The Artful Jurist

This weekend I’ll be attending a playwrights’ conference that focuses on self producing one’s own plays. I’m also one of the contributors, my contribution consisting of a hand-out with some general notes on legal issues that confront the playwright who also serves as his own producer. I hope my notes will be useful to those who get them. Although, from a practical standpoint, there’s absolutely no way every conceivable legal issue could be covered in a small hand-out. Nor would a massive treatise be something a group of artists would embrace as particularly useful to them. But a few tips certainly can’t hurt.

One tip that didn’t make the hand-out, but which is a much misunderstood legal issue, is the mythical race to the Registrar of Copyrights. People seem to be under the impression that the first person to register a work with the Copyright Office then owns and controls all rights to that work. Not necessarily so.

In this respect people confuse copyrights with patents. Patents are indeed a race to the registrar. The first person to file for a patent is entitled to it, despite anyone else having come up with the idea first.

Copyright, on the other hand, is not a race to the registrar. Under present American law, a person automatically owns the copyright on a creative work the moment it is put into some tangible medium (like paper, film, video, sound recording, digital file, etc.). So, if you write a book, and someone steals a copy and registers it for a copyright before you do, that dastardly villain does not usurp your copyright. So long as it’s an original work of yours, you own the copyright and you can register it at any time—even if that comes after someone else has tried to claim it for his own.

Naturally, if there’s a dispute over who was the original creator of a work, that’s where it helps to have evidence that demonstrates when you created it. But don’t expect the Copyright Office to step in and make those determinations. That’s typically a matter for the courts.

What do you do if you’re one of the world’s most renowned photographers and you need a lot of cash fast? Well, you could try taking a new, breathtaking photo that all the world will clamor to see and bid the selling price through the roof. But, of course, that’s not nearly as easy as it sounds…even for famed photog Annie Leibovitz.

So what did Ms. Leibovitz do? She borrowed millions from a company called Art Capital Group and put up for the collateral, among other things, the rights to all of her photos. As the New York Times put it, she “essentially pawned every snap of the shutter she made or will make until the loans are paid off.” According to reports, she needed the money for such things as mortgage payments (and who hasn’t heard stories like that these days?) and legal fees.

It should serve as an example to others that creative people have more than just whole works of art to sell. There are also rights—such as copyrights and contracted rights—that are attached to those works and that are individually marketable. In this case, Ms. Leibovitz didn’t offer the final products of her art. She offered the rights that can be used to make money off them. Assuming she pays off the loans, she’ll get all the rights back.

Avast, ye lubbers, and batten down the hatches for a swashbuckling battle over copyright infringement on the Internet. A Swedish file-sharing web site, called the Pirate Bay, is on trial in Stockholm on charges that it’s helping people illegally download videos, music, and literature.

Big name entertainment companies such as Warner Bros., 20th Century Fox, MGM, and Columbia Pictures are among those prosecuting four people in connection with the Pirate Bay allegations.

Sony is also among the plaintiffs. What’s interesting about that is that, years ago, Sony was the defendant in a case where entertainment giants accused it of aiding and abetting copyright infringement through the sale of the Sony Betamax VCR. The winning defense back then was that the Betamax had other non-infringing uses and was not designed specifically to aid people in breaking the law.

Well, the Pirate Bay operators are making a similar claim now. The web site doesn’t actually house any of the copyright protected material. But, rather, it offers the technical opportunity for site users to swap such things amongst each other.

Of course, the “We don’t make people break the law” argument didn’t help Napster.

Just in case we needed to be reminded that even big celebrities claim they get taken advantage of by the production companies they sign with, in the news now is a story that actor Don Johnson is suing three entertainment companies that he says haven’t paid up Johnson’s share of profits from his TV series Nash Bridges. The lawsuit was filed this week in Los Angeles Superior Court and seeks millions that Johnson claims he’s owed from his share of a $150 million syndication deal.

The show ran six seasons, from 1996 to 2001, and starred Johnson as a San Francisco police detective who, as I recall, for some reason used to call everyone “Bubba.”

The economic stimulus package that President Obama signed into law will include $50 million for the National Endowment for the Arts. If my math is correct—okay, if my calculator’s math is correct—that’s about .00006 percent of the total $800 billion the package is supposed to pump into the economy. In other words, by stimulus standards, it’s the proverbial drop in the bucket. But the arts almost didn’t get even that drop.

Initially, the money had been earmarked in the House version of the bill. But then the Senate excluded it from its own version. Additionally, Senator Tom Coburn (R-Oklahoma) got an amendment passed that nixed any stimulus money for museums, theaters, or arts centers, which the Senator put into the same class as golf courses and casinos.

But it turned out to be a lucky Friday the 13th for the NEA when Congress put the arts appropriation back into the final bill that was passed. In a plea from the House floor, Representative David R. Obey (D-Wisconsin) argued that the arts employ five million people in this country—of which 12-and-a-half percent are currently unemployed.

Like a soap opera that keeps revisiting the same scene over and over with little to no plot development, the digital TV switch seems to be stuck in a place where the same issue just keeps getting rehashed.

The latest change to the rules extended the deadline for the mandatory transition from February 17 to June 12. But, while television stations were no longer required to make the switch this month, they weren't prohibited from making it, either. But, when about 500 stations announced they were going ahead with the February 17th switch to total digital broadcasting, the Federal Communications Commission said "Whoa!"

At least, the FCC has put the brakes on 123 stations that had planned to go totally digital this month. The reason—the FCC is worried that in some markets where all the stations suddenly go digital there will be some people who will then lose all television reception. And that, in the FCC's opinion, poses a public safety threat because those people would lose access to public safety information and alerts.

Meanwhile, some stations are crying foul because broadcasting both analog and digital signals costs more than the cost of broadcasting just one signal.

Stay tuned…

Here it is, the 200th anniversary of the birth of Abraham Lincoln, and the popular media are all abuzz with Lincoln-themed stories and dramatizations. It's to be expected. Here in America, it would be difficult to find a more frequently depicted political personage than our 16th president. In fact, my mother recently gave me a book devoted entirely to the many, many portrayals of Lincoln on stage, screen, and television.

I, myself, have written a Lincoln-themed play—although the character of Abe never enters the stage. No, rather, my play takes another oft-dramatized route. It deals with the Lincoln assassination and follows the story of the trial and execution of one of the people accused of being part of the assassination conspiracy. Specifically, it focuses on Mary Surratt, who holds the dubious distinction of being the first woman judicially executed by the United States government. Mary Surratt owned the boardinghouse where John Wilkes Booth and others (including Mrs. Surratt's own son) were alleged to have conspired. She, along with three other defendants, was hanged on July 7, 1865—only one day after the verdict was handed down. Justice was swift in those days.

Despite the title of the play—The Judicial Murder of Mrs. Surratt—the drama attempts to tell the story without a bias regarding the title character's guilt or innocence. This was deliberate on my part because, more than 140 years later, the justice or injustice of her sentence is still debated. Some say she got what she deserved. Others say she was railroaded by a government out to revenge its first presidential assassination. Those latter people are the ones who sometimes call her execution "judicial murder."

As the author of the play, I'm often asked whether I believe she was truly guilty or innocent. After researching the subject for two years and spending at least another year writing and revising the play I wrote about her, I can honestly say I don't know. Some of the evidence looks quite incriminating. But other evidence calls into question serious doubt about whether Mrs. Surratt was truly aware of specifically what Booth and the others were planning. One has to assume that information about plotted presidential assassinations is shared on a "need to know" basis only. It could easily be argued that, unlike others who were tried for the crime, Mrs. Surratt was not an essential component of the plot.

For those who would like a more lawyerly answer, including those of you writing your own courtroom dramas, let me offer this…

Mary Surratt had her days in court. Some of the evidence pointed toward her guilt while other evidence suggested innocence. None of the evidence was absolutely incontrovertible. Therefore, it was up to the tribunal hearing the case to weigh the evidence and make a decision. In America, the standard by which a person may be found guilty of a crime is that the evidence must prove guilt beyond a reasonable doubt. A reasonable uncertainty is all it takes for a person to be found not guilty. If you ask me whether the evidence against Mrs. Surratt could have provoked that element of uncertainty in the minds of those trying the case, my feeling is that it is possible that it might have. That is, a reasonable person hearing the evidence might come to the conclusion that there's a reasonable doubt about what she was accused of doing. Had another panel of jurists heard the case, I believe it's possible the verdict might have been not guilty.

However, note that I'm saying a reasonable person might draw that conclusion. In many cases, two reasonable people could weigh the evidence and come to two completely opposite conclusions regarding reasonable doubt. In Mrs. Surratt's case, there was evidence on both sides, and it was up to the jurists to decide how much weight to give to any particular piece of evidence. So, if we were to review the decision as an appeals court might to determine whether the decision was not a reasonable one, we have to review it by a completely different standard. That standard is called "clearly erroneous." A clearly erroneous decision is one that is not founded in reason and must be overturned to prevent a miscarriage of justice. That's a much tougher standard to conquer. And, in Mrs. Surratt's case, I'm not sure a convincing argument could be made that there was no possible way for the tribunal to arrive at the decision it did. Therefore, I believe, attempting to overturn the decision on a clearly erroneous standard would likely fail, and the verdict would remain as it was—guilty.

There's more information about Mary Surratt at the Surratt Society's web site. You can also read a short courtroom excerpt of my play online.

Well, you've probably heard the news...perhaps on your analog TV. Congress reversed an earlier position and voted to delay the mandatory changeover to digital television. And today President Obama signed it into law. The new mandatory transition date has been pushed from February 17 to June 12.

Why the delay? Well, I'm sure it had absolutely nothing to do with my earlier blog post in which I whimsically quipped whether anyone could smell a lawsuit coming. No, rather, the rationale is that, by estimates, at least six million Americans just aren't ready yet. That is, they've got analog TVs with no converter box, and the Commerce Department ran out of discount coupons for the boxes. Result: TV can remain analog a little bit longer.

As I understand the new law, TV stations can still make the switch to broadcasting only a digital signal as of February 17. But they aren't required to do it until June 12.

It wasn't terribly long ago that I posted to this blog some musings about the copyright issues that could potentially get an artist into hot water if he does a painted version of someone else's photograph. Well, in current events the issue has gone from the hypothetical to the real.

Shepard Fairey, the artist who painted the now well-known poster of President Obama looking upward with the word "HOPE" printed across the bottom, has the Associated Press on his case. Fairey admits the poster was based on an A.P. photo taken by Mannie Garcia. Fairey claims his appropriation of the image falls under the fair use doctrine that provides a safe harbor from claims of copyright infringement. The A.P.'s not buying that argument, and it wants credit and compensation. Reports are that attorneys for the two sides are having discussions.

Meanwhile—and this one's straight from the "This Just Isn't Your Week, Shep" file—Fairey was arrested in Boston Friday on a charge of painting unauthorized graffiti on various structures. To Fairey, it's street art. To the police, it's tagging.

Well, apparently this is nothing new to the artist. According to the Boston Globe, Fairey says he has been arrested 14 times.

From the country that brought you the Taliban and its proclamation that statuary offends God and needs to be destroyed, now there's a furor over, of all things, a published book of the Quran.

One might think an Islamic nation would have been pleased when one of its citizens published a translation of the Quran from Arabic to an Afghani language, the purpose of which was to make it accessible to those living there who don't speak Arabic. But no. The Associated Press reports that hard-line clerics are crying foul because the book doesn't include the original Arabic verses along with the translation. What's wrong with that? Well, many believe the Quran represents the actual spoken words of God, and a mistranslation could, as the A.P. put it, "warp God's word."

So what's the penalty for warping God's word? Well, if Afghanistan's Islamic Council has its way, the penalty will be death. According to the story, there are at least two people who are currently on trial and could face the death penalty.

Has anyone else been wondering about the sofa-sized sculpture of a shoe, a work of art that was created in Iraq to commemorate the shoe-throwing journalist who chucked his footware at President Bush? I don't mean I'm wondering about the subject matter of the art. Public art can—and often does—take on controversial topics.

No, my question has to do with the sudden removal of the shoe sculpture. It had been up maybe only a day before local authorities ordered it removed from its site in front of an orphanage in Tikrit, Sadam Hussein's hometown. And down it came.

Now I know they do things differently in other nations—especially since other nations don't have the First Amendment to lean on. But is there anything in the laws of the new, democratized Iraq that protects free speech whether printed, verbal or visual? If there is, I'm just waiting for the lawsuit to be filed on this one.

In the wake of Joe Torre's new tell-all book about his years as manager of the Yankees, now the word is that the Yankees are considering putting a "non-disparagement" clause in future contracts for its players and coaches.

You might think a baseball team like the Yankees would be a pretty thick-skinned bunch—that is, considering how much animosity there already tends to be toward the team everyone loves to hate. But, apparently, Torre's book has pushed a few buttons that make even George Steinbrenner's blood pressure rise. So the answer the organization is said to be considering is a contract clause that would forbid the writing of any trash talk books.