Whitney R. McGuire, Esq.

representing groundbreakers | visionaries | trailblazers | creators.

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Issue #1

56 pages on newsprint, so you can share it with friends and pass on the message. What's inside Jonathan Lethem discusses the importance of...

RIGHT TO COPY MAG IS HERE! Head to the website (click above) and order your copy today!

“Writer Whitney McGuire explores the effects of YouTube's attempts to police copyright infringement.“

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Here’s The Post-Election Anthem Every Black Girl Needs To Hear

DAVE + Sam’s “You Da Shhh Girl” is the anthem that reminds you of your best self.

We just keep creating while they continue to hate.

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Where’s Whitney?!

I know I’ve abandoned this webspace within the past year. Life has moved swiftly and beautifully and in the midst of this momentum, I’ve retreated to a cerebral/heart-filled space wherein, I’ve begun refining and reconstructing various aspects of myself. As an extension of me, this blog is no different. in the coming weeks, I will move my website from Tumblr and relaunch it as a comprehensive amalgamation of my work and a destination for those seeking legal help, plus encouragement and inspiration. Thank you, all three of you, who read my blog for years and supported me through my non-linear and slightly convoluted path to becoming an attorney. Stay tuned...  

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Two sides of the Las Vegas arts community

THANK YOU, VEGAS SEVEN!

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I need your help! Well, my editor and his writers (including me) need your help. I've contributed to a magazine (RIGHT TO COPY MAGAZINE) that I think will be very influential in the conversation about copyright and art both within and outside of the legal context. But we need your help (pledge) to print the first issue. (Link in bio) + + + Why did I choose to write for this magazine? + + + Because I love discussing and dissecting concepts of ownership and originality when it comes to creative expression. + + + "We're always discussing copyright when we discuss art - we just don't always know it." "If concepts like authorship, influence and originality have such a bearing on how we make and enjoy art, we need to open the discussion up; to talk about it outside the legal world. We need to claim it for what is: a part of culture." - Chris Woolfrey, editor Right to Copy Mag. + + + Please help us print the magazine and help me get published! Link in bio. Thank you!!!

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Today tears were frequent. Lately, shedding them feels refreshingly necessary. An undeniable indicator of my ability to renew myself. I started to pray to heal my soul lately. To change my perspective of people places situations that occurred in the past even before I encountered my body in its present form. To acknowledge and transform residual trauma which has been forced into already open wounds. Cured and satiable. I've feasted on the truths of the past in life and in literature but now I'm growing in the direction of healing. Realization was strong today and reminded me that countless prayers, hopes, determinations, wishes, dreams, life has gone into supporting me. My grandmother's unconditional love showered me with warmth and I cried to her spirit in appreciation. Then I sat in the sun. @beyonce's #lemonade echoed aspects of my realization. So I collapsed into this visual the way I've fallen into growth with not-so impregnable trust tinged with the angst of impermanence. The angst of reality. I'm too familiar with the tropes of heartbreak between lovers and even more aware of the collective suffering we've inflicted on ourselves and others as human beings. All of that leaves a strong aftertaste. So the salt from tears was cleansing today. I think, above all, that's what @beyonce and countless others are focused on. It's time to make lemonade out of the sourness of isms and strife. It's time to heal.

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Prince’s Death Changed My Life

I've spent countless hours perusing the resumes and LinkedIn profiles of professionals whose careers I've admired. I've spent even more hours reaching out to most of these people, establishing connections, creating bonds of friendship, learning from them.  I've labored over my own interests, talents, skills and the seemingly disparate potential paths each reveals to me. I've shed more tears than I care to admit doubting whether I'm intelligent enough, courageous enough, skilled enough to tackle my biggest dreams. I've shied away from those same dreams, giving into self-doubt, which admittedly subsided quite a bit thanks to growth, but remains a reality nonetheless. I've grown frustrated and angry with myself because I've succumbed to comparison, wondering, wishing, becoming stagnate at times.  To say that my journey thus far has been a sweat of the brow inducing, uphill battle would be an understatement. I've become content with climbing. I'm even more content with sharing what I've learned with anyone along the way. I have no true professional mentors, just people I deeply respect. But somewhere between self-confidence, doubt, fulfillment, rejection, recognition, non-recognition (which, let's be honest, is the norm), motivation, uncertainty, I've found hope.  It came to me through death.  The death of  one of the most iconic musicians to ever live: Prince Rogers Nelson.  Amidst all of my existential confusion and persistent questioning, his death became an answer.

Prince's magic (I can't describe it as anything less), has seasoned my life for the past thirty years.  My mother, a musician as well, introduced me to Prince in a photo album when I was old enough to speak words.  She kept photo albums full of her fun life, pre-me, performing with legends like Rick James, Chaka Khan, Prince. I would revisit these photos whenever I played dress up in her sequined garments, pretending I was Tina Turner or...her lawyer. I didn't understand at the time, but when Prince became The Artist Formerly Known as Prince, artists everywhere witnessed a groundbreaking reality: an artist who objected to the unauthorized use of his intellectual property was taking control of said property, despite contractual obligations to a record label.  Prince was an auteur of life; A standout, a weirdo to those with closed minds, a courageous soul. He was all things I am and hope to continue to be.

Yesterday, after a fairly mentally foggy day, I wrote down my dreams. I wrote the most outlandish terrifying dreams on a piece of paper and prayed to bring forth the courage, wisdom, and compassion I innately possess to create my own path. Today, I found out that Prince passed.  Of course I shed tears. But then I became empowered.  You see, when a legend dies, they pass the baton. It's up to us to keep running.  Prince's influence in copyright law online inspired me to pursue change within this body of law. It inspired me to dig deeper into what I do know and open myself up to learning even more.  Prince's influence on my life inspires me to keep going, to continue to challenge status quo and to leave a groundbreaking legacy with confidence, grace, wisdom and compassion. No his death wasn't the "aha" moment I've been seeking professionally, it was so much more -- A powerful wake-up call to be the force I was born to be and most importantly, to deepen my faith in myself.  Thank you, Mr. Nelson.

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Here’s What’s Wrong with YouTube

“Connor Goes to Hollywoood: Chasing Stardom in YouTube’s Crowded Universe,” is a story of a young YouTube creator set on making the jump from YouTube celebrity, to actual celebrity.  Author, Ryan Bradley catches Connor at a defining moment in his career as he is preparing to attend VidCon, a conference that began in 2010, mostly for YouTubers like Connor, but has since expanded to include Viners, Snapchatters and Facebookers, including their impressively loyal fans. The conference creators (YouTube celebrities in their own right), the VlogBrothers — John and Hank Green, saw an opportunity to apply pressure to the pulse of digital innovation. In their own words, they describe why: “We are in the very early, defining moments of an extremely powerful global force.” They are correct, “one year’s VidCon attendee is the next year’s superstar.” Pace plus consistency are what distinguish YouTube from other media behemoths because it is a place where “entire genres are created in the time it takes a full season of TV to meander its way to conclusion,” and has been a mainstay for digital creators since its inception.

YouTube is the ultimate textbook. It’s the purveyor and explainer of culture. It’s a place where human beings can not only create, but collaborate.  For creators like Connor, YouTube is an avenue through which expression becomes career. A place where definitions of celebrity are changed in a nanosecond. It’s a new frontier. Yet, purveyors of this unique landscape may or may not be aware of the less inspiring aspect of YouTube – its complicated and often unfair relationship with Copyright law, which for all intents and purposes is the most influential body of law affecting online creators.  As a result of this storied past and murky present, when the dust settles, creators are often the only ones left behind.

Copyright law is derived from the United States Constitution Article 1, section 8, clause 8 which vests Congress with the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” This law tries to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. What it actually does, specifically within the digital landscape, re: the World Wide Web, is hinder creation and progress.

Consider Angry Joe, a well-known video game reviewer who in 2013 uploaded a video to YouTube departing from his usual content which includes theatrics, visual effects, and insightful commentary, to reveal a more heated tone. Angry Joe was, well, angry! Rightfully so. Out of over five hundred videos, remarkably sixty-two had been “flagged” for alleged copyright infringement. Instantly, the income he was receiving from his videos was halted.  Angry Joe, like Connor and millions of other creators utilized his videos and YouTube channels as supplemental, if not, complete income. Angry Joe found himself face-to-screen with YouTube’s ContentID technology.  ContentID is an over-sweeping response to a mass proliferation of videos uploaded to YouTube in proportions so exponentially large, that individual case-by-case checks for copyright infringement became impossible.  In theory, it protects copyright owners.  In practice, it eliminates revenue and sometimes livelihoods of the very creators that thrust YouTube into media behemoth territory.  

ContentID consists of a database including both audio and video files which copyright owners submit to YouTube.  If a copyright owner submits a claim regarding a video that includes content that matches the audio or images they own, the system compares the submitted files with those uploaded to YouTube.  If a match is found, the system automatically submits a ContentID claim to the uploader.  This is problematic for a number of reasons.  First, the effect of the ContentID claim is left to the discretion of the copyright owner, regardless if the claim is frivolous or abusive.  Second, some ContentID claims prevent certain material from being available on YouTube. In Angry Joe’s case, a video not being available is an automatic loss in revenue.  Third, there is basically no option for an alleged infringer to refute the validity of a ContentID claim, prior to taking action.  This, ultimately is the most problematic aspect of this technology.  

An example. Imagine your livelihood depends on your artwork.  Imagine you are venturing into the world of collage which means parts of your work are derived from other previously existing works, yet your final product is something novel, transformative. Now imagine the creators of the previously existing works you utilized in your pieces file a copyright infringement suit against you. In the real world, you would have an opportunity to defend the validity of your work in a court of law before any adverse action is taken against you and your work.  In the YouTube universe, however, your opportunity to defend yourself becomes available after your work would be removed from galleries, shelves, websites, etc. (Side note -- collage is an art form that is considered non-infringing in copyright law, save for a few specific criteria. Why this legal protection does not extend to YouTube creators, remains a complete mystery).      

This skewed process set the stage for the landmark lawsuit, Lenz v. Universal Music Group, also known as, “The Dancing Baby” case.  On February 7, 2007, Stephanie Lenz uploaded a 29 second video of her two children dancing to Prince’s “Let’s go Crazy.” She titled the video “Let’s Go Crazy #1.”  About four seconds into the video, she asks her thirteen-month old son “what do you think of the music?” after which he bops ups and down while holding a plush toy.  At the time Lenz posted the video, Universal was Prince’s publishing administrator responsible for enforcing his copyrights. To accomplish this objective with respect to YouTube, Universal’s head of business affairs assigned an assistant in the legal department, to monitor YouTube on a daily basis. He searched YouTube for Prince’s songs and reviewed the video postings returned by his online search query. When reviewing such videos, he evaluated whether they “embodied a Prince composition” by making “significant use of … the composition, specifically if the song was recognizable, was in a significant portion of the video or was the focus of the video.” According to Universal, “[t]he general guidelines are that [we] review the video to ensure that the composition was the focus and if it was we then notify YouTube that the video should be removed.” The legal assistant contrasted videos that met this criteria to those “that may have had a second or less of a Prince song, literally a one line, half line of Prince song” or “were shot in incredibly noisy environments, such as bars, where there could be a Prince song playing deep in the background . . . to the point where if there was any Prince composition embodied . . . in those videos that it was distorted beyond reasonable recognition.” The Court accurately noted that none of the video evaluation guidelines explicitly include consideration of the fair use doctrine.

Fair Use

Say for instance, you the collage artist in the aforementioned example, get your day in court, not in the YouTube universe, in the real world. Your defense would likely be, fair use as your work is considered a derivative work.  Fair use is one of the best defenses to an action for copyright infringement because the principles behind its inception are designed to foster creativity.  It encourages content creation even if the content is derived from the work of another, as long as the work meets the four fair use factors used by courts in these types of cases.

When Universal’s legal assistant reviewed Lenz’s video, he recognized “Let’s Go Crazy” immediately. He noted that it played loudly in the background throughout the entire video. Based on these details, the video’s title, and Lenz’s query during the video asking if her son liked the song, he concluded that Prince’s song “was very much the focus of the video.” As a result, Universal decided the video should be included in a takedown notification sent to YouTube that listed more than 200 YouTube videos Universal believed to be making unauthorized use of the song.  In response, YouTube removed the video and sent Lenz an email on June 5, 2007, notifying her of the removal. Both Lenz and universal engaged in a legal tête-à-tête resulting in the court’s decision that any copyright infringement notification must be preceded by a fair use consideration.  The court did not offer much guidance as to how that consideration might be made, nor to what extent fair use should be considered, but it did provide the standard that alleged infringers should be offered an initial benefit of doubt from copyright owners.

The case predates ContentID, but it demonstrates the disconnect between law and reality on the internet. Fair use, as a legal concept, protects creators who utilize preexisting works to create something new.  YouTube’s ContentID system, while effective in detecting outright infringement, also directly and adversely affects legitimate uses of copyrighted content (fair use). The recourse for users falling under the fair use umbrella is less than ideal as no one outside of the copyright owner reviews disputed, likely fair use, claims.  According to YouTube, once a dispute is filed by the alleged infringer, all recourse rests in the copyright owner’s control: they can choose to respond to the dispute within 30 days, they can file a court order requesting the video permanently removed, they can file a copyright strike on YouTube resulting in the automatic take down of the video, or they can choose to cancel the appeal.  As a result, the alleged infringer literally has no real power in disputing a ContentID claim.

YouTube, a community of creators such as Connor, Angry Joe, Stephanie Lenz, is a platform for collaboration. It’s a platform for expression.  Creativity usually requires a combination of prior ideas and work, and such combination, is routinely accelerated by collaboration. We see examples of this as clip content – copies of small portions of preexisting works—is used in YouTube video. As legal expert, Taylor Bartholomew notes, “YouTube allows creators to recapture the shared experience of American media.” This ability to share and discuss clips, he continues, is “crucial for expanding important cultural discussion into cyberspace.” Successful collaboration involves individuals building on each other’s ideas in a synergistic manner that enhances individual creative activity. This is evident from the myriad of “react” videos made by YouTube users and others. For YouTube users, the expansion of cultural debate onto the internet is a natural, non-threatening, evolution. Strict enforcement of copyright, without a viable opportunity to prove fair use, threatens the creative process and the use of pre-existing clips to enrich cultural discussion.  This paradigm threatens to shut down emerging works, which have the potential to be important contributions to our culture.  By foreclosing the opportunity for users to have a viable recourse against copyright infringement claims, YouTube has threatened the creative freedom that their users are entitled to. YouTube is alienating the community responsible for its popularity.

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Ninth Circuit Muddies Already Murky Fair Use Issue as it Revisits Lenz v. Universal

(Image Credit: http://www.commondreams.org/news/2015/09/15/federal-court-ruling-marks-win-fair-use-dancing-baby-case)

As you might recall, the effective outcome of Lenz v. Universal Music was that copyright owners who wish to issue take-down notices, pursuant to the DMCA for apparently infringing content, must consider Fair Use - which functions as a defense to an action for copyright infringement.  Pursuant to this decision, the copyright owner’s obligation to consider Fair Use should be a subjective  (based on the copyright owner’s good faith), rather than objective (based on a clear standard established by reasonable person in the copyright owner’s position) belief that the allegedly infringing content is not Fair Use.   Even though the Court established a subjective standard, it was still a landmark decision, because it established a standard in the first place. 

In a time when video hosting sites (read: YouTube) are becoming more popular and user content is being uploaded at exponentially rapid paces, it is difficult for video hosting sites to evaluate the validity of each and every take down notice. This decision helps video hosting sites remain protected from direct litigation from copyright owners under the DMCA, as long as video hosting sites expeditiously take down content that is considered to be infringing after a subjective analysis of the four Fair Use factors by the copyright owner. 

For instance, on YouTube, copyright owners can certify that they have considered Fair Use prior to submitting a take down notice in boilerplate terminology such as this: “ I have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” And “ I acknowledge that under Section 512(f) of the DMCA any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability for damages.”    

According to JDSupra, the Ninth Circuit noted the precarious position of video hosting sites and the voluminous content they host by “suggesting that the fair use analysis prior to a DMCA take-down notice ‘need not be searching or intensive’ and did not require an ‘investigation of the allegedly infringing content.’” 

YouTube already utilizes an algorithmic program known as ContentID.  This program is made up of a database composed of both audio and video to which copyright holders (usually large companies) on YouTube contribute.  ContentID scans this content and compares it to new uploads by users.  If the system finds a match, it automatically files a copyright infringement claim on behalf of the copyright owner against the user uploader.  This filing triggers an automatic freeze of advertising revenue, known as a copyright strike. While YouTube maintains it’s protection from litigation by large companies with extensive resources and copyright catalogs (think: BMI, ASCAP, Universal Music) pursuant to the DMCA safe harbor, it leaves users without having a chance to defend themselves before their account is affected by a take down notice.  

Fair Use, in theory, is how copyright law actually does what it was intended to do: “to promote the Progress of Science and useful Arts, by securing for limited Tımes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The United States Constitution, Article 1, Section 8. Fair Use “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which [copyright] law is designed to foster.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).  

Fair Use is free speech.  Whether someone is quoting another on their blog (as I’ve done here), inserting clips of CNN into their own video news report (as YouTube users have done), or using a song sample in a musical parody, free speech often depends on incorporating and referencing other people's creations in order to create a new, transformative work.  This was Lenz’s argument on rehearing before the Ninth Circuit Panel earlier this week. According to JDSupra, “ Lenz argued that the Court’s prior ruling allowed a content owner to effectively censor speech – especially speech by ordinary individuals – by permitting a subjective belief, even where unreasonably held, to act as a shield for frivolous take-down notices. (emphasis added).  Accodring to JDSurpa, in support of this argument: 

Google, Tumblr, Twitter and the owner of Wordpress submitted an amicus brief, arguing that unfounded or abusive take-down notices impose a significant cost on service providers as well as on free speech, and that determining liability ‘solely on the subjective knowledge of the notice sender… would lead to the illogical result that the more unreasonable a copyright holder is, the more legal leeway it has to send unfounded notices.’ 

Additionally, two other entities, Public Knowledge and the Organization for Transformative Works – whose earlier brief had been cited by the Court for its reference to algorithms that can identify infringing content – also submitted an amicus brief, “notably setting forth numerous ways in which take-down notices purportedly have been abused, including the use of ‘overbroad’ matching algorithms.”

The Ninth Circuit was unpersuaded by the parties arguments to rehear its decision affirming the district court’s denial of summary judgment, and instead took the opportunity to issue an amended decision. This amended decision deletes almost two pages from the original decision most importantly the paragraphs that set forth the type of fair use consideration that the Court originally indicated might suffice.

The effect of this decision, at least for copyright owners in the Ninth Circuit, is that these purported owners do not have to conduct a subjective Fair Use analysis prior to submitting a take down notice. According to JDSupra, “When a decision is amended, the prior decision may no longer be cited for the purposes of precedent, and thus the Ninth Circuit now simply has not defined the type of review that must be undertaken,” prior to submitting a take down request. Further, the court seems to leave the issue of whether allegedly infringing content is Fair Use to a jury in the lower trial courts.  Essentially, this has the effect of loading even more costs on to individual users to defend themselves in court against copyright owners that have the ability to not only submit multiple, but also frivolous, take down requests.  Of course video hosting sites have the discretion to evaluate take down requests and apply a Fair Use analysis to flagged content to protect users against unwarranted requests, but given the volume of content and take down notices these video hosting sites receive, this is highly unlikely.  For now, users remain at the whim of an ever-changing body of law.   

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EVENT: Protecting Your Share, Respecting  What’s Fair: Sampling and Co-Authorship in Pop, Urban and Dance Music— Relevant Legal Precedent and Practical Legal Tips for Songwriters, Artists and Producers

The Diversity Committee of the Entertainment Arts and Sports Law Section Presents:

Protecting Your Share, Respecting  What’s Fair: Sampling and Co-Authorship in Pop, Urban and Dance Music— Relevant Legal Precedent and Practical Legal Tips for Songwriters, Artists and Producers

Wednesday, March 23, 2016 5:30 p.m. - 7:30 p.m. with reception to follow

Herrick Feinstein LLP | 2 Park Ave | New York, NY 10016

This program qualifies for 2.0 MCLE credits in Professional Practice. This program in non-transitional and therefore does not qualify for newly admitted attorneys

Cost to Attend: $20-EASL Members | $50-NYSBA Members | $75-Non-Members | $10-EASL Member Law Students

REGISTER NOW

Topics Covered:

Relevant precedent and the court’s current take on sampling and co-authorship

The history of master recording and song sampling in urban, hip hop and pop music

How to claim your rights to your contribution to a song

How and when to clear a sample before using it for your song

Understanding the songwriting process so as to best counsel songwriter/artist clients

Panelists: Barry Werbin, Esq., Herrick Feinstein Judith Finell, Musicologist Richard Chused, Professor, New York School of Law

To register over the phone please contact the Member Resource Center at 1-800-582-2452. For more information contact Beth Gould [email protected]

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Locke Don’t Live Here Anymore: Debunking Lockean Theory in IP Law as Applied to the Internet

We’re all familiar with the Lockean concept of life, liberty, and property.  This is the cornerstone of the notion that one of the essential purposes of government is the defense of property.  Traditionally, intellectual property has fallen within the purview of this Lockean view of property, however, the Fine Brothers fall-out is a reminder to us that (1) the digital landscape is still quite new and therefore, our approach to issues within this landscape requires more thought.  In his article,Intellectual Property: Policy for Innovation, not ‘Fairness’, Matthew Lievertz maintains that traditional property rights, as suggested by Locke fail within the digital landscape because these rights depend on the scarcity of that property.

He uses an example.  If Joe owns property and Sue acquires it, then Joe no longer has it, and Sue has harmed Joe (by theft).  Joe’s property is scarce.  If, on the other hand, Joe has an idea (i.e., owns intellectual property) and Sue acquires it, then Joe still has it as well as Sue, and Sue has not harmed Joe.  Here, we see that in the case of intellectual property, an unlimited number of people can possess it at the same time.  Intellectual property is simply not a scarce resource.  Lievertz saves the much-discussed ethics of Internet piracy for another day, but what we can glean from comparing Lockean property theory to the development and enforcement of intellectual property law within the digital landscape is that not only is the concept of property different on the internet, but the promotion and protection of IP also looks different. What the Fine Brothers fall-out teaches us is that certain protection practices stifle motivation to innovate and the present challenge for us all is to achieve and maintain the balance (protecting IP while encouraging innovation), offering enough control to motivate authors, inventors and publishers but not so much control as to threaten important public policy aims.

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A Fine Lesson: What IP Lawyers Can Learn from the Fine Brothers Fallout

The internet is still very much the Wild West and there is no better example of this idea than that of the Fine Brothers saga. In case you missed it, YouTube sensations, the Fine Brothers, became internet pariahs over the span of 24 hours beginning last week when they announced the creation of a licensing program — the first of its kind on YouTube — that would trademark the “react” video format (including the word “react) and allow other creators to use the brothers’ formats in exchange for part of their profits. The react videos feature the Fine Brothers, off-camera, showing kids, elders, teens, adults, or YouTubers viral videos or pop culture trends and having the viewers react to the content. They’ve become wildly popular and appropriated for use by others, according to the Fines who even singled-out Ellen DeGeneres forappropriating the concept for her show. Here’s an example of a “react video.”

Essentially, the Fine Brothers did what many brick and mortar corporations do outside of the digital landscape: they saw an opportunity to expand through franchising and took it. They compared their licensing idea to a chain restaurant, in which they started the original company but would help outfit franchisees with logos and support for a share of their profits, a 30% share. However, the Fine Brothers rooted their franchise idea in intellectual property law (Trademark)…on the internet which earned fury, mockery and accusations from other YouTube creators. They lost tens of thousands of followers by the hour. According to the BBC, the brothers became “the convenient face of many people’s frustrations.” These creators, according to The Washington Post, claimed the Fines were trying to “‘own’ an entire genre of online videomaking — in direct opposition to the democratic, DIY spirit that many YouTubers have embraced.”

One week later, the Fine Brothers have done a complete one-eighty. According to the Washington Post, the brothers have discontinued their licensing program, they also decided not to pursue infringement claims against other creators who sample their work or borrow the tropes of the “react” genre. They even deleted the videos in which they explained and promoted the licensing program on their YouTube page. What remains as the dust begins to settle are many questions.

Why did the internet react so strongly to this incident when this type of expansion happens so often in business? What is it about IP law that is frustrating to people? The obvious answer, quite frankly, is most people don’t understand IP law. This was made apparent as I scrolled through social media reactions, often stating that the Fine Brothers were trying to copyright the word react. What people don’t understand, they tend to instinctively oppose. Why was there such indignation towards a body of law that, in theory, is designed to protect the very product of a creator’s innovation? Outside of the digital landscape, this protection is widely accepted (even passively), but on the World Wide Web, creators are staunchly opposed to certain aspects of the ideology and enforcement of intellectual property law. Aside from the very bad decision to trademark the word “react,” what the Fine Brothers sought to do, many have done before, maybe just not as visibly and maybe not within the YouTube/ DIY community. Does this indignation originate and rest with the internet user within the DIY digital landscape, or has Intellectual Property law, in practice, begun to stifle creativity/ innovation to the point where any exercise of it in a creator-centric environment, is rejected? Gregory Mandel, Associate Dean for Research and Professor of Law at Temple University expounds upon the latter inquiry.

According to Mandel, psychology research provides significant insight into the creative process and has indicated that certain intellectual property law hinders the very creativity the law is designed to inspire. While his study is based primarily on patent and copyright law, trademark falls within the scope of his findings, as well.

How the law is understood by individuals has a significant effect on how the law influences creativity. According to Mandel, to the extent that IP law is perceived as creating competition, constraint or providing rewards for task (not creative) performance, the law may produce extrinsically motivated efforts that are less creative. Mandel, at 11. Mandel identifies a motivation spectrum inherent in most people. Extrinsic motivation is produced or prompted by extrinsic demands and pressures while integrated or internal motivation is produced when an individual engages in behavior that is contingent upon a desired outcome, although not as a result of external factors. Id. In other words, intrinsic motivation inspires or produces activities that an individual identifies with as an expression of his or her own self. Intrinsic activity is self-determined activity. A vast majority of the YouTube/DIY community consists of intrinsically motivated individuals. Yes, the monetary reward for subscribers is an external motivator, but DIY is an alternative to modern consumer culture’s emphasis on relying on others to satisfy needs, and is therefore, an intrinsically motivated movement. According to Mandel, “as motivation moves from the external towards the internal side of the motivation spectrum, individuals’ work product tends to become more creative.” Mandel, at 9–10.

Let’s consider user innovation as an example. User innovation refers to innovation produced by technology users as opposed to individuals whose profession it is to develop technology. Id. This occurs when users modify products they have purchased (or subscribed to) in an effort to provide a more enjoyable user experience. These modifications can produce significant advances. Id. Examples of user innovation, including the YouTube celebrity, range from simply programming an iPod or cellphone, to cyclists who invented the mountain bike due to an interest in off-road biking, or surgeons who modify and improve surgical equipment for their own use. User innovation, according to Mandel, is by definition, “often largely intrinsically motivated, and therefore may be expected to produce particularly creative results. YouTubers utilize both the site and their own technological resources to create content that is personally relevant. These users are intrinsically motivated to create.

Further, intrinsically motivated creation/innovation is often associated with, and enhanced by, collaboration. Creativity usually requires a combination of prior ideas and work, and such combination, according to Mandel, is routinely accelerated by collaboration. Successful collaboration involves individuals building on each other’s ideas in a synergistic manner that enhances individual creative activity. This is evident from the myriad of “react” videos made by YouTube users and others, aside from the Fine Brothers. These videos are not frame by frame copies of original Fine Brothers videos, but are inspired by the concept to which the Fine Brothers claimed ownership. If collaboration promotes creativity, then by claiming ownership to the “react” concept (or video elements, which were never clearly defined by the Fines), they threatened the creative freedom that their supporters and fans felt entitled to, within the DIY community. So what do we do? I honestly don’t know, but I agree with Mandel who maintains that intellectual property law should promote collaboration. While joint creator law could be considered a viable IP solution to or motivator for collaborative work, it is still an external motivator. Also, most people don’t know these laws exist. Additionally, regarding copyright, the requirements of intent to be a joint author and for an individual to provide an independently copyrightable contribution, protect the primary developer of a copyrightable work at the potential expense of a secondary contributor. Id. at 14. Commentators, including the Ninth Circuit have identified this unintentional bias. See Aalmuhammed v. Lee, 202 F.3d 1227, 1232 (9th Cir. 2000). The Fine Brothers like most creators did not consider their community as collaborators, but if they had — if they took a second to think about the community that makes YouTube so successful and how they would “react” to this concept, perhaps they might have thought twice about the most effective way to monetize their idea while not becoming internet pariahs for a week. The Fine Brothers saga exemplifies the fine line between autonomy and control and between individualism and social connection, necessary for successful collaborative creativity. Mandel proposes a solution:

Intellectual property law…may work well in the large-scale collaboration motivational context, despite its potential problems as an extrinsic motivator. The prospect of a patent or copyright [or trademark] on the final group output may help to focus individual contributors on a coherent group target, and unify the contributors so that they see themselves more as members of a single group rather than isolated individual contributors. The prospect of an intellectual property reward based on group effort may also increase group cohesiveness, leading to greater collaborative effort.

Mandel, at 21. Essentially the IP reward is protection from infringement, which really is bestowed individually.

The Fine Brothers created a problem when they thought they were creating a solution. They relied on IP law for the solution, but internet users reacted adversely. Not only was the problem exacerbated, their solution was not achieved. Mandel offers a different perspective and approach to this commonly sought solution (IP protection) for creatives. While his perspective may seem a bit utopian, I gleaned from Mandel’s article that more collaboration among attorneys, and individuals across industries will inevitably lead to a better understanding of how we advise our clients who, if they have not already, will conduct their business within the digital landscape.

[whitneyrmcguire]

Robust Entertainment, Art and Sports Law Week in Review 1/29/15

1.  Florida State University Settles with Jameis Winston Rape Accuser

2.  Heirs Fight Swiss Museum Over Looted Painting

3.  Disney Accused of Visa Violations

4.  Gallery Tells Jury Forgeries Were Too Good

5.  Museum Officials Face Discipline for Damaging King Tut's Mask

and more...HERE.

[whitneyrmcguire]

I Lived in Ghana Once

I studied abroad my Junior year of college in Ghana.  My first choice was Senegal, but I had a particularly abhorrent French professor who thwarted that plan. So I took the credit he denied me and went to Ghana. Below is an excerpt of a much longer essay I wrote as I began to process the whirlwind semester.  It’s been 9 years, and I’m still processing the experience. 

I arrived in Ghana in January 2007, the year of its 50th anniversary of national independence from British rule, as a student ready to take on whatever challenges studying abroad in a foreign country could bring forth. In my first month I lived with two families, underwent intensive language and cultural study, and found myself on one of the wildest emotional rides I'd been on in a while. When I first arrived I experienced a type of sensory overload. From the moment I stepped off of the plane into the moist-warm African air, the humidity accumulated on my bare body parts and I began to sweat profusely. It was an interesting feeling to know that I was standing on the same land and breathing the same air my ancestors most likely stood upon and inhaled. I was also a stone's throw away from the very ocean they crossed years ago. It was as if I had come back to the beginning and that being said, I figured that the arms of hospitality would be open to me, their Black American sister from the same mothers who had come back home after a lengthy voyage. To my surprise, however, my white counterparts got more of an "Akwaaba" (welcome) than I or the other three black Americans in my group. My double consciousness quickly changed to triple consciousness at the thought that I was not even accepted in my ancestors' homeland. Amid the over crowded streets, thick black smog, unreliable transportation, open sewers, spicy food, the occasional case of diarrhea, frustration, incredible heat, and the feeling of a communal isolation so irreparable, my morale began to ebb and flow and I retreated to my thoughts but I promised to save my tears for the slave dungeons at Elmina Castle. So I carried on with my journey tossing expectations out of the window, now relegating myself to merely experience without judgment- the most important bit of advice I could ever share with my brothers and sisters who plan to make their first trip to West Africa. 

[whitneyrmcguire]

An Ode to DC

Below is an article I contributed to Shade Magazine, a publication started by a longtime friend.  The article was written 8 years ago and I haven’t bothered to edit it, so don’t judge.  

I lived in DC for 10 years and had a very complicated relationship with the city.  Or maybe I just had a complicated relationship with myself. Either way, it’s refreshing to know that I had a positive outlook of the Nation’s Capital, despite my current sentiments.

Like the internet on this bogus computer I own, my productivity yesterday was limited to none. For some reason the white walls of my office, fka the storage closet  did not offer much inspiration to continue the vigorous task of Bates stamping (legal stuff) or data entry, so naturally I got distracted. Usually my escape from the corporate life includes a 45 minute countdown to 5:30pm, a very refreshing walk down 14th Street, NW from McPherson Square to T Street, an even more refreshing yoga class at Yoga District-- shameless plug--, a bite to eat, and finally a long Metro ride back to VA. This day was different however. I still maintained my 45 minute countdown, but instead of pursuing my normal routine, I decided to seek out something more or less…spontaneous. This decision was most likely inspired by my elation in the fact that I had completed my 90 days and that I was still employed! There’s nothing like a little job security. I digress. I walked past a plethora of office buildings toward Metro Center and finally found myself in Chinatown. While in a serious contemplative mode, I could not help but get distracted (a common occurrence for me) by the colorful wardrobe of the young women and men who passed me. Some call them locals; I call them children of the revolution. Don’t ask me what revolution, however. Their neon sunglasses, braided and twisted hair of different hues, neon striped socks, metallic leggings, checkered scarves around the neck, and Nike dunks and Airforce Ones in every color imaginable seemed more like a mosaic of fluid vibrancy and effervescence than an eyesore. As I battle with the sometimes bleak realization that I am all of a sudden a real adult now, (as opposed to a pretend one?) I find myself appreciating the different hues that sporadically highlight my black and white and sometimes grey world. Today, these colors were found in “uuurea” fashion, and I became entranced.  

           Continuing down 7th street I found myself suddenly moved to dance a little as the sounds of a go-go beat seemed to rock the entire Northwest corridor. A small crowd of people had formed in the vicinity and I stopped to watch. Four overturned trashcans of different sizes and two sticks made one of the illest go-go beats I’ve ever heard (even though they often sound the same to me). Maybe it was the organic nature of the beat. Maybe it was the nostalgia I felt for the drums I often heard on my travels to Ghana. Maybe it was the sheer appreciation for unadulterated talent. Whatever it was, it added to the soundtrack of my day, and that was enough to make me inhale deeply and smile.

           DC is one of the cultural Meccas of this Nation, but those of us, who spend 70% of our days behind a desk and a computer screen may forget to appreciate the sights and sounds that make this city such a great production. From the impromptu doo-wop group serenading you in the Metro station; to the mixtapes being pedaled on U St. and Georgia Avenue; to the underground bands, rappers, and other artists who gig nightly, one thing I think we all can learn from our city may be something so simple as to just stop and watch it all unfold.

[whitneyrmcguire]

I Have Dreams

Below is a speech I gave upon accepting the Dr. Martin Luther King Jr. Award during my senior year at The George Washington University.  I happened upon this speech inadvertently while searching for something else in my vast inbox. Re-reading this speech reminded me of the tireless efforts I devoted to creating an environment where justice could flourish in my collegiate and local communities.  Since graduating, I became burnt out from the fight and dabbled in community initiatives and organizations, but reclaimed my energy for the internal battle I had to overcome in order to be an effective leader.  I am still in the midst of tackling my internal separatist tendencies, but I am happy to know that the person I was 8 years ago would be very proud of the person I am today. 

“Thank you. There are many people to whom I dedicate this award, because they have contributed to my spiritual and intellectual growth and have encouraged me to propagate the dream of Dr. Martin Luther King Jr.  First, I would like to thank my Mother, Melanie Moore, for preparing me to take on the obstacles of this unforgiving world. Her wisdom, strength, courage, compassion, talent, sense of humor, and intelligence are all of the qualities that I have aspired to obtain.  I hope I have done you justice, mommy. Thank you Daddy, for allowing me to exercise my independence and for letting me experience life for what it really is. And for putting up with my stubbornness J.  Thank you to my sorority sisters and friends for challenging me in more ways than one (haha) but for never leaving my side, and for always being the most reliable support system. I really appreciate you. Thank you to the faculty, staff and administration at GW, specifically, Mr. Tapscott, Professors Gail Wald and Jennifer James, Ms. Cannaday, and Nisha Branch for offering words of wisdom and letting me get on my soap box every so often. To my fellow recipients: thank you for living Dr. King’s dream. Your work on this campus clearly has not gone unrecognized, but there’s always more work to do.  I wish you all the best of luck in your future endeavors.  

           I pray to the east twice a day in the direction of the rising sun.  I’ve done this my entire life. I recite a liturgy of Buddhist prayers, allowing the same sun that rises every morning to do the same within my heart and to illuminate a clear path for the day, the month, the year and my life.  The Buddha of the Latter Day of the Law, Nicheren Daishonin, once stated that “To believe that Buddhahood exists within Humanity is the most difficult thing of all -- as difficult as believing that fire exists in water or water in fire. Nevertheless, the dragon is said to produce fire from water and water from fire, and although people do not understand why, they believe it when they see it occur.”

           To believe that King’s dream still exists in this world today is sometimes quite difficult for me. It’s almost as impossible as believing that fire exists in water or vice versa. Not long after I arrived back into the United States from my study abroad experience in Ghana, I read on the National Website for the NAACP that three nooses were found hanging from a tree at a high school in Jena Lousiana and six young black men were being prosecuted for physically assaulting a white classmate after racial tensions on the campus began to escalate.  Soon after news of the Jena 6 case flooded inboxes nation-wide, Meghan Williams, a college student in Virginia was tortured by six white people whom she barely knew.  The summer was unwinding but the country seemed to be heating up with hatred. I began to develop my action plan for the ensuing semester to figure out ways that I could educate those who were unaware of the events that had occurred and ways to ensure that it never happens again.  Putting my plan into action seemed quite difficult to say the least as I was faced with both apathy and resistance from many people.  But I trudged on. By the end of the semester, effective campaigns for change had been introduced, rallies were held, and supporters of Dr. King’s dream stood firm in the face of resistance.

           However difficult it may be for me to believe in the fulfillment of this dream when black people still find themselves brutally beaten by white police officers, when criminal justice is still quite unjust, when racist remarks and epithets find their way inside institutions of higher learning and academia, I lift the veil of doubt and frustration and let the light of Dr. King’s Dream, the dream of, peace and justice for all, encourage me to do the work that I have begun to do.

           The winners of the Martin Luther King awards have chosen to go against the current of this sea of apathy and ignorance. We have chosen to trudge through racism, injustice and inequality to lift those around us to higher grounds. We are GW’s dragons, capable of producing fire from water and water from fire, to effect significant change and to uplift this university significantly. And everyone in this room has that ability as well. This notion to me, is the embodiment of Dr. King’s dream and it is with great humility and gratitude that I accept this award.

           As long as I’m around, Dr. King’s dream will continue to shine brightly and illuminate the darkness of doubt and other factors which may hinder the attainment of equality and justice for all. I am an inextinguishable sun. Nothing is impossible.” - Whitney McGuire ‘08

[whitneyrmcguire]

Second Multi-Million $ Royalty Lawsuit Filed Against Spotify

Via Complete Music Update:

“The big story in music remains the rapid growth of everything in the streaming sector, you know that. Continuing that trend, Spotify has just doubled the number of multi-million dollar mechanical royalty lawsuits its tackling in less than a month. Everything’s booming in Streamsville. So yes, as expected, a second lawsuit has been filed over Spotify’s alleged failure to pay mechanical royalties to at least some publishers and songwriters in the US. 

This one is being led by law firm Gradstein & Marzano, last seen in these parts successfully repping Flo & Eddie in their legal fight for royalties from satellite radio station Sirius, for the airplay of their pre-1972 hits as part of the 1960s combo The Turtles. In the mechanical royalties domain the firm’s client is singer-songwriter Melissa Ferrick.”

Click here for full article: http://www.completemusicupdate.com/article/spotify-faces-second-multi-million-mechanical-royalties-lawsuit/#sthash.rTZSo7b8.dpuf