Educating Rico: Breaking the law

Kai Ryssdal Jan 26, 2007

KAI RYSSDAL: Our very own Rico Gagliano regales us every month with tales from his ongoing journey through the world of personal finance. We call it educating Rico. And this time around he learns how to protect his property in the mean streets of Hollywood, intellectual property that is.

RICO GAGLIANO:
Hi, I’m Rico and I am hilarious.

With a little help from my friends, anyway. See, I’m in a sci-fi theme sketch comedy troupe on the side. We’re called the Ministry of Unknown Science. Here’s an online video of ours. We play mad scientists who want to cause global warming. So we send an army of clones to heat up the sun.

ACTOR FROM MINISTRY OF UNKNOWN SCIENCE:
Attention clone army, when you find the control center for the sun, you will turn up the thermostat two degrees. Any hotter and the sun could burst into flames.

Silly, right? But since videos like this can rack up a million hits on web sites like YouTube, it’s also potentially big business. So it’s a great time to be producing it and also a great time for folks to rip off our ideas. And now that may sound paranoid, but consider this–a wonderful tune from one of my heroes, the late great George Harrison.

GEORGE HARRISON: My sweet lord, my lord.

Well, back in 1971 somebody noticed this tune bore a striking resemblance to another one.

THE CHIFFONS:
He’s so fine, wish he were mine.

A judge ordered Harrison to cough up over half a million in damages. Now, this was George Harrison, the spiritual Beetle, ripping off The Chiffons, at least subconsciously. If you can’t trust George, who can you trust? So it’s time for me to learn a little about copyright law. Here to give me a crash course is Lian Soble. He is a professor at Southwestern Law School in Los Angeles. Hi, Lian.

LIAN SOBLE: Hello.

GAGLIANO:
The first question and perhaps I’m an idiot to ask, but what is the difference between a copyright and say a patent?

SOBLE:
You’re not an idiot at all. That sort of mistake is made in newspaper headlines all the time. Patent law protects inventions. Think of devices. Copyrights, on the other hand, protect literature, music, art–that sort of thing.

GAGLIANO:
What, then, can I not copyright?

SOBLE:
Ideas. So if you simply have an idea or if you’ve written a story and the only thing that somebody copies is the idea but not your more detailed expression, your copyright doesn’t protect that idea.

GAGLIANO:
So if I just say to somebody I got this great idea for a movie, it’s about a cowboy, that’s not good enough.

SOBLE:
Correct. And you could add a lot more details to the cowboy before you had something that’s good enough. Copyright doesn’t protect facts. So this is perceived, perhaps, as a failing by people who are journalists or do nonfiction articles because many people invest years doing tedious research. They package all of those facts in a very readable book and any screenwriter who wants to use those facts is privileged to do so because the copyright doesn’t protect those facts.

GAGLIANO:
I would say if facts were copyrightable, as a journalist I would be rich by now.

SOBLE:
Although it’s also possible that you yourself have used facts that have been unearthed by others.

GAGLIANO:
And then I’d owe them out of my meager public radio salary, wouldn’t that be a hoot. All right, now I’ve done some research and supposedly, as far as the law is concerned, as soon as something I create exists in some physical form, it’s considered copyrighted?

SOBLE:
And as a matter of fact, all that really means is it’s put down on paper, saved to an audio tape or to the hard drive of a computer it’s protected by copyright just as soon as that happens.

GAGLIANO:
Yet you can register for a copyright with the government. Why do I have to register if it’s copyrighted as soon as it exists anyway?

SOBLE:
Because before an American can file a copyright infringement lawsuit, the copyright has to be registered. Registration isn’t required for protection, but registration is step one of filing a lawsuit against those who might infringe.

GAGLIANO:
So I can attack if someone rips me off.

SOBLE:
Yes.

GAGLIANO:
All right. So what is the registration process?

SOBLE:
It’s not really a very big deal. It’s a set of two-page forms and the forms have been designed so that they don’t require a lawyer to fill them out.

GAGLIANO:
Because after all, it’s being aimed at artists who mostly can’t afford ramen noodles. All right, so how–by the way, what does it cost?

SOBLE:
$30 per item.

GAGLIANO:
Well, not so bad.

SOBLE:
No.

GAGLIANO:
Although, you know, that’s a lot of ramen noodles. All right, let’s flip this around. What if I, as an artist, want to use elements of another artist’s stuff in my work. And I’ll give you an example. My comedy troupe in a video used music from another band, but I hear this term thrown around, fair use. And people say if you use like only four bars of someone’s music, that’s okay, that’s fair use.

SOBLE:
Now that four bar story, it is one of these urban myths. People have been found to have infringed the original songwriter’s copyright even though fewer than four bars were copied.

GAGLIANO:
Okay, so how then do I gauge when, or how much of another artist’s material I can use.

SOBLE:
The most important principal is that in order for an unauthorized use to be an infringing use, the second creator has to create something that is substantially similar to the copyright protected work.

GAGLIANO:
A lot like the George Harrison case, okay.

SOBLE:
Also, copyright protection goes only to those parts of a work that were originated by the author. Countless songs have measures within them that exist in preexisting songs because that sequence of notes is a common tool that many songwriters have used for all time.

GAGLIANO:
Are you saying that rock musicians rip each other off? That’s outrageous.

SOBLE:
I am saying some rock musicians have been accused, even by their fans, of ripping themselves off.

GAGLIANO:
In other words, just because part of your art resembles someone else’s doesn’t mean they can sue you for copyright infringement. Or rather they can sue you but you might win. Of course, my troupe used an artist’s actual recording in our video so we’ll have to get their permission if we want to broadcast it. As for our original contents, well we can’t copyright the idea of sending an army of clones to superheat the sun. So copycats of the world, knock yourselves out. But we are copyrighting our video treatment of that subject. So, if you want to meet me in person, here’s a suggestion. Try to rip us off and I’ll see you in court.

From Los Angeles, land of stardust and lawsuits, I’m Rico Gagliano for Marketplace Money.

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