Wednesday, March 9, 2011

Lady Gaga's Surprisingly Sophisticated Understanding of Copyright Law (Insert Your Own Gaga-Related Pun)


Those of you that know me (and those that don't but have been reading my posts for a while here) certainly have seen that I'm not a fan of modern copyright law. I think it's too complex to work, too restrictive on first amendment rights, and generally gets used in a way that is anti-art, not pro-art. But that's only the first version of myself. You probably also know that I'm not a copyright abolitionist or copyright-basher. Version two of myself thinks that copyright is necessary, and it can be used reasonably and in a huge variety of ways to actually make the world of culture a lot better.

Now if I were solely that first version of myself, I'd look at a story of an artist doing something weird with copyright law and I'd say "AHA! Copyright is broken! This is endemic of the deeply flawed system!" But for this critique of a recent story involving Lady Gaga, I'm going to be entirely that second version of myself. The tech and law blog Techdirt recently posted a story that's all about how Lady Gaga's recent actions betray just how horribly flawed copyright law is, which is a story that the first version of myself would praise the hell out of, but the second version of myself is just too riled up by the whole thing to let that happen.

The article suggests that, if we look at how Lady Gaga uses copyright law, we can see just how broken copyright law is. The article asserts that Lady Gaga uses copyright in a way that does not at all match with the actual reason for copyright law's existence. Copyright law is meant to incentivize creation of new art, and the article says that Lady Gaga's attempts to use these laws for herself show just how far from this original goal the actual uses of copyright law have strayed.

Specifically, the article cites two major examples: Gaga's recent suit against "Baby Gaga" for the use of her image and her brand, and her treatment of photographers at her concerts, specifically that she requires them to sign agreements that give her copyright in their images. Let's take these one at a time, then talk about why the whole endeavor of criticizing Gaga's use of copyright law is actually really deeply flawed, even more flawed than the actual modern copyright system.

So the article only mentions in passing that the Baby Gaga thing is probably not copyright. But that's really important, so let's not conflate. Gaga sued on the use of her name and on the use of her personality rights, things like her sensibilities and her style. I don't think anyone's arguing that Lady Gaga doesn't have the right to control her image and her brand, which are the EXACT TYPES of things that trademark and personality rights are meant to protect. In other words, the Baby Gaga suit is not an example of Lady Gaga's twisted understanding of copyright law, it's a sign of her ACCURATE understanding of trademark and personality rights law, two fields of law that are actually surprisingly sensible compared to copyright law.

The slightly more sticky example is the photographer contracts. I don't like what Gaga is doing with these, but she's certainly within her rights to do it. Those contracts include terms about how they can use the photos, something that's pretty NORMAL for photographer agreements. These photographers sign agreements when they go to her concerts, so it's not like she's affecting their first amendment rights or something: they are essentially her employees when they contract with her.

The bottom line is that if she wants to put limits on the scope of these photographers' agreements with her, they still have to AGREE to those limits if they want the access she's agreeing to give them. They give something of value up and receive something of value in exchange. If they want to retain copyright of their images, they should photograph a different event, let someone who doesn't care about who owns their art become Lady Gaga's shill for that gig. This is a contracts and competition issue, not a copyright one.

The point of the Techdirt article is essentially that copyright has morphed into something terrible because people like Lady Gaga use it in unanticipated ways. But most of the unanticipated ways they list here aren't even copyright related: they're contracts and trademark related.

But let's not forget the real reason that copyright law is structured as it is, with lots of very small things declared the rights of the artist. It's designed to control the use of an artist's work, no matter what that art is and no matter what the use is. It's supposed to be flexible in the direction of rights-holders, ideally artists. And this flexibility is in place to allow for emerging markets.

Here's what I'm saying: if the purpose of copyright law is to incentivize art by creating ways in which artists can control the use of that art and therefore profit from it, then isn't allowing an artist who's show is a spectacle worth seeing the ability to contract with photographers carefully just another way of incentivizing creating these kinds of shows? Isn't Lady Gaga just taking advantage of one of those incentives with this kind of deal, not going against the incentive-based intentions of copyright law?

That's not to say that she's making a GOOD move or that she's doing something that is good for the legal landscape of art (she probably isn't). But she IS doing exactly what copyright law would have her do: she's monetizing her art using controls on distribution. It's what the founders would have wanted.

(Image: Lady Gaga Screen Print Painting, a CC-licensed photograph of a copyrightable screen print painting, probably a non-licensed derivative work of a surely-copyrighted, duly licensed image of Lady Gaga. IT'S COMPLICATED.)

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