By Dr. Ken Broda Bahm:
The music world has lost some of its royalty lately. On the heels of David Bowie and George Martin, last week’s loss of Prince is another blow. The artist was known for his genre-defying sound, for his prolific songwriting for himself and other artists, for his sheer musicianship with a guitar, and for pushing a lot of social boundaries. But in legal circles, he was also known for something else: for doggedly enforcing his intellectual property (IP) at a time when public support for those protections has been waning. As described in a recent Wall Street Journal article, he enforced copyright against a 29-second home movie of a baby dancing to the Prince song, “Let’s Go Crazy,” sued a Chicago bike messenger who created a guitar using the symbol that Prince temporarily adopted as his name, hit “Twitter” with a takedown notice over users sharing six-second “Vine” clips of his music, and sued 22 of his fans for $1 million each for downloading a bootleg concert video. So in the musical world, he was not just the “Prince of Purple,” but the “Prince of IP” as well.
Along the way, Prince won some victories, including the suit against the guitar-designing bike messenger. But he also experienced a backlash. A generation now raised on the ability to find free music on the internet didn’t like the idea of a wealthy artist clamping down on the freedom of his fans. At one point, several of the artist’s own fan websites joined together into an organization called “Prince Fans United” in order to protest what it considered to be the artists’ overbroad copyright enforcement on his music and image. The Electronic Frontier Foundation called the artist out with a “Raspberry Beret Lifetime Aggrievement Award” The response has been similar to that experienced by other artists, like Metallica, who played a role in trying to shut down Napster and other free music sharing in the early 2000’s. The pattern that emerges is that we love the artists, but hate it when these artists try to protect their art. That dynamic is representative of our love/hate relationship regarding intellectual property in general. On the one hand, we welcome innovation and those who are able to bring new art, new ideas, and new products to us. But on the other hand, it feels controlling and restrictive for the innovator – often a rich and powerful party — to control others’ use of the innovation. We like the artistry, but the control feels unfair. In this post, I’ll take a look at current attitudes toward IP and share some thoughts on how to adapt to these attitudes.
A Large Portion of Your Jury Will Oppose the Idea of Intellectual Property
Surveys on public behavior indicate that nearly half of Americans casually pirate digital content in the form of images, videos, and music. Some might counter that much of this theft isn’t recognized as such due to ignorance or wishful thinking about the law. But when asked, a bare majority of 52 percent agree that there should be penalties for illegal file sharing. In the patent arena, we have tracked the attitudes that the jury-eligible population brings into court. In mock trials and surveys, for example, we have noted that some will hold with the traditional justification for intellectual property protections, believing that they protect fair competition. But a substantial portion — a third or more — believe that those protections weaken competition by allowing the IP owner to threaten or to block competitors.
That data might come as a surprise. After all, we have noted over time that the U.S. Patent and Trademark Office tends to be among the government agencies with the highest levels of support. Some of our IP clients have been surprised that such a large number do not feel that it is necessary or fair to grant an inventor the right to protect that invention. That reflects a disconnect in thinking: We love the protections that encourage an artist like Prince to create “Purple Rain…,” then we love it so much that we feel entitled to download the song, the album, or the movie for free.
But That Doesn’t Make Them a Lost Cause for IP Plaintiffs
IP cases will sometimes go all the way to trial, and when they do, you can’t exactly strike the third or more of the panel who are uncomfortable with the idea of enforcing intellectual property. Thankfully, we have found that individuals who are suspicious of patents and copyrights are still persuasible. Here are a couple of ideas for how to accomplish that.
Address the Power
The central reason for discomfort with IP enforcement isn’t necessarily a disrespect for the law. More often, it seems to stem more from a worry over an abuse of control: Jurors fear that one-time innovators will abuse their positions and stifle future innovation. One solution is to equalize the power, reminding jurors for example that infringers are often large and powerful parties as well, either individually or in the aggregate. When the power balance does favor your side, it helps to point that power in a good direction: Yes, the ability to protect our innovation does protect us and our profits. At the same time, that power also protects the small-time innovator when faced with larger companies who want to steal that innovator’s work. In this case, power is on the side of innovation whether the innovator is big or small.
Go Beyond the Law
It may be legal to defend your intellectual property, but is it also right? Is it helpful? Pointing the power in the right direction also helps to answer that question. As Prince’s lawyer told the online site TMZ at the time of the suits involving the downloaded bootleg concert video, “We recognize the fans craving for as much material as possible, but we’d prefer they get it from us directly than from third parties who are scalpers rather than real fans of our work.” One reality is that many artists don’t want the bootlegs out there, not just due to the lost profits, but also due to the fact that they don’t want to be associated with a poor-quality recording. It is also a good reminder to speak not only to the law, but to basic fairness as well.
Postscript: Picking a Picture for This Post
Given the subject matter and the fact that Prince’s estate is likely to be just as aggressive on IP as the artist was in life, I faced a practical problem in finding a photograph to use for this article. In the aftermath of Prince’s death, of course the internet is awash in images with some of them being licensed and a great number of others likely being simply grabbed from the internet and used without permission. I didn’t want to do that — and in fact never do that for this blog: My policy is that all images are used legally. In this case, however, it turns out that legal pictures of Prince are hard to come by, perhaps owing to the artist’s reputation. Luckily, I found a photographer who had visited Madame Tussaud’s wax museum, snapped a picture of Prince’s wax figure (which Madame Tussaud allows) and then shared the photo with a “Creative Commons License” to Flickr. So thanks to the photographer known as “InSapphoWeTrust,” for helping me stay on the right side of the law and in the good graces of the Prince estate.
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Other Posts on Public Attitudes in Intellectual Property Litigation:
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Photo Credit: InSapphoWeTrust, Prince at Madame Tussaud’s Wax Museum, New York City, Flickr Creative Commons (edited)
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