Grabbing Customers' Copyrights

Starting with Medical Justice, certain physicians noticed that former patients were saying allegedly false and damaging things about them in online reviews. The sites that posted these reviews could not be sued for defamation, however, because the Communications Decency Act (“CDA”) creates a bright-line prohibition against such liability. See, 47 U.S.C. 230 (stating that Internet service providers (“ISPs”) are not publishers of third-party content and cannot be held liable as publishers for this content, also preempting state law claims such as defamation, 230(e)(3); this has no effect on intellectual property, however, 230(e)(2)). The sites, accordingly, left the reviews up and the doctors fumed.

One of these disgruntled doctors, Medical Justice founder Jeffrey Segal, realized that copyright law might provide a remedy where the CDA did not. Specifically, under the notice and takedown provisions of the Digital Millennium Copyright Act (“DMCA”), codified at 17 USC 512, sites will often gladly take down material that is alleged to infringe copyright. Unlike the CDA safe harbor for defamation, the DMCA only shields sites from copyright liability if they comply with takedown requests. A doctor who sent a takedown request under the DMCA would therefore be much more likely to get a troublesome patient's review removed.

Section 512, however, requires that takedown notices be sent by, or on behalf of, the copyright owner. The reviews are written by patients, not doctors. How do doctors get to be copyright owners for DMCA purposes? That's where Medical Justice comes in.

Using a “waiver” form Medical Justice developed, doctors ask patients to assign rights in their as-yet unwritten future Web comments, for the sole purpose of giving the doctor the ability to have it taken down under the DMCA. As Dr. Segal explained in an interview with protomag.com: “Web sites operating as platforms for outside commentary aren't liable for defamation suits ' but they are subject to copyright laws. Waivers assign copyright to the physician, so if the physician has asked all of her patients to sign, she can claim ownership of any anonymous review of her practice and ask that it be removed.” See, Charles Slack, “Medical Justice Waivers: Don't Tread on M.D.,” www.protomag.com, Fall 2009. Critiques of the Medical Justice copyright transfers include Jodie Graham (see, “The Doctor Will Be Right With You ' After You Sign over Your Copyright,” www.publicknowledge.org, June 28, 2010), and Mike Masnick (see, “The Ethical and Legal Problems of Having Patients Sign over Their Copyright on Doctor Reviews,” www.techdirt.com, June 9, 2010). Medical Justice sells its “Anti-Defamation Protection” program to physicians for $625 per year as a stand-alone product, and offers it free to doctors who join as full members of Medical Justice. See, www.medicaljustice.com/Web-defamation-purch1.aspx.

Apparently the Medical Justice physicians are happy to benefit from positive Internet reviews, but do not want to run the corresponding risk of giving their unsatisfied customers an electronic soapbox.

Burning Man

Burning Man also wants to avoid any unfortunate Web postings regarding the goings-on at its annual festival, but at least on the surface its concern seems less about stifling criticism than protecting the uninhibited atmosphere attendees have come to expect. The event, a week-long outdoor arts event held in the Black Rock desert of Nevada, describes itself as a “clothing-optional” “bastion of creative freedom” at which more than 50,000 attendees may gather to advance the principles of “radical inclusion, gifting, decommodification, radical self-reliance, radical self-expression, communal effort, civic responsibility, leaving no trace, participation, and immediacy.”

Because festival-goers express themselves in such radical and immediate fashion, photos and videos taken at the event could seriously compromise the asserted privacy rights of the persons depicted, if such images were widely circulated without the subjects' consent. Further, Burning Man's principle of decommodification would be incompatible with any commercial or advertising use of images from the festival, as recently occurred when an outdoor outfitter used Burning Man images on its Web site to sell camping equipment. As the festival put it: “We seek to protect [the event's] culture from unchecked commercialization or commodification, and to moderate an environment where participants' rights to privacy, free expression, and creative immediacy are given additional consideration by our community.”

One way to address this issue might be to forbid all photography and video, as is often done at entertainment events. That would be extremely difficult to police, however, in the age of omnipresent cellphone cameras and tiny Flip video recorders. It would also seem to fly in the face of the event's animating creative principles. On the other extreme, Burning Man could freely allow filming but require all attendees to sign a waiver allowing use of their likenesses. This latter approach could chill the freewheeling spirit of some attendees, however, and such attendees probably represent a significant segment of the Burning Man demographic.

Seeking Ownership

Seeking a middle ground between total image lockdown and total image anarchy, Burning Man instead chose a path much like the one adopted by Medical Justice: acquire an ownership stake in the potentially troublesome work. Under the policy, each ticket purchaser must agree to make only “personal use” of the images they create, and must also agree as follows:

I further assign to Burning Man a joint ownership in the copyright for images obtained at the event so that in the event any third party displays or disseminates any of my images in a manner not authorized by this agreement, Burning Man can enforce against the third party any restrictions concerning use of the images, and I appoint Burning Man as my attorney-in-fact to execute any documents necessary to effectuate such assignment.

The most significant departure from the Medical Justice approach seems to be the festival's assertion of co-ownership, rather than sole ownership, in attendees' works of authorship. This gives Burning Man standing to serve DMCA notices, but also leaves the creator of the work with the right to make “personal use.” The creator can therefore post the material any way he or she chooses without fear of a copyright infringement claim by its co-author, Burning Man, even if the posting might give rise to a breach of contract claim if it exceeds “personal use.”

The Burning Man image-control policy generated resistance among participants, however, and the festival amended it significantly in January 2011 to produce a somewhat less aggressive policy. See, Corynne McSherry, “Snatching Rights on the Playa,” www.eff.org, Aug. 12, 2009. The grant of co-ownership rights remains in place, as does the requirement that photographers themselves may only make “personal use” of their work, but the new policy at least ventures a definition of “personal use”:

“Personal use” of images, film or video means to share with friends and family, to display on personal [Web sites] (as long as your [Web site] does not sell any other product or service, and as long as your [Web site] does not purport or appear to be an official [Web site] of Burning Man or Black Rock City LLC), to display on photosharing [Web sites], and to display at art exhibits or similar exhibits. Social networking sites such as Flickr and Facebook are deemed “personal use” only if the display of the images, film or video on these sites are not used for the promotion or distribution of images with the intent to publicly display them beyond one's immediate network, and if one's immediate network is not inordinately large.

See, www.blog.burningman.com/digital-rights/updated-terms-and-conditions-for-2011.

Lady Gaga

Lady Gaga's version of the mandatory copyright assignment is a bit more straightforward: Photographers seeking press credentials for a concert or other photo op are required to sign a so-called “waiver” that provides as follows:

Photographer hereby acknowledges and agrees that all right, title, and interest (including copyright) in and to the Photograph(s) shall be owned by Lady Gaga and Photographer hereby transfers and assigns such rights to Lady Gaga.

The photographer is granted the right to display the image for four months on a particular blog or Web site, but can make no use in print or other media.

According to a March 3 report by TBD.com, a Lady Gaga staffer expressed surprise that any photographer would dream of asserting authorship in a photo of the singer in costume, presumably because the performer's outlandish appearance is itself the main work of “authorship” in any such photo. See, Andrew Beaujon and Jay Westcott, “Dear Photographers, Lady Gaga Wants the Copyright on Your Work,” www.tbd.com, March 3, 2011. The law is clear, however, that the subject of a photo is not an author (or even a co-author) of that photo, because a person's physical appearance is not a work of authorship, even the elaborate clothing and millinery for which the singer is famous would have to pass the test of conceptual separability, given the law's reluctance to protect such useful articles. See, Natkin v. Winfrey, 111 F.Supp.2d 1003 (N.D. Ill. 2000) (Oprah Winfrey held not a co-author of photos in which she was the subject); and Galiano v. Harrah's Operating Co., 416 F.3d 411 (5th Cir. 2005) (casino restaurant uniforms and hats resembling fanciful vegetables not protectable).

Whether or not Lady Gaga or her accoutrements are copyrightable, the issue may simply come down to bargaining power between a star performer who is able to impose such onerous terms and photographers who nevertheless line up for the opportunity to agree to them.

Conclusion

All three of the transactions described above require a signed, written document of transfer under '204 of the Copyright Act, but they seem to have provided for that, either by physical signature (in the case of Lady Gaga and Medical Justice) or by electronic click-on (for Burning Man). All three also operate on the assumption that a copyright may be assigned before the work at issue has even been created.

Addressing a somewhat different issue, the U.S. Copyright Office noted in a Dec. 7 ruling that “[u]ntil there is a work of authorship, there is no copyright interest, no transfer of that interest, and no author for whom exclusive rights (not to mention termination rights) can vest.” See, “Gap in Termination Provisions,” Nov. 26, 2010 (www.copyright.gov/fedreg/2010/75fr72771.pdf), and “Analysis of Gap Grants Under the Termination Provisions of Title 17,” Dec. 7, 2010 (www.copyright.gov/reports/gap-grant%20analysis.pdf). But even under this Copyright Office interpretation, the grant would presumably be deemed to take effect when the work is created, rather than failing altogether: “[A]s a matter of copyright law a transfer that predates the existence of the copyrighted work cannot be effective until the work of authorship (and the copyright) come into existence.” Id. at iii. Thus, the doctors of Medical Justice may not have a valid assignment of the work until it is created, but until it is created they don't really care. If the assignment kicks in once the work exists, as the Copyright Office seems to contemplate, these assignments of adhesion could well be effective as a matter of copyright law, unless a misuse or unconscionability argument could be made on public policy grounds.

If these agreements become more common, the courts may soon have an opportunity to test such arguments. As between Lady Gaga, Burning Man and Medical Justice, the physicians' restrictions appear most likely to raise public policy concerns inviting judicial intervention. Or perhaps self-help and self-regulation should be prescribed, such as: a) consumer groups publicizing the negative implications arising from censorship of patients' comments; b) patient exodus, or loss of potential patients, resulting from the adverse publicity; and c) a critical mass of participating physicians healing themselves.

What do the following have in common: 1) Grammy-winning pop singer and “fame monster” Lady Gaga; 2) the annual avant-garde Burning Man festival; and 3) a group of physician advocates called Medical Justice? There are no doubt many amusing answers to that question, but for present purposes the most relevant, and least amusing, is that all have recently taken unusually aggressive copyright positions against people (like photographers, festival attendees and patients) who dare to feature or refer to them in works of authorship. So, for example, if you are a photographer who wishes to shoot a few rolls at a Lady Gaga concert, you may only do so, says Gaga, if you agree in advance that the singer will own copyright in your photographs. If you want to shoot a video of your cousin's extravagant dance ritual at Burning Man, same deal, Burning Man owns it. If you are a patient of a participating Medical Justice doctor, you must pre-assign to the doctor the copyright in any online review you may ever write about that doctor's services. What's up, doc?

What's up is control, obviously, and the great lengths to which some will go to maintain, it even as they benefit from the wide-open, free-flowing viral information torrent of the Internet. These copyright acquisitions are not primarily motivated by the desire to exploit the works and make money, but rather by the desire to stop the public circulation of texts and images the new owners do not like.

Medical Justice

Starting with Medical Justice, certain physicians noticed that former patients were saying allegedly false and damaging things about them in online reviews. The sites that posted these reviews could not be sued for defamation, however, because the Communications Decency Act (“CDA”) creates a bright-line prohibition against such liability. See, 47 U.S.C. 230 (stating that Internet service providers (“ISPs”) are not publishers of third-party content and cannot be held liable as publishers for this content, also preempting state law claims such as defamation, 230(e)(3); this has no effect on intellectual property, however, 230(e)(2)). The sites, accordingly, left the reviews up and the doctors fumed.

One of these disgruntled doctors, Medical Justice founder Jeffrey Segal, realized that copyright law might provide a remedy where the CDA did not. Specifically, under the notice and takedown provisions of the Digital Millennium Copyright Act (“DMCA”), codified at 17 USC 512, sites will often gladly take down material that is alleged to infringe copyright. Unlike the CDA safe harbor for defamation, the DMCA only shields sites from copyright liability if they comply with takedown requests. A doctor who sent a takedown request under the DMCA would therefore be much more likely to get a troublesome patient's review removed.

Section 512, however, requires that takedown notices be sent by, or on behalf of, the copyright owner. The reviews are written by patients, not doctors. How do doctors get to be copyright owners for DMCA purposes? That's where Medical Justice comes in.

Using a “waiver” form Medical Justice developed, doctors ask patients to assign rights in their as-yet unwritten future Web comments, for the sole purpose of giving the doctor the ability to have it taken down under the DMCA. As Dr. Segal explained in an interview with protomag.com: “Web sites operating as platforms for outside commentary aren't liable for defamation suits ' but they are subject to copyright laws. Waivers assign copyright to the physician, so if the physician has asked all of her patients to sign, she can claim ownership of any anonymous review of her practice and ask that it be removed.” See, Charles Slack, “Medical Justice Waivers: Don't Tread on M.D.,” www.protomag.com, Fall 2009. Critiques of the Medical Justice copyright transfers include Jodie Graham (see, “The Doctor Will Be Right With You ' After You Sign over Your Copyright,” www.publicknowledge.org, June 28, 2010), and Mike Masnick (see, “The Ethical and Legal Problems of Having Patients Sign over Their Copyright on Doctor Reviews,” www.techdirt.com, June 9, 2010). Medical Justice sells its “Anti-Defamation Protection” program to physicians for $625 per year as a stand-alone product, and offers it free to doctors who join as full members of Medical Justice. See, www.medicaljustice.com/Web-defamation-purch1.aspx.

Apparently the Medical Justice physicians are happy to benefit from positive Internet reviews, but do not want to run the corresponding risk of giving their unsatisfied customers an electronic soapbox.

Burning Man

Burning Man also wants to avoid any unfortunate Web postings regarding the goings-on at its annual festival, but at least on the surface its concern seems less about stifling criticism than protecting the uninhibited atmosphere attendees have come to expect. The event, a week-long outdoor arts event held in the Black Rock desert of Nevada, describes itself as a “clothing-optional” “bastion of creative freedom” at which more than 50,000 attendees may gather to advance the principles of “radical inclusion, gifting, decommodification, radical self-reliance, radical self-expression, communal effort, civic responsibility, leaving no trace, participation, and immediacy.”

Because festival-goers express themselves in such radical and immediate fashion, photos and videos taken at the event could seriously compromise the asserted privacy rights of the persons depicted, if such images were widely circulated without the subjects' consent. Further, Burning Man's principle of decommodification would be incompatible with any commercial or advertising use of images from the festival, as recently occurred when an outdoor outfitter used Burning Man images on its Web site to sell camping equipment. As the festival put it: “We seek to protect [the event's] culture from unchecked commercialization or commodification, and to moderate an environment where participants' rights to privacy, free expression, and creative immediacy are given additional consideration by our community.”

One way to address this issue might be to forbid all photography and video, as is often done at entertainment events. That would be extremely difficult to police, however, in the age of omnipresent cellphone cameras and tiny Flip video recorders. It would also seem to fly in the face of the event's animating creative principles. On the other extreme, Burning Man could freely allow filming but require all attendees to sign a waiver allowing use of their likenesses. This latter approach could chill the freewheeling spirit of some attendees, however, and such attendees probably represent a significant segment of the Burning Man demographic.

Seeking Ownership

Seeking a middle ground between total image lockdown and total image anarchy, Burning Man instead chose a path much like the one adopted by Medical Justice: acquire an ownership stake in the potentially troublesome work. Under the policy, each ticket purchaser must agree to make only “personal use” of the images they create, and must also agree as follows:

I further assign to Burning Man a joint ownership in the copyright for images obtained at the event so that in the event any third party displays or disseminates any of my images in a manner not authorized by this agreement, Burning Man can enforce against the third party any restrictions concerning use of the images, and I appoint Burning Man as my attorney-in-fact to execute any documents necessary to effectuate such assignment.

The most significant departure from the Medical Justice approach seems to be the festival's assertion of co-ownership, rather than sole ownership, in attendees' works of authorship. This gives Burning Man standing to serve DMCA notices, but also leaves the creator of the work with the right to make “personal use.” The creator can therefore post the material any way he or she chooses without fear of a copyright infringement claim by its co-author, Burning Man, even if the posting might give rise to a breach of contract claim if it exceeds “personal use.”

The Burning Man image-control policy generated resistance among participants, however, and the festival amended it significantly in January 2011 to produce a somewhat less aggressive policy. See, Corynne McSherry, “Snatching Rights on the Playa,” www.eff.org, Aug. 12, 2009. The grant of co-ownership rights remains in place, as does the requirement that photographers themselves may only make “personal use” of their work, but the new policy at least ventures a definition of “personal use”:

“Personal use” of images, film or video means to share with friends and family, to display on personal [Web sites] (as long as your [Web site] does not sell any other product or service, and as long as your [Web site] does not purport or appear to be an official [Web site] of Burning Man or Black Rock City LLC), to display on photosharing [Web sites], and to display at art exhibits or similar exhibits. Social networking sites such as Flickr and Facebook are deemed “personal use” only if the display of the images, film or video on these sites are not used for the promotion or distribution of images with the intent to publicly display them beyond one's immediate network, and if one's immediate network is not inordinately large.

See, www.blog.burningman.com/digital-rights/updated-terms-and-conditions-for-2011.

Lady Gaga

Lady Gaga's version of the mandatory copyright assignment is a bit more straightforward: Photographers seeking press credentials for a concert or other photo op are required to sign a so-called “waiver” that provides as follows:

Photographer hereby acknowledges and agrees that all right, title, and interest (including copyright) in and to the Photograph(s) shall be owned by Lady Gaga and Photographer hereby transfers and assigns such rights to Lady Gaga.

The photographer is granted the right to display the image for four months on a particular blog or Web site, but can make no use in print or other media.

According to a March 3 report by TBD.com, a Lady Gaga staffer expressed surprise that any photographer would dream of asserting authorship in a photo of the singer in costume, presumably because the performer's outlandish appearance is itself the main work of “authorship” in any such photo. See, Andrew Beaujon and Jay Westcott, “Dear Photographers, Lady Gaga Wants the Copyright on Your Work,” www.tbd.com, March 3, 2011. The law is clear, however, that the subject of a photo is not an author (or even a co-author) of that photo, because a person's physical appearance is not a work of authorship, even the elaborate clothing and millinery for which the singer is famous would have to pass the test of conceptual separability, given the law's reluctance to protect such useful articles. See , Natkin v. Winfrey , 111 F.Supp.2d 1003 (N.D. Ill. 2000) (Oprah Winfrey held not a co-author of photos in which she was the subject); and Galiano v. Harrah's Operating Co. , 416 F.3d 411 (5th Cir. 2005) (casino restaurant uniforms and hats resembling fanciful vegetables not protectable).

Whether or not Lady Gaga or her accoutrements are copyrightable, the issue may simply come down to bargaining power between a star performer who is able to impose such onerous terms and photographers who nevertheless line up for the opportunity to agree to them.

Conclusion

All three of the transactions described above require a signed, written document of transfer under '204 of the Copyright Act, but they seem to have provided for that, either by physical signature (in the case of Lady Gaga and Medical Justice) or by electronic click-on (for Burning Man). All three also operate on the assumption that a copyright may be assigned before the work at issue has even been created.

Addressing a somewhat different issue, the U.S. Copyright Office noted in a Dec. 7 ruling that “[u]ntil there is a work of authorship, there is no copyright interest, no transfer of that interest, and no author for whom exclusive rights (not to mention termination rights) can vest.” See, “Gap in Termination Provisions,” Nov. 26, 2010 (www.copyright.gov/fedreg/2010/75fr72771.pdf), and “Analysis of Gap Grants Under the Termination Provisions of Title 17,” Dec. 7, 2010 (www.copyright.gov/reports/gap-grant%20analysis.pdf). But even under this Copyright Office interpretation, the grant would presumably be deemed to take effect when the work is created, rather than failing altogether: “[A]s a matter of copyright law a transfer that predates the existence of the copyrighted work cannot be effective until the work of authorship (and the copyright) come into existence.” Id. at iii. Thus, the doctors of Medical Justice may not have a valid assignment of the work until it is created, but until it is created they don't really care. If the assignment kicks in once the work exists, as the Copyright Office seems to contemplate, these assignments of adhesion could well be effective as a matter of copyright law, unless a misuse or unconscionability argument could be made on public policy grounds.

If these agreements become more common, the courts may soon have an opportunity to test such arguments. As between Lady Gaga, Burning Man and Medical Justice, the physicians' restrictions appear most likely to raise public policy concerns inviting judicial intervention. Or perhaps self-help and self-regulation should be prescribed, such as: a) consumer groups publicizing the negative implications arising from censorship of patients' comments; b) patient exodus, or loss of potential patients, resulting from the adverse publicity; and c) a critical mass of participating physicians healing themselves.