Thursday, February 17, 2005

The Copyright Fairy

Earlier this week I did a radio show on KPBS with Dave Winer. At one point in the conversation I stated that if the two of us were talking, and we had a Who song playing in the background, that if we recorded that conversation and made it into podcast then this would be copyright infringement unless we had the permission of the various rights holders. Dave retorted that he didn't necessarily think that is correct. There may be some strange application of Fair Use that I have missed over the last 7 years or so, but I don't believe that is the case.

What I found particularly funny about this exchange is how some of the blogger intelligentsia hold themselves out as thoughtful and informed yet fail to do the simple homework when all of the source materials are freely available for them. The DMCA? You can find it online. The 2nd district court rulings in MP3.com vs RIAA? Online. 9th district Court rulings in Napster vs RIAA? Online. Kazaa, etc. etc. Sorry for the lack of links but you get my point.

The conclusion that I have come to is that many including Dave wish that the Copyright fairy would come along and change the existing body of law because its just not fair. Although I agree with many who think that it would be great if we could use samples and play mashups, and play the songs of our youth in podcasts and home videos etc. the reality today is that you can't.

I propose that Dave and others who question the status of how podcasts fit into existing copyright law take some of the following steps:

1. Go read the law. I would include the DMCA and the various rulings in the dozens of digital music lawsuits over the past 7+ years.

2. Talk to your friends Larry Lessig and Hank Barry. I spoke with Hank briefly at Bloggercon and although we didn't talk at length I am certain that he would reiterate what I have said.

3. Immediately stop playing copyrighted music in your podcasts. If you care about the technology and its potential, don't make it a target for yet another round of lawsuits.

4. Start a conversation with the RIAA and the publishers. I am meeting with the CEO of the Harry Fox Agency next week. Understanding how they view the law and if there are opportunities to obtain experimental licenses or find other accommodations is a better way than just pretending or hoping that everything is just fine.

I would be extremely excited to find out that I am wrong about this, but given my experience, I have a very high degree of confidence that I am spot on.

I recall how the labels held technologists in great contempt during the late 1990s in the digital music space because many of them wouldn't take the time to either take a walk in their shoes, or take the time to understand the law. I find it ironic that those who would hold people to higher standards when they talk of the blogosphere, technology or internet ethics etc. can't do the same when faced with issues around intellectual property.

113 comments:

Anonymous said...

It would be nice if you expounded on your view of fair use, as it is pretty ambiguous. How might it apply? When would it not? My understanding was if the work was used sparingly, and there was an overall completely different point, and the whole thing was value-added, it would be a good argument for fair use.

Derrick said...

One of the problems with the DMCA, imho, was that it sort of stands on it's own as it relates to copyright law and it was poorly drafted. There currently isn't existing case law that I am aware of that would establish Fair Use as it relates to digital products. Specifically as it relates to Fair Use this post highlights an example of how poorly this legislation was drafted. Check out the excerpted portion.

http://www.sethf.com/infothought/blog/archives/000314.html

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Anonymous said...

How to Get Famous -- In only 90 Days!
by Joe Vitale

"I am indebted to the press of the United States for
almost every dollar which I possess..." -- P.T. Barnum,
1891

Charlie Stratton was a little boy who would not grow. He
was destined to be less than three feet tall.

His parents accepted the fact that he would never become
a full sized adult. The neighbors felt sorry for the nice
family and their midget. But no one saw an opportunity for
greatness. No one saw the potential for fame and fortune.
No one, that is, until one man came along in 1842 with an
eye for hidden possibilities. That man was P.T. Barnum.

Barnum taught the child to sing and dance. He taught him
to express himself, to accept how he looked, to feel good
about who he was. He also taught the boy how to charm and
entertain crowds. And he named the young prodigy a name
that still lives today: General Tom Thumb.

Years later, after Tom was rich and world famous, his
Connecticut neighbors would shake their heads and smile.
"We always thought little Charlie was a nice boy but not
very special," many said, "but we never knew he would
become a celebrity until Barnum took him and Barnumized
him."

P.T. Barnum took many people who were talented but
unknown and made them rich and famous. While Jenny Lind
was known as the greatest Swedish soprano in all of
Europe, few had any idea who she was in America. Yet
Barnum hired her, managed her, promoted her, and Jenny
Lind became so famous that 30,000 people met her ship
when it docked in New York in the mid 1800s. Again,
Barnum had practiced the art of "Barnumizing" someone.

And to prove that his techniques worked, when Lind
decided to save money and manage her own concerts
without Barnum's help, her crowds grew smaller. Lind
didn't get media attention. And she returned to Europe
without fanfare. Yet it was the same Jenny Lind that
the crowds had gone wild to see under Barnum's art!

That art is not lost today, of course. Throughout 1997
I smiled whenever I saw an article on the singer Jewel.
Here you have a woman barely out of her teens, with
only one CD released at the time, making front page
headlines and cover stories on national magazines.
Last I heard she had been hired to write her
autobiography (!) and was paid more than a million
dollars for it. Yet Jewel is barely an adult! How is
this happening? Clearly, Jewel is being Barnumized.

And that's how anyone can become famous today. You
need someone skilled in the art of Barnumizing. There
should be a latent talent or trait that can be
publicized, of course, but even that can be gotten
around. Richard Branson, the tycoon founder of many
businesses, including Virgin Records and Virgin
Airlines, Barnumizes himself by creating balloon
flights around the world. Whether he actually succeeds
at the trip doesn't matter. His events bring himself
international publicity. And he is not promoting any
talent except maybe the bold desire to be famous.

I've been personally fascinated by publicity and
publicists since I began researching P.T. Barnum a
few years ago. Here's a taste of some of the people
I've discovered:

* Harry Reichenbach was an audacious silent movies
publicist who made people famous in the early 1900s.
In fact, his incredible creative ideas helped stop
World War I.

* Edward L. Bernays helped make such stars as the
singer Caruso famous. And he got American women to
smoke with a publicity event he helped orchestrate
in 1929.

* And publicists today continue to Barnumize people
like chicken soup authors Mark Victor Hanson and
Jack Canfield. One reason Deepak Chopra remains a
bestselling author is the publicist behind him:
Arielle Ford.

But let's forget actors and actresses, authors and
speakers, singers and celebrities for a moment. What
about the average person? What about you? Can you be
Barnumized? Can you be made famous?

Without hesitation, I say yes. The secret is in
hiring a publicist who knows how to find or create a
news worthy subject out of you or something you do.

There isn't any one way to fame that fits for all
people. Sometimes all you need is one wild event to
draw attention to everything else you do:

* Barnum once showed a preposterous "Fejee Mermaid."
The curious half-monkey-half fish increased his
ticket sales 33%.

* In our own century a circus once displayed a
"Unicorn." While everyone knows unicorns aren't
real, ticket sales increased 55%. Again, the one
publicity stunt drew crowds to see everything else
being offered.

But you don't have to be wild and crazy to get
attention. In an article I wrote titled "Hidden
Selling," I talk about the various people who are
getting rich and famous by sponsoring events that
serve a good cause. Bill Phillips, for example, is
selling people on the idea of getting fit. He gives
away his book, and a video, and holds yearly
contests. He donates his money to the Make-A-Wish
Foundation. All of this is making Bill
internationally famous. How does he make any money?
He sells nutritional supplements. Back this fact is
"hidden." What Bill is doing is getting fame, and
then using that fame to make money. Very, very
smart.

One of the easiest ways to begin to seek fame is to
write a book. You still have to promote the book, of
course, but as an author you have an excuse to get
publicity. That's what Evel Knievel wanted when he
called me. He wanted me to help him write his life
story. He knew that a book could bring him more
fame. (I turned him down.) Many other people know
this fact, too, from Donald Trump to J. Paul Getty
to Madonna, and that's why they write (or hire
someone to write) books for them.

By now you've heard the quote from Andy Warhol that
in the future everyone will be famous for 15 minutes.
My belief is that if you create fame for yourself
that sticks, that fame will be a credential you can
bank on for the rest of your life.

Take Evel Knievel. His publicity stunts Barnumized
him in the 1970s. Yet we still know his name today,
thirty years later. He wedged his name into public
awareness through his fame tactics. And he's still
cashing in on his name. In fact, his name is so
strong that it has helped launch the career of
another daredevil: Evel's own son, Robbie Knievel.

Most people know the name Tom Thumb today, as well.
Why? The fame Barnum created for his little friend
still lives. Fame can do that for you, too. It can
become a lasting advertisement for who you and what
you do. From then on, everything you touch will get
automatic attention. Tom Thumb used to sell toys
and other products. So did Evel Knievel. As a
result of their fame, these otherwise mediocre
products sold. The products weren't important, it
was the name associated with the products. The more
famous the name, the more easily the products sold.
That's why Pepsi hires the latest hot stars to
appear in their commercials. Their fame brings
favorable attention to Pepsi.

But what if you can't afford a publicist? Easy.
What you have to do is become your own publicist
and Barnumize yourself.

Let me explain:

A year or so ago I wrote a news release that helped
make Jeff DeLong---barely 28 years old---wealthy.
The headline read:

50 Ways to Leave Your Lover (or anyone else);
Unusual cards don't greet, say Hit The Streets

Paul Krupin of the ImediaFax news bureau sent it
out by fax and email. As a result, Jeff did twenty
radio interviews the day his release hit. The
Associated Press picked up the story at least twice
and spread the word to the media nationally. The
number of times the story was reprinted is
impossible to tally. But as a direct result, Jeff's
website sales blasted to $20,000 a week.
(A week!)

What made his news release so successful?

1. There was news here.

I didn't have to dig too hard to see that Jeff's
greeting cards were newsworthy in and of themselves.
(You send his c-ya cards out when you *end*
relationships.) Too many people send out news
releases without any news. They are thinly disguised
ads. Editors hate ads. They want NEWS.

2. We tied it to current news.

Valentine's Day was right around the corner. While
Jeff didn't want to tie his release to that event,
I knew that doing so would cause the media to grab
his release. It helped make his news relevant.
Whenever you can tie your product or service to
existing news, you up the odds in being used by the
media.

3. We distributed the release to select media.

Paul Krupin hand picked a list of media contacts.
What you send out has to match the interests of
those receiving it. Don't send artillery news to
an anti-gun newspaper.

You can get publicity for virtually any product or
service. The media is desperate for news. Provide it
and they'll advertise your business. But how do you
find the right news angle? There are at least three
ways: (1) Have news, (2) invent news, or (3) tie
your business to current news.

Jeff's release was an example of one and three. (His
cards were news, and we tied it to Valentine's Day,
which was current news.) Here's an example of number
two: Inventing news.

When Barry Michaels in Australia hired me to write a
release for his clothing store, I had to hunt to
find the news angle. I talked to him and learned that
because he was getting bogus orders online, he
started calling virtually *everyone* who contacted
him. This turned out to be a breakthrough. Customers
were in awe that a retailer in Australia would call
them. Not only did Barry stop the bogus orders, but
he increased his sales with this extra personal
service. So I wrote a news release with this
headline:

Retailer Finds Way to Turn Bogus Orders Into Profit;
Australia teaches the globe how to make money online

As a result, the Investors Business Daily called him.
Since that is a national publication, Barry's news
release will turn into *thousands* of dollars in free
publicity. Very nice.

Finally, let me tell you what I did a few months ago.
In mid-June I bought a mermaid. Yes, a mermaid. P.T.
Barnum had one and I figured it would be cool if I
did, too. It turned out to be a disappointment and I
felt like an idiot for getting it. But then I saw a
publicity opportunity. So I wrote a news release
(using method number two) that began with this
headline:

Barnum Expert Suckered Into Buying "Real" Mermaid;
Discovers curiosity as powerful marketing tool

The response stunned me. The editor of the American
Legal Association's newsletter asked if they could
run the story. Radio hosts wanted to interview me.
An A&E Biography TV show on Barnum plugged my book,
causing my book to sell out overnight. Ah, I love
this!

The point is, news angles are everywhere. Start to
think like a reporter, get creative, and plug you
or your business *within* your story. It's the key
secret to getting rich and famous today----within
only 90 days---and with or without a mermaid!

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