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Sign o’ the Times

Ten 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 purple one.

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.

 

Paul 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.

—Paul Rapp


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