Political Divisions, Copyright Law, and a Strange Green Amphibian Meme - Pepe the Frog gets his Day in a Kansas City Area CourtFebruary 27, 2018 | John Patterson
Pepe the Frog, a cartoon character created by comic book artist Matt Furie in the mid-2000’s, started out innocently enough. According to an interview given by Furie to the Daily Dot, Pepe’s philosophy on life was simply “feels good man.” Unfortunately for Pepe, however, he became an internet meme thanks to the notorious 4Chan message board. While some of the memes have maintained the laid back philosophy originally espoused by Pepe, it appears that the character has been adopted as a symbol of the “alt-right.” Consequently, many Pepe the Frog memes contain overtly political messages, which are perceived by many as highly offensive or even racist.
Kansas City artist Jessica Logsdon appears to have capitalized on the Pepe phenomenon, and began creating, and selling on-line, politically charged artwork featuring a green frog with a striking resemblance to Pepe. Furie, the original creator of Pepe, has sued in the United States District Court for the Western District of Missouri, alleging copyright infringement and seeking damages and injunctive relief against Logsdon. The Complaint alleges that Pepe was originally a “peaceful frog dude,” but that:
“[I]ndividuals like Logsdon have misused Furie’s Pepe character and copied Pepe’s images for use in dozens of images sold online to promote violent and hateful messages espoused by alt-right fringe groups. In doing so, Logsdon not only copies Furie’s original creation, but also freeloaded off Pepe’s popularity and Furie’s labor.”
Logsdon has answered the Complaint, admitting that she is a “political artist,” and that she has used “Pepe” in the title of some of her artwork. But she denies that she has copied the image created by Furie, while simultaneously claiming that her use of the image constitutes “fair use.” Logsdon also claims that Furie lacks any registered copyright in the image of Pepe the Frog.
Beyond its obvious socio-political angles, the case has wider legal ramifications as well, and we will observe with interest how Pepe the Frog’s meme status plays into the claims and defenses asserted by the parties. We will continue to monitor the case and provide updates in this space.
The rise of streaming music services has changed the landscape in ways that most would not have imagined even a decade ago. Among these changes are the ways in which performers, songwriters, and other copyright owners are compensated when their works are streamed on various devices. Simply put, the laws which pertain to such compensation have not kept up with the state of technology. The Music Modernization Act of 2017 (HR 4706 – 115th Congress), a piece of proposed legislation currently being considered in Congress, seeks to address some of these issues. This article touches on some of the more salient aspects of the proposed law.
Doing Away with Bulk Notices of Intention
In order to distribute a sound recording, any would-be distributor must first obtain a license from the owner of the copyright. This is often accomplished by providing a Notice of Intention (“NOI”) to the owner, either directly or by filing a copy of the NOI with the United States Copyright Office when information regarding the owner cannot be easily accessed. Presently, large music streaming services such as Spotify employ a process of filing NOIs in bulk with the Copyright Office, after which time such services simply start streaming the sound recordings. Many copyright owners believe that this bulk filing process gives them short shrift, depriving them of rightful compensation when their works are digitally streamed without their knowledge.
The MMA proposes to rectify this situation by creating the Musical Licensing Collective (“MLC”), a body that would be funded in part by the various large music streaming services. The MLC would collect accurate data regarding the identities of appropriate copyright owners. It would also grant blanket licenses to the streaming services. Presumably, this would allow the streaming services to more accurately identify copyright owners, while simultaneously lessening the legal risk which streaming services court by streaming songs without the knowledge of the copyright owner.
Royalty Rates for Compulsory Licenses
Even if copyright owners can be accurately identified after acquisition of compulsory licenses, they must still be compensated. Presently, this compensation, in the form of a royalty rate, is determined by the Copyright Royalty Board. This rate is set by statute, and employs a mechanical standard which is indexed to inflation. The MMA seeks to alter this formula, basing the calculation upon supply and demand. One of the Act’s sponsors refers to this new standard as the “willing buyer/willing seller” standard.
The MMA also proposes a number of procedural changes to the royalty process. Chief among these, it would do away with a fixed panel of rate dispute judges. Instead, a rotating panel of federal judges would hear rate disputes, presumably allowing for a fresh set of eyes upon disagreements between parties who had previously battled over royalty rights.
Unlike most federal legislation, the Musical Modernization Act has bi-partisan support. In addition, the streaming sites, which wield ever-increasing power in the industry, also appear to be supportive of the proposed law. We will continue to track the progress of the proposed legislation, and will provide updates as it winds its way through Congress.
In the recent case of We Shall Overcome Foundation, et al. v. Ludlow Music, Inc., et al., the United States District Court for the Southern District of New York was asked to determine the validity of the copyright to “We Shall Overcome,” the seminal tune of the civil rights movement made famous by folk singer Pete Seeger, which had been registered as a “derivative work” with the Copyright Office, twice in the early 1960’s.
A derivative work is one that is substantially copied from a prior work. In order to be copyrightable, the derivative work cannot be a simple facsimile of the prior work, but instead must “contain some substantial, not merely trivial originality.” By way of example, the court noted that copyrightable derivative works include things such as translation of novel into another language, or the adaptation of a novel into a movie or a play. A derivative work is only copyrightable for the “increments of expression beyond” what is contained in the underlying work. Put another way, a copyright on a derivative work should not hijack the copyright or public domain status of the original source material.
The disputed copyrighted version of “We Shall Overcome” was actually based on an earlier version that had entered the public domain in the late 1940’s. Plaintiff argued that the copyrighted version, or, more specifically, one line of the copyrighted version, was essentially the same as the public domain version, save for a minor lyrical discrepancy introduced by the aforementioned Pete Seeger when he sang “we shall overcome” rather than “we will overcome.” Defendant argued that this was no minor discrepancy, and went so far as to retain an expert in ‘musical hermeneutics’ to opine that the change from “will” to “shall” rendered the meaning of the songs different, and thus entitled the derivative work to copyright protection.
In its 66 page order granting summary judgment to plaintiff and invalidating the 1960’s copyrights to ‘We Shall Overcome,” the court laboriously traced the history of the tune, both lyrically and musically. After much explication, however, the court based its decision on a rather simple proposition: that the change in wording from “will” to “shall” did not render the disputed version original enough to make it a copyrightable derivative work.
There are lessons in this case for both artists who produce derivative works, and the attorneys who represent them. First, no matter how often an artist plays an “old standard,” and no matter how closely associated that song may be with the artist, he will need do more than change a few words or notes around, in order to get copyright protection for the derivative work. Next, practitioners must take special care to clearly outline source material and content differences when registering a derivative work with the Copyright Office. As the court pointed out, defendant lost its strong presumption in favor of a valid copyright because the 1960’s applications failed to identify the proper source material, and failed to set forth the lyrical differences between the public domain version and the Seeger version of “We Shall Overcome.” Finally, it is apparent from the opinion that this dispute engendered full throated, i.e. very expensive, litigation. The parties hired numerous expert witnesses, employed extensive written discovery, and filed motions aplenty. For the average artist, this could result in a process that breaks the bank. Artists and their lawyers should anticipate these issues at the inception of the copyright process, to head off the possibility of cost-prohibitive litigation in the future.
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The BSCR Art, Entertainment & Fashion Law Blog examines developments in all aspects of the law affecting those in the creative community, including artists, designers, musicians, and venue owners. Learn more about the editors, John Patterson and Jacqueline Gebhardt, and our Art, Entertainment & Fashion Law practice.
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