My readers know that I am always following developments in and around copyright law and the many ways that developing technology is challenging existing legal structures. [See Here] That’s why I was shocked when the following tweet came across my Twitter feed:
For the uninitiated, Instagram is “a way to share your life through pictures” captured on a mobile phone, often using a “filter” to transform the image. In other words, Instagram is about sharing content that one creates. Under U.S. law, the author (creator) is the copyright owner.
Copyright protects works of creative artistic expression such photographs, and importantly, gives the owner the exclusive rights to reproduce, distribute, publicly display, publicly perform, and modify a work for a certain period of time.
My gut reaction was to think that New York artist Richard Prince’s canvases featuring other people’s Instagram photos is a clear case of copyright infringement. To paint a complete picture (pun intended), it must be noted that Prince has added a short message posted as a comment below what is otherwise just a screen shot of the original image.
However, as many legal pundits have commented, the situation may be more complicated. The is a good example of the new legal issues that our culture of mash-ups and remixes have created. The internet is awash with altered, reposted, and aggregated media like text, music, and video. Sophisticated, ubiquitous and surprisingly simple tools pervade a growing range of Internet-based platforms turning amateurs into auteurs. Without doubt these platforms have spawned a huge wave of creativity — but they also raise difficult questions about attribution and ownership.
It is not surprising that Prince is unabashed and unreserved in his appropriation of other’s photographs. This is not the first time Prince has landed in the legal cross-hairs for appropriating another’s art. In the landmark 2013 copyright case of Cariou v. Prince, Prince prevailed after being sued by French photographer Patrick Cariou. That lawsuit concerned Prince’s 2008 “Canal Zone,” a series of paintings that incorporated photographs by from Cariou’s 2000 book Yes, Rasta.
That case turned on an increasingly criticized formulation of the “fair use” doctrine, the “transformative use” test as applied by the U.S. 2d Circuit. “Transformative use” is not one of the four enumerated fair use factors. Rather, it is simply one aspect of the first fair use factor, which looks to the “purpose and character” of the use. The future of the Cariou “transformative use” test was cast in doubt by the 7th Circuit’s withering criticism of its application in the recent case of Kienitz v. Sconnie Nation .
Whether Prince’s “remix” works are “fair use” or little more than theft may depend on how the 2d Circuit chooses to apply the “fair use” test, should it come to that, given the 7th Circuit’s thorough criticism of the 2d Circuit’s previous application.
By Talya Minsberg A new Israeli law prohibits fashion media and advertising from using Photoshop or models who fall below the World Health Organization’s standard for malnutrition. When a 14-year-old girl delivered a 25,000-signature petition this week to Seventeen asking them to curb their use of Photoshop, the magazine issued a press statement that congratulated the girl on her ambition but was conspicuously silent on changing their editorial practices.
So, culturally and historically, the reason women care so much about fashion is that until very recently, we weren’t allowed professional, legal or vocal ways of expressing ourselves. Fashion was a way of articulating our feelings about ourselves.
David M Adler, noted entertainment and creatival arts lawyer will be participating in the Visiting Artist Series with Reginald Lawrence (Shepsu Aakhu).
Tuesday, April 10, 2012 11:50 – 1:30 pm
DePaul Center – Room 80051 E. Jackson Blvd.Chicago, IL 60604
Lunch will be served.
Visiting Artist Reginald Lawrence (Shepsu Aakhu) will discuss the legal issues that he has faced in his multi-dimensional career as a playwright, producer, director, and arts educator. In particular, he will focus on the life cycle of a theatrical production from dealing with authors to hiring actors, directors, and crew to mounting the finished production. He will share his perspective on legal questions related to collaboration, intellectual property, and production credit.
Leading Chicago arts lawyer David Adler will join in the conversation, and Professor Margit Livingston will moderate.
For more information on the Visiting Artist Series, please click here.
Registration: General registration is $25 for the 1.5 hour CLE discussion. To register, please visit http://www.regonline.com/reginaldlawrence.
DePaul students, faculty, and staff can register to attend for free by emailing Cecelia Story at firstname.lastname@example.org.
DePaul University College of Law is an accredited CLE provider. This event has been approved for 1.5 CLE credits.
While small businesses often need some legal advice, they can’t always find a professional with the right expertise at a budget the small business can afford. Since small businesses usually don’t need lawyers that often, when it comes time to review a contract, buy out a partner or protect their brand and trademark, they often don’t know where to start. The purpose of this article is to give executives a business owners a guide on how to ask a prospective lawyer the right questions to get the service one needs at a price that one can afford.
To get answers to questions about hiring a lawyer, please select one of the links below.
Lawyers are highly-trained professionals who counsel individuals and businesses in a full range of personal and corporate legal matters. Many business transactions have legal implications, so you should try to find a lawyer whom you can treat as a trusted advisor. These questions are designed to help you choose the right lawyer for your situation.
What can a lawyer do for me?
Lawyers provide legal guidance. This doesn’t mean that they can make your business decisions for you. A lawyer should identify legal issues of concern to you or your small business, tell you what the law says about these issues, and advise you on how to address them.
How can a lawyer help me in setting up a business?
A lawyer can:
Explain the advantages and disadvantages of a sole proprietorship, a partnership or a corporation;
draft a partnership agreement or incorporate your company;
review financial documents for your business such as a loan;
review leases of premises or equipment;
act for you in the purchase of property;
review franchise agreements;
draft standard form contracts for use in your business;
advise you how to best protect your ideas, trademarks, designs and know-how.
How can a lawyer help when my business is up and running?
A lawyer can:
help you negotiate contracts and put them in writing;
advise you on hiring and firing employees;
advise you about doing business in other provinces and countries;
help you collect unpaid bills;
defend any lawsuits against you;
advise you about taxes.
If I decide to get out of business, how can a lawyer help me?
A lawyer can:
help you sell your business;
help you sell you ownership interest if you are one of several owners;
arrange for the transfer of the business to your children;
dissolve a corporation or LLC.
When do you need a lawyer?
The recommended approach is to seek the advice of a lawyer whenever a legal issue arises that involves your business. Since it is not always clear when that happens, many problems are solved without resorting to lawyers. When an issue arises, you must first decide whether you need a lawyer at all. In order to know if you should solve your problem on your own, ask yourself the following questions:
What are the consequences if you are unsuccessful?
How complex is the law in your situation?
Do you have the time and energy?
If you are still unsure, some outside professionals, advisors or para-professionals may be useful:
Check with your Board of Directors or Board of Advisors; they can provide information about the steps they went through and the resources they used in solving their problems. Contact government and non-profit organizations for income tax, legal aid, consumer protection, employment standards, etc.
Check with other professionals: accountants, bank officers, insurance agents. For some routine matters, legal assistants, para-legals and notaries public are useful. While not allowed to give legal advice, they can provide added value in familiarity with standard corporate forms and filing requirements.
Also, don’t forget public libraries, legal aid services, student legal services, small claims courts, reading self-help books and other resources such as books, pamphlets and videos.
How do I contact a lawyer?
Give him a call. Most lawyers are happy to steer people in the right direction and calm fears about the legal process. There are several advantages to this approach. The main one is that a lawyer can quickly cut to the heart of your problem, distinguish between legal and non-legal problems. Another advantage is that you usually will not be charged for this phone call. Finally, a lawyer will not only keep your problem confidential, but has the ability to assess it from a less emotional perspective.
Please feel free to call us at (866) 734-2568 should you have any questions.
How do I find a lawyer?
First, try to identify the areas of law in which your problems fall so that you can find a lawyer capable with dealing with all these areas. Some of the main areas of legal practice linked to business are:
Corporate/commercial/securities law (incorporation, buying/selling a business, drafting shareholders/partnership agreement)
Labor/employment law (negotiating and interpreting collective agreements, resolving disputes, explaining obligations, advising about restrictive covenants, dismissals)
Civil litigation law (suing, being sued, collecting debts, negotiating and settling)
Real Estate law (buying or selling land or property, negotiating a lease, solving landlord/tenant disputes, mortgaging property)
Wills and estates (drafting or challenging a will, probate)
What should I ask a prospective lawyer?
Some questions you should ask a prospective lawyer are:
How many years are you in practice?
How long have you been with your current firm?
What areas of law do you practice?
Are you a partner or an associate?
Time and accessibility
How quickly can I expect a resolution?
When can we meet?
How much can I expect top pay?
How do you charge for your services?
Do you provide your clients with a detailed written statement of fees?
Do you charge anything for the first meeting?
Do you communicate via telephone, cell phone, fax or email?
How can I help my lawyer?
Ways you can help your lawyer include:
Be honesty and open
Tell the lawyer all the facts, even the ones that you think are “bad”.
Keep your lawyer up to date on any events or any changes relating to your file.
Ask for advice in plain language and summarize how you understand it.
Ask to be directed to any reading that you could do to better understand.
Ask for a description of the steps your lawyer plans to take and think about the way you could help at each step.
Stay informed and keep track of what transpires on your file.
Take notes at all meetings and list tasks to be completed.
Ask for copies of all correspondence on file.
Have confidence in your lawyer’s advice and follow his/her instructions.
Do not harass your lawyer. If you need more attention, discuss way in which he/she can keep you informed.
Be prepared to accept both positive and negative advice.
Never do anything concerning your case without consulting your lawyer.
Provide information to your lawyer as soon as possible after he/she requests it.
Pay your bills on time and be available if your lawyer needs you.
How do lawyers calculate their fees?
Depending on the complexity of the issues, the services required, and the degree of experience of the lawyer, fees can be charged in different ways:
Billed hourly: charged a rate for the time they spend working for you (e.g. the time spent reading a letter or talking on the phone).
Flat Fee: charge a flat rate for a particular matter, usually when they can predict how long the work will take: incorporations, trademarks.
Contingency Fee: in some matters, the lawyer’s fee will be a stated percentage of the amount of money collected from the lawsuit.
Retainer: provide a range of specified services for a fixed monthly or annual fee.
In addition, lawyers will also bill for disbursements such as long distance phone calls, photocopies, document filling fees, experts’ reports and travel expenses.
Safeguarding Ideas, Relationships & Talent®
Executives face an often confusing and changing set of challenges trying to ensure that their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex and inconstant legal and regulatory environment. Adler & Franczyk is a boutique law firm created with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.
We approach our relationship with each client as a true partnership and we view our firm as an extension of their capabilities. Our primary value is our specialization on relevant and complex issues that maintain the leading edge for our clients. We invite you to learn more about the services we offer and how we differ.
We look forward to the opportunity to discuss any questions you may have regarding the range of business, technology and intellectual property services we offer. Please feel free to call us at (866) 734-2568 should you have any questions.
David M. Adler will be addressing the Chicago Bar Association’s Media & Entertainment Committee on May 27, 2010 at 12:15 P.M. on the topic of Advising Clients When Creative Content Does Not Equal Copyrighted Content – Transactional & Litigation Strategies and Brief Review of the UrineTown case.
David Adler represented the Chicago stage play team who created, produced, and directed a local run of UrineTown. In response to threatened lawsuit/s, the team filed suit against another team of producers who formerly staged the play in New York. (Mullen v. SSDC, et. al.)
One of the key issues addressed in the lawsuit dealt with whether or not creative endeavors such as stage directing and lighting design could be considered recognized works of authorship under the U.S. Copyright Act and defend its denial of copyright registration applications filed by the Broadway production team. Prior to settlement, the U.S. Register of Copyrights filed a motion to increase the time with which to enter into the case. There are numerous implications with respect to copyright protection and how to best serve your clients interests.