Monday, February 16, 2009

UNICOR Slave Laborers May Not Sue U.S. Government for Copyright Infringement

As of 2006, UNICOR Federal Prison Industries Inc. employed over 21,000 inmates and had net sales of $717 million. Source: Wikipedia. Information about UNICOR, founded in 1934 is available on the Bureau of Prisons website here. UNICOR has been criticized for having prisoners engaged in slave labor performing toxic e-recycling jobs here and here.

In Walton v. U.S., 551 F.3d 1367 (Fed. Cir. Jan. 28, 2009), the Court of Appeals for the Federal Circuit decided that the U.S. had not waived sovereign immunity over claims of copyright infringement from persons engaging in labor for UNICOR.

Robert James Walton made an American Eagle calendar for the General Services Administration while in prison. UNICOR, apparently in violation of a statute forbidding it to sell to private purchasers (according to BOP site here), sold the calendar to private purchasers.

The United States has waived sovereign immunity as follows (italicized language from the opinion):

Section 1498(b) of Title 28 of the U.S.Code provides that the “exclusive action” for infringement by the United States or its specified affiliates (including a government corporation) of “the copyright in any work protected under the copyright laws of the United States” shall be a suit in the Court of Federal Claims “for the recovery of his reasonable and entire compensation as damages for such infringement.” This jurisdictional grant is immediately followed by this language:

Provided, however, That this subsection shall not confer a right of action on any copyright owner ... with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used[.]28 U.S.C. § 1498(b).
In other words, a copyright infringement suit cannot be maintained against the United States, if the copyrighted work was prepared (1) while in the “employment or service” of the United States and (2)(a) as part of the official functions of the employee or (b) in whose preparation government “time, material[s], or facilities” were used.Walton v. U.S. 551 F.3d 1367, 1369 (C.A.Fed.,2009)

Walton relied on case law saying that prisoners were not "employees" of the federal government. According to the decision, prisoners receive "compensation ranging from $.023 to $1.15 per hour and various other benefits."

The Federal Circuit concluded that Walton's work was done "in the service of the United States" and found the U.S. had not waived sovereign immunity.

The decision appealed from (31 pages on Westlaw) has very good language for a plaintiff who doesn't have a copyright registration certificate and who later cures this by procuring one and either amending or supplementing the complaint. Walton v. US., 80 Fed. Cl. 251 (January 23, 2008).

I don't know how the appeal was briefed, argued and decided five days later. Appellant was represented by Covington & Burling.

Wednesday, February 11, 2009

Berlin Court Returns Poster Collection to Jewish Heir

A Berlin administrative court has ruled in favor of Peter Sachs, an heir of a victim of Nazi art looting. Article here.
The decision requires the German History Museum to return thousands of posters, including one of Simplicissimus's Red Bulldog.
According to the Kulturkampf blog:
Simplicissimus was a German magazine that began in 1896 and ran until 1967. It was characterized by a sharp, satirical style that was enhanced by its stylish imagery. The paper's mascot, the red bulldog by Thomas Theodore Heine, is an almost iconic image, and its original is at MoMA in New York.
It is good to see the anti-fascist bulldog's return to its Jewish owner after so many years.
Austrian Jewish comedian Fritz Grunbaum founded an antifascist political cabaret called Simplicissimus in Vienna. When Hitler invaded Austria on March 12, 1938, Grunbaum was arrested by the Gestapo and put in the first transport to Auschwitz. Today the Vienna cabaret is known as Kabarett Simpl.
Simple justice can take a long, long time.

Tuesday, February 10, 2009

Shepard Fairey: Obama's Graffiti Artist Arrested

Shepard Fairey was arrested walking into an art exhibition on February 7, story here. Good discussion of the declaratory judgment action Fairey filed against the Associated Press to declare his Obama poster non-infringing and fair use on Donn Zaretsky's Art Law Blog here. Complaint filed by San Francisco lawyers in the Southern District of New York on February 8 here. NY Times coverage here. Apparently the freelance photographer who took the photo for AP claims the copyright and is thrilled that Fairey used the work the way he did.
The complaint does not allege that Mr. Fairey has claimed or registered copyright in his poster. The complaint also alleges that it was filed in response to threats by AP that it would file suit against Fairey on February 10.
The complaint also fails to mention Fairey's strongest potential defense: the poster is core political speech made during the course of a political campaign protected by the First Amendment. There is a lot of good case law about political speech, and the fact that the image was used and sold to promote a political viewpoint during a political campaign gives it a great level of deference. According to the complaint, Fairey sold 4,000 posters for $45 and used all of the proceeds to distribute nearly 300,000 posters for free. The U.S. Supreme Court has a pretty good record of upholding free speech in the political arena, and Fairey did pick a winning candidate.
If a plaintiff has not requested registration of a copyright and either received a registration or been refused by the Register of Copyrights, a federal court lacks subject matter jurisdiction over the subject matter of the photograph or the poster.

Monday, February 09, 2009

Remix: Lessig on the Past, Present and Future of Copyright

Cyberprophet Lawrence Lessig has hit hard in his latest book on what's wrong with copyright. In the past, the world has really not been willing to listen. In Free Culture (2004), he recounted his failure to persuade the U.S. Supreme Court of the toxic effects of extending the duration of copyright protections. For any lawyer whose ambitions include arguing before the U.S. Supreme Court, it is a serious and important account of how to craft compelling arguments. In that work, Lessig blamed his failure to persuade the Nine on his own hubris - his insistence that he was correct on the law and that he did not have to show by factual arguments that the extension truly caused harm.
In Remix, Lessig shows the federal judiciary that he's done his penance. Morality, children, founding fathers, and Posnerian economic analysis are brought out in an attempt to bring the Chicago School around. He calls for deregulation, he praises Jack Valenti's morality, he waives the flag, he kisses babies, he argues externalities. But in characterizing the "copyright war" as being a failure and comparing it with the war on drugs or the war in Iraq, he has not shied away from arguments sure to alienate those same folks.
Well done! In the end, the world is starting to understand what all of those nerds were trying to tell us years ago about criminalizing the behavior of an entire generation. Lessig takes on the tremendous task of describing our new digital economy in economic terms. Before we were all RO (Read Only) now we all RW (Read and Write) with our digital content. Lessig teaches us about how this new RW culture will develop and gives concrete examples, as well as showing that RO culture will continue to thrive. As digitization hits the average consumer and the grandchildren of the federal judiciary are mixing and sampling away, Lessig's voice in the wilderness will come to be perceived as wisdom before its time.
And yes, he makes the point that he thinks copyright owners will make more money doing things his way. And yes, lest we forget, he stated nine times in his last work that he did not want to abolish copyright and he is saying it AGAIN!
Remix's care to put some spoonfuls of sugar with the medicine, its tone of greater personal humility, and its powerful arguments ensure that this work will be influential. I suspect that Judge Posner got a courtesy copy. I don't think that the suggestions about opt-in copyright registration make much sense in light of the Berne Convention and the reality that no one will remember to register years after creation, but maybe his next book will persuade.