o’ the Times
years ago I was involved in some litigation involving Prince,
whom I believe at the time was still answering to “The Artist
Formerly Known as Prince” or that silly little symbol that
looked like a drawing of a can opener. Prince sued a couple
of Swedish fans who run the Web zine Uptown.se (they’re still
there!), accusing them of all sorts of things, including the
unauthorized use of the little can-opener (which was referred
to in the litigation papers as “the unpronounceable symbol”).
Prince had registered the symbol as a trademark, and also
had a registered copyright in it as a two-dimensional drawing.
Prince’s complaint stated that, by using the symbol in their
Web zine, the Uptown guys were infringing his trademark and
copyright. Before or since, I’ve never seen such a ridiculous,
abusive claim in a lawsuit. Prince was using intellectual-property
laws to stop people from talking about him. And never
mind that his “people” had previously supplied the Uptown
guys with a computer disk containing the symbol, and advised
them to use it when referring to the name-challenged little
We were able to get rid of the case by convincing the court
to order Prince to show up for a videotaped deposition. (Bill
Clinton had just also had a videotaped deposition—the infamous
“sexual relations with that woman” deposition—so it was kind
of hard for Prince to argue that he shouldn’t be videotaped
as well.) Prince dropped the lawsuit shortly thereafter.
Fast-forward to today, and Prince is still misusing intellectual-property
laws to try to control his image. Last year he threatened
to sue eBay and YouTube for “allowing” the transmission and
sale of what he felt was infringing material, and ramped up
hassling fan sites for posting “unauthorized” photographs.
The Electronic Freedom Foundation has sued Prince’s music
company for demanding that YouTube remove a 29-second home
video of a 13-month-old boy dancing around his house while
Prince’s “Let’s Go Crazy” plays in the background. Imagine
the harm that video must have done to Prince’s bottom line!
Then last week things got even more bizarre. A month or so
ago, Prince played the Coachella festival, a big alternative-music
festival held every year in the desert outside Los Angeles.
Perhaps as an acknowledgement that he was a bit out of place
on the Coachella stage, or maybe an admission of a personal
trait, he played a version of Radiohead’s “Creep” towards
the end of a set that was universally hailed as brilliant.
As would be expected these days, various camcorder/cellphone
videos of the performance of “Creep” popped up on YouTube
and elsewhere. True to form, Prince demanded that these videos
be removed as they infringed Prince’s copyrights.
Except he doesn’t have any copyrights in these videos. Radiohead
owns the copyrights to the song. Whoever held the camera or
cellphone and posted the videos online owns the copyrights
to the video footage. Thom Yorke of Radiohead, upon hearing
that Prince had blocked the videos, responded, “Well, tell
him to unblock it. It’s our . . . song.” D’oh!
So, the videos are back up on YouTube, and they’ve spread
all over the Web, and are now notorious because Prince decided
to be such a . . . creep.
There was a significant ruling in a Seattle court last week.
For years, software companies have taken the position that
when you buy their software, what you really are doing is
buying a license to use the software, and not a copy
of the software itself. This is an important distinction,
and one of the foundations of the software industry. This
is why, for instance, if you want to put Microsoft Word
on your computer, you’re supposed to go buy a new copy,
rather than borrow a disc with the program from a friend.
(The music industry has been floating the idea that the same
considerations should apply to digital music files, although
nobody’s buying it.)
And if it is a license, the “first sale doctrine” of copyright
law wouldn’t apply. The doctrine says that once you buy a
copy of a copyrighted work, you can do whatever you want with
the copy—sell it, lend it, give it away. Think about it. You
buy a book at Borders. Are there any restrictions governing
what you can do with your book? Of course not.
A guy was selling a copy of AutoCad that he’d bought at a
garage sale on eBay, and Autodesk (the copyright holder of
AutoCad) demanded that eBay block the auction. With help from
the advocacy group Public Citizen, the guy convinced the court
that the private resale of software was protected by the first
sale doctrine, and not some violation of the ephemeral “license”
the software company tried to impose on the software.
This decision may have profound effects on the software industry,
by taking away the end-run the industry has been using to
avoid the common-sense dictates of copyright law for years.
And it’ll change things for the better.
Rapp is an intellectual-property lawyer with offices in Albany
and Housatonic, Mass. He teaches art-and-entertainment law
at Albany Law School, and regularly appears as part of the
Copyright Forum on WAMC’s Vox Pop. Contact info can
be found at www.paul rapp.com. Comments about this article
can be posted at rapponthis .blogspot.com.