Bring Back Streaking!

John by J0NU from Flickr (Public Domain)

John by J0NU from Flickr (Public Domain)

Did you see the clip of the streaker on American Ninja Warrior?

He was pretty impressive until he was stopped by security! I was bummed to learn that this was a stunt and not a true streaker. This video made me wonder – whatever happened to streaking? I’m sure some people think it’s offensive, but I think it’s hilarious. Now that everyone has a smart phone in their purse or pocket, I suppose fewer people are inclined to strip down and run. But it still happens on occasion – i.e., Portland’s Naked Bike Ride, Bay to Breakers, etc.

In Arizona, streaking is illegal under the indecent exposure law. It is a felony if you expose yourself to a child who is under 15 years old, and you have to register as a sex offender if you commit this felony  two or more times.

Now, anyone who knows me knows that I am against the sexual abuse or sexual assault of any person, and I think it makes sense to differentiate between people who expose themselves to commit a sex crime (including flashing) and people who have other motives. When I think of “flashers,” I think of people who do what these two guys are insinuating:

In my mind, a traditional streaker has no sexual motive, but rather is violating a social norm. I have heard of other states where a public nudity is permitted as long as you are not sexually aroused, masturbating, or the like. Streaking should fall into this latter category.

Do I think the rules or going to change anytime soon? No. Arizona is a conservative state in general, and our legislature has more important issues to tackle than legalizing streaking. But it would be awesome if they did. Of course, if you are going to streak, be mindful of the likelihood that you will be videotaped or photographed while you’re doing it, and you may be at risk of being arrested for additional crimes such as trespassing and disorderly conduct.

If you want to know more about pulling off shenanigans like this legally, please check out my book Flash Mob Law, or you can contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

Summer Social Media PSA for Teens & Tweens

Texting by Jhaymesisviphotography from Flickr (Creative Commons License)

Texting by Jhaymesisviphotography from Flickr (Creative Commons License)

Summer is officially here! It’s hottest than Hades in Phoenix and the kids are out of school until August. I suspect that a lot of teens and tweens have a lot more free time than during the school year and they might be spending much of it glued to their cell phones and tablets. Here are my recommendations for having a summer without social media-based regrets:

Think before you post.

Think before you text.

Think before you chat.

Think before you tweet.

Think before you snap (a photo).

Think before you shoot (a video).

Think before you send (anything).

Remember, that there is a permanent record of everything post online or send to another person. You never know when someone is going to forward, download, screenshot what you thought was only going out to a small group or contained in a person-to-person communication. What you post or send doesn’t have the same emotional impact when we can’t hear the inflection in your voice or facial expression (especially sarcasm). You never know how a post will be interpreted out of context. What you thought was justified or funny in the moment may have long-term effects for you. (Just ask Justine Sacco – with one tweet she lost her job and appeared to anger the entire planet.)

Carter Law Firm's Postcards

These are my two rules of thumb regarding the internet:

  1. Don’t post anything online that you wouldn’t put on the front page of the newspaper.
  2. Assume everything you post online will be seen by four people: your best friend, your worst enemy, your boss, and your mother. If you don’t want someone to see what you’re thinking about posting, don’t put it out there.

These rules also apply to emails and text messages.

For anyone who is applying for jobs or college, those decision makers may be looking you up online. You want to be sure that what you post online is congruent with how you present yourself in-person or on paper. You don’t want to appear irresponsible or that you lack good judgement.

I’ve had to read the riot act to a teen who misbehaved online, and I would be happy to do it again if it means I can help prevent someone from posting something they’ll regret later. If you want to chat more about social media dos and don’ts, please contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

What Happened to Adult Wednesday Addams?

Haunted House by barb_ar from Flickr (Creative Commons License)

Haunted House by barb_ar from Flickr (Creative Commons License)

Earlier this year, I discovered Melissa Hunter’s “Adult Wednesday Addams” on YouTube. It’s a collection of short videos featuring Melissa playing a grown-up version of the iconic Addams Family character. In each video, Melissa dresses up like Wednesday Addams (black dress, long braids, pale skin, and deadpan attitude) and plays out everyday occurrences (like interviewing to be someone’s roommate and going to work) while embodying the Wednesday Addams character. She is a talented, smart, and funny writer.

Recently I noticed that all of Melissa’s adult Wednesday Addams videos were pulled from her YouTube channel. (You can still find them on others’ channels.) Apparently, Tee & Charles Addams Foundation, the copyright holder for the Addams Family, flagged her videos for copyright infringement after her video where Adult Wednesday Addams responds to catcallers gained attention by the international press.

So of course, my question in this situation is, “Are the Adult Wednesday Addams videos infringing on the original Addams Family copyright or are they protected by fair use?”

The law is complicated and there is no mathematical equation that will definitively show whether this is fair use. That is up to a court to decide based on the merits of the case. There are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright: PAIN.

P = Purpose and character of your use

A = Amount of the original used

I = Impact on the market

N = Nature of the work you copied

Here’s my take on how the fair use factors apply to this situation:

  • P (Purpose): Adult Wednesday Addams transforms the original Wednesday Addams character who was a tween in the latest Addams Family movie (Favors Melissa). I don’t remember if Melissa was running ads on her videos, but if she was, that would be a strike against her – but not a deal breaker (Favors Addams Foundation).
  • A (Amount): Compared to the entire Addams Family franchise, Melissa only used a single character (Favors Melissa) but compared to the copyright in the Wednesday Addams character herself, Melissa copied a substantial amount (Favors Addams Foundation). However, part of what makes Adult Wednesday Addams work is that we know that she is copying the original. That’s what makes it so funny, and parody is generally protected by fair use.
  • I (Impact on the market): Apparently there is a new project in the works for the Addams Family, but I don’t know if Melissa’s work will have any effect on that. Melissa’s videos are only a few minutes long, compared to the longer TV shows and movies created using the original characters’ story line. Her work is definitely not a viable substitute for those (Favors Melissa).
  • N (Nature of copied work): The Addams Family has been made into cartoons, a TV show, and movies. Melissa Hunter created short YouTube videos. Although these are both audiovisual works, they cater to different audiences (Favors Melissa).

Do I think what Melissa did was fair use? Yes. I hope she’s fighting the claim that her work is copyright infringement, and I hope whoever is working on the Addams Family remake offers to hire her. Remember, fair use is a defense, not a permission slip, so Melissa has to prove to the court that what she did was legal if she chooses to fight this.

Yesterday, Melissa released a video with an update about Adult Wednesday Addams:

I’m glad to see that Melissa is as sassy as ever and that she’s working on this while putting energy into new projects too. Keep wearing that dress!

Fair use cases are usually complicated. If you want to chat more about fair use and copyright, please contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

Creator Rights | Phoenix Comicon Recap

Photo by Scott Adams for Phoenix Comicon - sorry I had to crop out the Phoenix Comicon logo to fit the dimensions of my site. View the original here: http://bit.ly/1QqlW48.

Photo by Scott Adams for Phoenix Comicon – sorry I had to crop out the Phoenix Comicon logo to fit the dimensions of my site. View the original here: http://bit.ly/1QqlW48.

I had an awesome time presenting on Creator Rights at Phoenix Comicon this year with Javier Hernandez. His comic book series, El Muerto, was recently made into a movie and a fan created a fan film that was shown at the Con. It was really interesting to hear his story as an artist trying to muddle through the legalities of working in the arts with the help of his lawyer.

I don’t prepare much for my talks at Phoenix Comicon. I feel like it’s my job to be there to explain legal concepts in plain English and answer the audience’s questions about copyright, trademarks, contracts, and fan art. There’s always a fun smart audience with thoughtful questions. It’s a privilege to be invited back multiple times. Here are some of the highlights from this year.

You have Rights in your Original Creations
There is no legal protection for ideas but there is for original works of authorship once you’ve captured your ideas in a tangible medium such as paper or a digital file. The copyright laws were designed to protect original storylines and fully-formulated characters. I often recommend that artists at least register their “story bible” with the U.S. Copyright Office to maximize their legal rights related to their work.

Once you create a comic, you have the exclusive right to copy, distribute, display, perform, or make derivative works from your original work. That’s why the movie studio had to get the option (aka license) from Javier to make a movie from El Muerto, because a movie is a derivative work. Javier didn’t authorize the creation of the fan film and so when he went to see it, part of his motivation was to see if he wanted to exert his legal rights to stop the creators from showing it in other forums.

Protect your Trademarks
Someone in the audience shared a horrific story. He created a comic and after he started sharing his work with others, someone else started a similar comic – with the same name. Here’s the kicker, the second guy registered the name with the U.S. Patent and Trademark Office. What a nightmare. I told him to call a lawyer to try to sort out this mess.

A lot of beginning artists and people who create art as a hobby don’t understand their rights and how they can avoid problems like this by registering their trademark before their competition does. Or if they understand their rights, they don’t invest the money to file the proper applications with the federal government. These types of problems happen all the time. Check out what happened when two restaurants decided to call themselves “Burger King.”

When Contracts are Involved, Call a Lawyer
If you are lucky enough to create art that someone wants to buy or license, call a lawyer. The other side is going to present you with a contract that was written solely based on their interests. You need someone who is equally versed in entertainment contracts to represent you. Lawyers talk to lawyers – so hire someone who can explain the process, understand your priorities, and advise you of your options.

Javier and I had a fantastic time doing this panel – sharing our experiences and knowledge from the creator’s and lawyer’s perspective. It was a wonderful juxtaposition for the audience. I also did a panel at Phoenix Comicon on Fan Art/Fiction and Copyright. If you want to know more about that specific topic, check out this post I wrote last year with a handy mnemonic device.

If you have questions or want to chat more about creator rights, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

Supreme Court Rules on Social Media & Free Speech – What It Means

Man Holding Laptop Computer Typing While Dog Watches by Image Catalog from Flickr (Public Domain)

Man Holding Laptop Computer Typing While Dog Watches by Image Catalog from Flickr (Public Domain)

Earlier this week, the U.S. Supreme Court released its ruling on the first social media free speech case.

Anthony Elonis was previously convicted for violating a federal law for posting threatening messages on his own Facebook page. The court that convicted him did so based on the negligence standard, which is whether a reasonable person would interpret his statements as threats.

The Supreme Court ruled that the lower court used the wrong standard in making its decision. A court can’t use the reasonable person standard to decide cases like this – it has to be higher standard than that.

So what happens now? The Supreme Court sent the Elonis case back down to the lower court. The lower court will have to decide whether it should apply the recklessness standard or whether it should examine Elonis’ intent behind the posts in question.

What does this mean for other cases, perhaps those involving domestic violence or cyber harassment? We’ll see. All we know now is that the court has to apply a higher standard than simply asking whether a reasonable person who interpret a statement as a threatening. We will have to wait and see what standard will ultimately apply.

Legal Side of Blogging Book CoverDo I think the Supreme Court made the right decision? Yes. Words are clumsy beasts, especially on social media where we deal with words without inflection and non-verbal cues to decipher what the speaker is saying. I don’t want to see people punished for being inarticulate when exercising their First Amendment right to free speech. We need to examine the statement in the context in which it was made when determining whether a statement violates a criminal law.

As always, think before you post. Don’t use this decision as a license to post whatever you want online. You can face serious repercussions criminally, civilly, and socially for what you post on the internet. If you want to read more about this situation, I highly recommend a post written by my fellow legal eagle, Mitch Jackson. If you’re looking for a resource about internet and social media law, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

If you want to chat more about free speech and the internet, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

Richard Prince’s “New Portraits” – Art or Infringement?

Photo courtesy of Gagosian via Gothamist

Photo courtesy of Gagosian via Gothamist

A few people sent me links to articles about Richard Prince’s art show called “New Portraits” at Gagosian gallery. He took screen shots of other people’s Instagram photos, added one comment, and is selling them for $100,000 each. From what I’ve read, he never asked any of the Instagram users for permission to use their images and they aren’t getting any of the profits from the sales.

Apparently Prince has done things like this before – taking others’ work, altering it, and selling it. According to reports, he’s been challenged in court and won in previous situations. (Fair use is a portion of the copyright law that allows others to build on other’s work in original ways, like adding commentary, creating a parody, or making new artistic statements.) Prince’s history of being victorious in the courtroom might make these Instagram users hesitate to bring a lawsuit against him now, but I’m not convinced they would lose.

There is no cut-and-dry, black-and-white mathematical equation that will definitively show whether what a person did constitutes fair use or copyright infringement. That is up to a court to decide based on the merits of the case. The court can consider any evidence it wants in these situations, but there are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright. The acronym for the fair use factors is PAIN:

P = Purpose and character of your use

A = Amount of the original used

I = Impact on the market

N = Nature of the work you copied

Here’s my take on how the fair use factors apply to this situation:

  • P (Purpose): Prince used others’ work for a commercial purpose (to make money) and didn’t transform the originals except to add a single comment to each one and create a collection. (Does not favor Fair Use)
  • A (Amount): Prince took screen shots of each user’s Instagram profile and used an entire photo. (Does not favor Fair Use)
  • I (Impact on the market): As far as I know, Prince is the only person currently selling these images, but the fact that he’s selling them could impact the original artists’ ability to sell their work. The fact that Prince is selling these prints doesn’t change whether these images are available to view the original images online. (Weak argument for finding Fair Use at best)
  • N (Nature of copied work): Prince took images from a social media platform and created “art.” There might be an argument that the audience that would seek these images out online is different than an audience who would be interested in Prince’s work. (Weak argument for finding Fair Use.)

Do I think this is fair use? No, but I’m not the judge in this situation. We won’t know for certain until and unless the Instagram users’ whose photos were used in Prince’s work bring lawsuits against him for copyright infringement. I suspect many or all of these photos are “selfies” so these individuals may have a claim against him for commercializing their images without consent as well as a copyright infringement case.

Remember, fair use is a defense, not a permission slip. If these users sue for copyright infringement, Richard Prince would have the burden of showing that what he did was sufficient to qualify for fair use.

Fair use cases are usually complicated. If you want to chat more about fair use and copyright, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

More articles about this situation:
Artist Steals Instagram Photos & Sells Them For $100K At NYC Gallery
Richard Prince Sucks

Dislike or Defamation – Rules about Online Reviews

https://www.flickr.com/photos/jesper/269194762

John and Jesper | Thumbs Down by Jesper Rønn-Jensen from Flickr (Creative Commons License)

When it comes to online review sites like Yelp and TripAdvisor, it may be difficult to do to determine when a reviewer is a legally sharing their dissatisfaction about you and when they are out-and-out defaming you. The former is legally protected speech that requires damage control; and the latter may require a cease-and-desist letter or a lawsuit.

One of the best things of out the Internet is that it gives Joe Average people a platform to share their thoughts. Review sites like Yelp and TripAdvisor let multiple people share their experiences with a business that others can read and the business owners can respond to reviews within this forum. They can give you an idea of what to expect before you arrive and whether a particular place will fulfill your needs or expectations. I find it highly valuable, and when I’m satisfied with the service I received from a company, I often asked them where I can leave positive feedback for them online.

When a company sucks, I don’t hesitate to share those thoughts either. I believe that friends don’t give friends bad referrals, and that there is no problem with calling out a business that does a particularly bad job. But there is a right way and a wrong way to do it.

1. Stick to the Facts: Unless you have a nondisclosure agreement that prevents you from sharing in your experience, there shouldn’t be a problem if you simply state the facts of your experience – i.e., the delivery people were 2 hours late, your food was cold when it arrived, the clerk apologized for not having the item you wanted.

2. Share your Feelings: Share how you felt during the experience – you were pleased that the restaurant comped the meal that you sent back, you were angry that you missed an appointment while you were waiting for the delivery guys, you were shocked that the clerk stared at your chest instead of looking you in the eye when he/she spoke to you.

3. Be Accurate: Federal law requires you to be truthful and accurate when giving a review. Avoid half-truths and insinuations. There should be no doubt in the reader’s mind between what you wrote and what you meant. This law also requires you to disclose when you are compensated for providing your opinion – such as getting free products or paid for providing a review. (The penalty for violating this rule is a fine for up to $11,000.)

In general, be thoughtful about what you post online and reading each review carefully before you hit “post” or “save.” If you are making a statement that sounds like a fact, make sure that it is verifiable. So that means you can’t say that a particular restaurant gave you food poisoning unless you can present hard evidence (like a doctor’s note) that that particular meal is what made you sick. Otherwise, you might be better off calling or email laying the manager directly and explaining that you were sick shortly after eating at that restaurant and that they might want to make sure all employees are complying with the rules to avoid foodborne illnesses.

If you believe and online review may have crossed the line from expressing dissatisfaction to defaming a person or the company, contact a social media attorney to review the situation and advise you of your options. With so many people sharing their opinions and experiences on a multitude of platforms, this is an issue that is not going away any time soon. If you want to talk more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

If Someone Sends you a Photo of Themselves, Do you Own It?

Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Frequently I hear questions like, “If someone emails or texts me a photo of themselves, does it become my property?” Many people in this situation want to know if they own the photo and what they are allowed to do with it.

The answer to “Do I own the photo?” is “Yes” and “No.” Yes, you do own a copy of the photograph by virtue of the fact that someone gave it to you. However, owning a copy of a photograph does not mean that you own the copyright in the image, which is why you can’t do whatever you want with the picture. If the person who sent you a photo intended to give you the copyright as well, the copyright assignment would have to be in writing.

Think of getting a photo via email or text message like it getting a postcard in the mail. The postcard was addressed to you so you now own it, which means it you can look at it, put it on your refrigerator, and if the message doesn’t contain something that any reasonable person would know the sender would expect to be kept private – you could show it to others. However, you cannot make photocopies of the postcard and sell it or send it to others without the copyright holder’s permission.

Keeping this in mind, it should be obvious that the fact that someone sent you a photograph does not give you permission to do whatever you want with it. You would have to get permission from the copyright holder to post it online, and if it’s an image the sender would expect you to keep private, merely showing it to others could be illegal. If the photo in question is an explicit image, showing it to others could violate your state’s revenge porn law, which may be a felony.

With few exceptions (like child pornography) having a photo is not illegal but what you do with it could be. Therefore, if someone sends you a photo of themselves, you may keep it for your personal viewing pleasure but it could be illegal to share it with others.

This is an area of law that is still evolving. Since mobile devices come equipped with cameras, it’s important for everyone who has one is mindful of their dos and don’ts regarding sending and receiving images. If you want to talk more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

What’s Up with the Cactus-Cams in Paradise Valley?

Four Peaks Seen Through Cactus Goal Posts by Alan Levine from Flickr (Creative Commons License)

Four Peaks Seen Through Cactus Goal Posts by Alan Levine from Flickr (Creative Commons License)

If you’re at an intersection in Paradise Valley and you see a saguaro cactus that looks fake, it probably is.

Paradise Valley recently installed three fake cacti that contain cameras that will be snapping photos of every license plate that goes by. Ken Burke, Paradise Valley’s City Manager said the images will be compared against the “hot list” which includes cars that are reported stolen or part in Amber Alerts. The city said the images that are not connect to any investigations will be destroyed after 180 days.

I’m a bit skeptical of this reasoning for the cameras. According to the Maricopa County Attorney’s Office, vehicle thefts have been steadily declining in recent years. And according to the official Amber Alert website, there was only 1 Amber Alert in Arizona in 2011, the most recent year for which a report was released. I wonder if they installed them to search for cars that are related to crimes or people with warrants.

And what about privacy? The law has firmly established that you have no expectation of privacy in anything you do in public, including where you go in your car. The U.S. Supreme Court ruled that the police need a warrant to put a GPS on your vehicle. Snapping your photo every time you drive through a particular intersection isn’t as extreme as tracking your every move, but it could be used to track patterns of behavior.

On its face, this looks like a waste of time and money, but I would be curious to hear an update about these cameras in six months. I would want to know how many crimes they’ve helped solve and if they’re being used for additional tasks.

Privacy issues aren’t going away any time soon. If you want to chat more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.