Am I a Criminal?

Naturally I keep up on the latest grim developments in copyright law. The new Enforcement of Intellectual Property Rights Act, which unsurprisingly “is strongly backed by the music and movie industries,” would “(allow) for the Department of Justice to bring civil suits against IP infringers.

IP infingers…hey, that’s me! According to the Wired article,

The (Justice) department does (already) prosecute criminal acts of infringement, although rarely. (link)

Is my infringement already criminal? According to this brief history of Criminal Copyright Infrignement by University of North Carolina Law Professor Laura N. Gasaway:

The most recent amendment to criminal copyright infringement was the No Electronic Theft Act of 1997 (NetAct) which made it a felony to reproduce or distribute copies of copyrighted works electronically regardless of whether the defendant had a profit motive. Thus, it changed the 100-year standard regarding profit motive but retained the element of willfulness…. the infringement must be either: (1) for purposes of commercial advantage or private financial gain or (2) involve the reproduction or distribution of one or more copies of a work or works within a 180-day period with a total retail value of $1,000….a noncommercial willful infringer is subject to up to a one-year prison term and $100,000 in fines…..(link)

Sita Sings the Blues, containing 11 unlicenesed songs (synch rights of underlying compositions only, as the Hanshaw recordings are public domain) has been playing film festivals since February. But are 35mm film prints and exhibition tapes “electronic reproduction”? Probably not, but surely the many DVD festival screeners are. I’ve home-burned and sent out dozens of those already. You have to, to be in festivals.

Copyright infringers may be sued both civilly and prosecuted criminally for the same infringing act. In cases where the alleged infringer has few assets that a copyright owner might recover in a civil suit, the owner may seek to have the government prosecute the infringer as a criminal….(link)

I have few assets: I’m broke, in debt, and homeless. If Warner-Chappell, Sony, UMPG et al go after me, it could be through the US government.

There are four essential elements required to prove felony copyright infringement: (1) that a registered copyright exists,

It does, thanks to retroactively extending copyright terms. The compositions were supposed to enter the Public Domain in the mid-1980′s.

(2) that the defendant infringed by reproduction or distribution of the copyrighted work,

The only wiggle room I have is on (2): my use of the 11 songs may be Fair Use. If they are deemed Fair Use, I am not infringing on copyright. If not, into the slammer with me.

(3) that the defendant acted willfully

Yep, I wasn’t totally ignorant of copyright troubles when I started this.

and (4) that the works infringed were at least 10 copies of one or more copyrighted works with a total value of $2,500 within a 180-day period.(link)

Let’s see, I have 5 prints, 6 exhibition tapes, and dozens of DVDs circulating among festivals and journalists: that’s well over 10 copies. Corporations can value the 11 compositions in Sita at anything they want, which is why they’re demanding $220,000; surely they’ll value them at over $2,500. And it’s been over 180 days.

The corporations do offer “Festival License” contracts. In my case (the generous “low end” of their arbitrary scale) these require I pay $500 a song for “non-profit, non-commercial purposes” limited to film festivals. So far I’ve only received one contract (5 different corporations are involved) but I actually read it for the first time yesterday. You’d think that since the contract expressly forbids me to make any profit from festivals, they wouldn’t charge $500 a pop for that privilege, but it gets worse: the contract has lots of other little details like I agree to forfeit my right to make a soundtrack. The Warner-Chappell festival contract is unsignable; I assume the others are too, since their terms are exactly the same.

Folks, I may be a felon. The Entertainment Industry need only snap its fingers, and the Feds can come get me.

I’ll leave you with a thought copied – I hope not illegally – from Martin Niemöller:

First they came for the hackers;
I did not speak out,
because I was not a hacker.

Then they sued the file-sharers;
I did not speak out,
because I did not share files.

Then they came for the film makers;
I did not speak out,
for I was not a film maker.

When they came for me,
there was no one left to speak.


10 comments to Am I a Criminal?

  • This is dire news, indeed, since what I have seen of Sita, in its truncated, internet versions is dazzling. The possessors of the copyright to those songs, if they are anything other than glassed, classless conglomerates, have done naught with them for generations; but, like the oil drilling scam, they want to hold onto their bribed access “rights” to the exclusion of all others.
    This is a wake up call to any artist, or aspirant thereto.
    Now I’m going to reassess my Mikado project…maybe Disney bought the carcasses of Gilbert and Sullivan and is making genetic hay with their DNA.

  • JEEEZE, I am so sorry you are going through this!!! That is the cost of success – everyone wants a “Piece of You”. I will keep my fingers crossed and hope for the best, but until then, chin up! You did an AMAZING job (I just saw “Sita” for the first time at the OIAF – by the way, congrats on the “Honorable Mention!”

  • Nina, I met you some years ago when you started working on this project. I was amazed that you were also an Annette Hanshaw fan (a rather obscure artist), and I have been anticipating seeing your film now for a long time. I’ve been discussing this copyright issue with other Youtubers for some time, because you know that Youtube is rife with performers who sing popular copyrighted songs. It’s piracy when they upload the original artists’ videos, but a non-commercial amateur performance video “may” be protected if one secures a special ASCAP license. A Youtube friend of mine got nailed twice, however, but only had to take down the video; she wasn’t sued. You might be allowed to exhibit “Sita” on Youtube under these TOS. ‘Course you won’t make a dime at it, but it could be promotional for your career. My Youtube site is dedicated to promoting “forgotten” popular music from the 1920s and 1930s, and I secure permission from the modern professionals whose videos I present. Take care, have a great time in Athens, and write me sometime – I have a couple of people with short projects who need an animator.

  • Let me know and I will help you clear some of these rights.

  • Ziv

    I viewed your trailer. Love your work.

    I’m a little surprised, that you are surprised, that you would have to pay substantial licensing fees for composition rights.

    On the bright side, I’m delighted with your free for all, warm and fuzzy, creative freeware model. I look forward to using your Sita characters for lunch boxes, action figures, cell prints, bed sheets, etc. I can offer you little or nothing and I have the potential to make a few million from your creative efforts. This is going to be great. Thanks!

  • Thanks Ziv! Can’t wait to see the action figures and bed sheets. Those aren’t just my creative efforts – they’ll require a lot of additional effort and money to be produced, and I’m thrilled you’re willing to do that.

    We’ll be maintaining a web site listing all the ancillary products that share a portion of their profits with me. Sharing is a selling point – fans of the film will be directed to products that direct money back to me. But if you’d rather invest your money in other advertising and share no profits with me, that’s up to you.

    Do note that you won’t be able to copyright or patent these derivative works. So if someone sells knock-offs of your “Sita” action figures, you can’t stop them. Sita’s distribution plan is based on the free software model, and lawsuits have been brought (and won) against those who tried to “own” free culture.
    http://www.softwarefreedom.org/news/2008/dec/11/cisco-lawsuit/
    http://www.softwarefreedom.org/resources/2008/foss-primer.html#x1-130002.5

    If you can live with that, please start making those sheets and action figures right now! Especially the sheets. I’d pay for a set of “Sita” sheets, if they’re reasonably priced.

  • [...] Paley:  Am I a Criminal? ”Naturally I keep up on the latest grim developments in copyright law. The new Enforcement of [...]

  • [...] and culture at large. A CC-SA license does not absolve a creator of compliance with copyright law. The law could have sent me to prison for non-commercial copyright infringement. I was forced to borrow $70,000 to decriminalize my film, regardless of how I chose to release [...]

  • [...] and culture at large. A CC-SA license does not absolve a creator of compliance with copyright law. The law could have sent me to prison for non-commercial copyright infringement. I was forced to borrow $70,000 to decriminalize my film, regardless of how I chose to release [...]

  • Amateur Physicist

    “Copyright is a man-made artefact which has no equivalent in the laws of physics. Copyright is theft, theft of human ideas, enforced by the fascist thought-police, (which we are taxed to pay for). You must not think that thought, in case someone else has already thought it. All human ideas, once published, should be free, are free according to the laws of physics. If you wish to retain “ownership” of “your” idea; keep your mouth shut. Someone else will have, or has had “your” idea, for there is nothing new in the universe, but if you’re hoping your lawyers are fast enough to give you a legalized market-rigging advantage, then don’t forget to exploit that other great legal wheeze, limited liability, to avoid personal accountability, (another anti-meritocratic law).
    Copyright enables monopolies. Abolish copyright and you can abolish patents, and allow a true, fair and just free-market meritocracy to thrive, where whoever provides the best value to society, utilizing any ideas; gains their fair proportion of the market. In a free-market meritocracy it is every citizens’ duty to always seek out the best value for their wants and needs.”

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