TV. The cable company has a new commercial featuring a cute little black girl who tells us “It makes me happy to go on the computer. I like feeling… smart!” No, sweetheart, you may be cute, adorable even, but logging on to the Internet doesn't make you smart anymore than walking into a library does. Osmosis only works for plants; humans have to absorb knowledge the hard way: through the process of learning.

But the Comcast little girl is not alone in her misconception that access to information equals intelligence. A recent study by the American Psychological Association found that “searching the Internet for information may make people feel smarter than they actually are.” Even more astounding, people felt smarter even when their search for knowledge turned up empty. The researchers were shocked to discover that “study participants had an inflated sense of their own knowledge after searching the Internet even when they couldn't find the information they were looking for.”

One of the researchers interpreted this result as being due to the fact that the World Wide Web gives users “access to the world’s knowledge at their fingertips” and it becomes easier to confuse their own knowledge with this external source. He cautioned this may lead people to be “wildly inaccurate about how much they know and how dependent they are on the Internet.”

An inflated sense of personal knowledge can be dangerous. We all laughed at Holiday Inn Express’ “Stay Smart” ad campaign, in which ordinary people with no special knowledge or training were able to perform amazing feats requiring such knowledge by appending
 its well-known punch line: “No, I’m not a [doctor, nuclear physicist, etc.] but I did stay at a Holiday Inn Express last night.” But in real life, as the study researcher notes, “It could be important for people to distinguish their own knowledge and not assume they know something when they actually don't.” Ya think?

Not only does searching the Internet create an illusion of personal knowledge, but the ego boosting effect is exacerbated by the ever-increasing use of smartphones to access the Web. Having portable access to the world’s font of knowledge further inflates people’s perception of their own intelligence. We've all experienced this when discussing a topic over drinks with a group of friends when one will whip out a smart phone and brag, “I know the answer to that.”

Of course, you can rely on everything you read in my column, even if I’m not an adorable little black girl. After all, I have a high-speed Internet connection and I did sleep in a Holiday Inn Express last night.

Friday, May 1, 2015

Water, Water, Everywhere

Dateline: California, Spring 2015. California is in the grips of what may be the worst drought in its history. Four years into the natural disaster exacerbated by global climate change, Gov. Jerry Brown has declared an emergency and mandated citizens curtail their water consumption by 25 percent – All citizens except for those engaged in agriculture, which surprisingly accounts for 80 percent of the state’s water usage. It seems someone had the not-so-bright idea that the desert would be an ideal place for agriculture, especially for crops like almonds, which require a gallon of water to grow each individual nut. Perhaps it was the same person who had the nutty idea to exempt crop growers from any restrictions on water use. This leads to an interesting math conundrum: if every non-agricultural Californian stopped using every drop of water, the state would only decrease its usage by 20 percent – still short five percent of the governor’s mandated goal, since the crop growers are not subject to any restrictions. Doomsayers are predicting the imminent demise of California, not caused by earthquakes severing the landmass into the ocean, but rather by drought.

For decades, the running joke had been that an earthquake would split the San Andreas Fault, sliding California into the Pacific Ocean and carving out valuable beachfront property along the newly-formed Nevada coastline. Apparently nature had other plans. After all, who could have predicted a desert would run out of water? Such a shame there’s no source of water anywhere near California. Or is there?

California has the longest coastline of any state in the Union. Its coastline stretches 1,100 miles, separating the drought-stricken state from the largest ocean the world. The Pacific Ocean covers 60,060,700 square miles – 28 percent of the entire planet. That’s a lot of water. And the state of California sits next to it. There’s just one problem: it’s saltwater. Wouldn't it be wonderful if someone invented a way to remove salt from saltwater to make it safe to drink? Think of all the almonds California farmers could grow with 60 million square miles of potable water. What a shame there’s no way to do that. Or is there?

Desalinization isn't new; men have been doing it since ancient times. They've had to, since only one percent of the planet’s water is fresh water. There are many methods of desalinization: heat distillation, ion extraction, freezing desalinization, solar humidification, and reverse osmosis. I won’t bore you with the details of each method – even though I find them rather fascinating. Suffice it to say, the technology exists to turn saltwater into drinking water.

But the doomsayers are joined by their cousins, the naysayers, who proclaim desalinization is too expensive; it will adversely affect marine life; and it results in briny waste. But are these objections legitimate? While desalinization is expensive – construction of a desalinization plant can cost up to $450 million – how expensive would the collapse of California’s economy be? California’s gross domestic product (GDP) is $2 trillion; if it were a country, it would have the eighth highest GDP in the world, coming in ahead of Russia. Can California, or the nation, truly afford to tell Californians to pack up and “Go East, young man”? Wouldn't it be less expensive in the long run to construct desalinization plants along the coastline? Such an infrastructure project would also help the economy by decreasing unemployment. While some marine life might be affected, it would literally be a drop in the ocean. Remember, the Pacific Ocean covers 28 percent of the entire planet.

Briny waste is another matter. Every two gallons of water desalinized results in one gallon of fresh water and one gallon of salty brine. The brine can be returned to the ocean in a location that allows it to be dispersed quickly so its environmental effect is minimized. Brine can be recycled into saltcrete, which is put into an asphalt mixture for making roads. It can be turned into Epsom salt. Brine can also be used as salt to de-ice roads. 

Desalinization is not a perfect answer to California’s drought problem. Care will have to be taken in the disposal of the brine byproduct to prevent ecological damage to marine life. But it is an answer. The impractical alternative is to reverse Horace Greeley’s exhortation for manifest destiny and abandon the sere lands of the West. However, it is inconceivable that Americans would be willing to give up the dream factories of Hollywood and Disneyland.

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