Aggressive Copyright Positions by Lady Gaga, Burning Man Festival

Burning Man, for example, 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, de-commodification, 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 de-commodification 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 website to sell camping equipment. As the festival put it, “[w]e 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 is 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 a middle ground between total image lockdown and total image anarchy, Burning Man instead chooses to 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 festival's assertion of co-ownership, rather than sole ownership, in attendees' works of authorship gives Burning Man standing to serve Digital Millennium Copyright Act (DMCA) notices, but also leaves the creator of the work with the right to make “personal use.” (Under the notice and takedown provisions of the DMCA, 17 U.S.C. '512, sites will often gladly take down material that is alleged to infringe copyright; '512 requires that takedown notices be sent by, or on behalf of, a copyright owner.) 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. 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 websites (as long as your website does not sell any other product or service, and as long as your website does not purport or appear to be an official website of Burning Man or Black Rock City LLC), to display on photosharing websites, 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.

The new policy also includes a statement from Burning Man that it will not use its joint ownership rights to “enter into any licensing agreements for the images,” and it also grants attendees the right to use one specific form of Creative Commons license when making their approved “personal use” of their own photos, to the extent consistent with the Burning Man terms.

Full Ownership

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 website, but can make no use in print or other media.

According to a recent 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. 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. (See, e.g., 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)). 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, e.g., Galiano v. Harrah's Operating Co., 416 F.3d 411 (5th Cir. 2005) (casino restaurant uniforms and hats resembling fanciful vegetables not protectable).)

It's About Business, Not Censorship

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. The TBD.com report noted that other artists, including the Beastie Boys and the Foo Fighters, have required similar terms in the past. Both artists are represented by the publicity firm Nasty Little Man, whose principal, Steve Martin (not the comedian), was quoted in the TBD.com report as saying, “it often comes from artists who've been stuck having to pay a ton for a shot they want for a box set, merch, etc.” In other words, no censorship intended, just plain old commerce.

Conclusion

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) or by electronic click-on (for Burning Man). Both also operate on the assumption that a copyright may be assigned before the work at issue has even been created.

The U.S. Copyright Office noted in a Dec. 7, 2010, 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, “Possible Gap in Termination Provisions: Analysis of Gap Grants Under the Termination Provisions of Title 17″ at www.copyright.gov). 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, considering that the Copyright Office ruling also stated that “as 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.”

Grammy-winning pop singer and “fame monster” Lady Gaga, and the annual avant-garde Burning Man festival have recently taken unusually aggressive copyright positions against people (like photographers and festival attendees) 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.

What's at issue 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.

Co-Ownership Model

Burning Man, for example, 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, de-commodification, 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 de-commodification 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 website to sell camping equipment. As the festival put it, “[w]e 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 is 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 a middle ground between total image lockdown and total image anarchy, Burning Man instead chooses to 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 festival's assertion of co-ownership, rather than sole ownership, in attendees' works of authorship gives Burning Man standing to serve Digital Millennium Copyright Act (DMCA) notices, but also leaves the creator of the work with the right to make “personal use.” (Under the notice and takedown provisions of the DMCA, 17 U.S.C. '512, sites will often gladly take down material that is alleged to infringe copyright; '512 requires that takedown notices be sent by, or on behalf of, a copyright owner.) 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. 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 websites (as long as your website does not sell any other product or service, and as long as your website does not purport or appear to be an official website of Burning Man or Black Rock City LLC), to display on photosharing websites, 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.

The new policy also includes a statement from Burning Man that it will not use its joint ownership rights to “enter into any licensing agreements for the images,” and it also grants attendees the right to use one specific form of Creative Commons license when making their approved “personal use” of their own photos, to the extent consistent with the Burning Man terms.

Full Ownership

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 website, but can make no use in print or other media.

According to a recent 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. 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. ( See , e.g. , 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)). 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 , e.g. , Galiano v. Harrah's Operating Co. , 416 F.3d 411 (5th Cir. 2005) (casino restaurant uniforms and hats resembling fanciful vegetables not protectable).)

It's About Business, Not Censorship

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. The TBD.com report noted that other artists, including the Beastie Boys and the Foo Fighters, have required similar terms in the past. Both artists are represented by the publicity firm Nasty Little Man, whose principal, Steve Martin (not the comedian), was quoted in the TBD.com report as saying, “it often comes from artists who've been stuck having to pay a ton for a shot they want for a box set, merch, etc.” In other words, no censorship intended, just plain old commerce.

Conclusion

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) or by electronic click-on (for Burning Man). Both also operate on the assumption that a copyright may be assigned before the work at issue has even been created.

The U.S. Copyright Office noted in a Dec. 7, 2010, 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, “Possible Gap in Termination Provisions: Analysis of Gap Grants Under the Termination Provisions of Title 17″ at www.copyright.gov). 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, considering that the Copyright Office ruling also stated that “as 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.”