Copyright: The Law We All Pretend We Don't Understand

In a recent decision, the U.S. Supreme Court found that Aereo, Inc., violated copyright law by allowing subscribers to stream copies of television programs without a license from the copyright holders.  If this doesn't sound like a surprising result, then pat yourself on the back -- you understand copyright law better than 99% of Americans [eds. note: statistic not intended to be a factual statement].

Now, supporters of Aereo would claim that is an oversimplification.  They would say the television programs provided by Aereo were obtained from over-the-air broadcast by its centrally-located warehouse of antennas, and that Aereo was, in effect, merely renting out the use of an antenna and a DVR to subscribers, albeit on an ad hoc basis.  Clever -- but not clever enough, said the Court, CATV (community antenna television) companies already thought of basically the same thing nearly 70 years ago and Congress dealt with that Copyright nuance in 1976.

Now Aereo, after sulking a bit on its website:

... is back at it, apparently seeking a compulsory license as a CATV provider.  Good for Aereo, rolling with the punches like that.  It will be interesting to see if how this new approach pans out.

But I tell you that story to tell you this one: people generally have no understanding (or pretend to have no understanding) of copyright law.  Why is copyright such a hard thing for people?  In my night life as an amateur stage actor/participant, copyright law permeates almost every aspect of the experience: the shows are copyrighted, so are the songs, the music, the dialogue, the logos, and the promotional art. Yet, I am constantly amazed how ignorant even seasoned theater people are of basic copyright concepts.  

In fact, I shouldn't even say "concepts," I should say concept -- singular.  And that concept is this: if you didn't create it, you need to get permission to use it.  

Now, I know the law is usually excruciatingly complicated and filled with nuance.  And the Copyright Act is no different.  It talks about the five rights granted to copyright holders (namely, the rights to reproduce, to create derivative works, to distribute, to perform, and to display) and, in its attempt to be inclusive but also fair, further complicates matters by talking about whether a performance is "public" and uses arcane words like "phonorecords."  And, of course, there are loopholes: works that have fallen into the "public domain" are unprotected and people may make "fair use" of otherwise copyrighted materials.

But what you need to remember is that the public domain and Fair Use doctrines are exceptions to the general rule I stated before.  Want to do Shakespeare?  OK, you are probably in the clear as it has long since fallen to the public domain.  In fact, most everything (except the "Happy Birthday" song for some god-forsaken reason) published before 1923 is in the public domain.  Many things after that are in the public domain too, but the analysis is a bit more complicated due different copyright regimes that existed before the 1976 amendments (one possible source of lasting confusion).  And Fair Use is much more limited than you probably think: generally it refers to use for a limited or “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. 

"There, that ought to do it!"

With all this in mind, here are some things I too frequently hear from my theater acquaintances:

• "We're just doing a song (or two) from the show, and we paid for the sheet music, so we don't need to get permission."

• "We are not charging for admission" or "Admission is by 'donation-only'" or "This is a closed performance" ... "so we don't need to get permission."

• "We are just doing a 'preview' performance for a show we [will do, might do, have done], so we don't need to get permission"

• "This line from the show always bothered me, so I'm cutting it.  It's just one line, I don't need permission."

If you haven't guessed, all of these assertions are -- barring some stipulation in your agreement with the applicable rights holder or a "performance-rights organization" or PRO (in this situation, ASCAP most likely) -- patently false.  Copyright law is not concerned whether you make money (and even if it was it would see through your 'donations-only' facade), nor is it concerned with whether you had permission at one point or intend to get permission later.  You violate copyright law if you perform publicly a song or a scene and you do not have permission of the content creator or the entity that maintains the content creator's rights to do so.

So get permission first -- it's the right thing to do, and you know it.

Hobby Lobby: Christians Get Two Bites at the Apple

I know I'm beginning to sound like a broken record on this blog.  I swear I'm not anti-Christian.  I have many good friends who are Christian (yikes, what a cliche defense).  Many, even the majority of, Christians are decent people who don't attempt to beat their neighbors over the head with their faith.

What I have a problem with is the idea, propagated by the talking heads, that there is some vast movement in U.S., apparently with President Obama (also a Christian) at the helm, to marginalize and degrade Christians. In reality, Christians have always enjoyed a privileged status in this country, from a near monopoly on political power to being allowed to proselytize during official legislative proceedings.  As you can see, I've said my piece on the issue, and I was ready to move on to some of the other (purported) topics on this blog.

Alas, then this happened: 

A party line 5-4 decision from the Supreme Court held that a closely-held corporation cannot be forced to pay for coverage of certain contraceptives if it conflicts with their sincerely-held religious beliefs.  For now, at least, the majority claims the ruling is limited in scope to "closely-held corporations" (a kind of nebulous term in its own right) and to contraceptives (i.e., you can't claim that vaccinations are against your religion so you don't have to pay for them). It is also NOT based on the First Amendment Free Exercise Clause, but rather on the Religious Freedom Restoration Act (RFRA).

RFRA was passed by Congress in response to concerns by paranoid religious organizations in response to the decision in Employment Division of Oregon v. Smith, which stood for the proposition that neutral laws of general applicability do not violate the Free Exercise Clause just because they arguably tread on a person's religious beliefs.  That opinion was penned by the most liberal, godless commie to ever stink up the chambers of the Supreme Court: Justice Scalia [wait, what?].  Like many of us, Scalia seemingly has come to regret his youthful folly and joined Alito's majority opinion in this case.

So these women are on their own because their bosses think that God thinks that contraception is murder? (OK, that's a bit heavy-handed -- some of the drugs at issue straddle the "birth control or abortion?" line). Well, no, it seems.  The decision seems to volley the ball back to the legislative or executive branch to either amend the law or its application, or to provide government funding for these products, which insurers are required to cover even if employers don't pay for such coverage.

I agree.  So pass a version that explicitly excludes the application of RFRA!

So, wait, the end result is Hobby Lobby gets a discount on its insurance mandate because it doesn't have to pay for these contraceptives -- and the government has to foot the bill?  Should you really be celebrating this, Conservative Christians?  Not a single "abortion" will be prevented and the federal government will have to spend more (of your tax dollars) to subsidize the insurance shortfall of these deadbeat companies.  It sounds like the opposite of what you claim to want ... unless ... unless, what you really want is what the Hobby Lobby opinion gives you: more precedence of privilege.  Not only do you get to participate in a democratic process that you dominate, but when that process fails to give you what you want, you can object on religious grounds.  And that's something those damn atheists will never have.