You don’t own your tattoos

You might own your dance moves, but you definitely don’t own your tattoos. But can you effectively sub-license them?

Any creative illustration “fixed in a tangible medium” is eligible for copyright, and, according to the United States Copyright Office, that includes the ink displayed on someone’s skin. What many people don’t realize, legal experts said, is that the copyright is inherently owned by the tattoo artist, not the person with the tattoos.

For most people, that is not a cause for concern. Lawyers generally agree that an implied license allows people to freely display their tattoos in public, including on television broadcasts or magazine covers. But when tattoos are digitally recreated on avatars in sports video games, copyright infringement can become an issue.

Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers.

And this is not the first time this has been an issue.

Do Digital First Sales Exist?

If I have an iTunes song that I lawfully purchased and downloaded, can I sell that copy to anyone else? Ever? Not according to the Court of Appeal for the Second Circuit in Capital Records v. ReDigi.

ReDigi was a company that offered such a promise: sell your unwanted iTunes music! And they appear to have designed software to make that transaction as close to a physical transfer as possible:

ReDigi’s system differs in that it effectuates a deletion of each packet from the user’s device immediately after the “transitory copy” of that packet arrives in the computer’s buffer (before the packet is forwarded to ReDigi’s server). In other words, as each packet “leaves the station,” ReDigi deletes it from the original purchaser’s device such that it “no longer exists” on that device. Id. As a result, the entire file never exists in two places at once. Id.

The problem is that the Copyright Act prohibits making copies. And even if ReDigi effectively deletes the original copy (putting aside that this is relatively easy for a user to hide), ReDigi still makes a new copy. The law is violated.

ReDigi makes the reasonable objection that users should not be forced to sell their entire computer hard drive to sell the iTunes song they downloaded. The Second Circuit shrugs:

A secondary market can readily be imagined for first purchasers who cost effectively place 50 or 100 (or more) songs on an inexpensive device such as a thumb drive and sell it. . . . Furthermore, other technology may exist or be developed that could lawfully effectuate a digital first sale.

Sure. Ok. Although I think perhaps the court doesn’t understand the market, users, or computers.

You just don’t own digital copies in the same way you own physical copies, absent some major change in the law.

Curating Content May Defeat DMCA Protections: Mavrix Photographs v. LiveJournal

The DMCA safe harbor (17 U.S.C. § 512) immunizes websites and other internet service providers from copyright infringement caused by their users if the providers follow certain procedures. Generally this means providers have to remove copyrighted works as soon as they become aware of them.

But what if you have a bunch of volunteer moderators / curators determining which user submissions to post? Are you responsible for copyright infringement if the volunteers approve a copyrighted user submission? It seems likely, if those volunteers qualify as “agents” of your company.

In Mavrix Photographs v. LiveJournal, Inc. (April 2017), a Ninth Circuit panel concluded that volunteer moderators on a website could indeed be “agents” of the website, although the agency determination is a question of fact that cannot be resolved on summary judgment.

Importantly, the panel ruled that curating the posts (i.e. only posting about 1/3 of the submissions) probably didn’t qualify LiveJournal for the safe harbor of posting “at the direction of the user”. Previous decisions have allowed websites to take advantage of the safe harbor so long as they were only making “accessibility enhancing” changes to posts such as reformatting or screening for offensive material. But curation may be too much control:

The question for the fact finder is whether the moderators’ acts were merely accessibility-enhancing activities or whether instead their extensive, manual, and substantive activities went beyond the automatic and limited manual activities we have approved as accessibility-enhancing.

This reading appears to be well within the statutory language, but it threatens to put additional burdens on websites that curate (and begs the question of what exactly is curation / moderation). If you curate, how can you also ensure the content is not copyrighted by someone else? It’s not obvious.

Update: A group of internet companies including Google and Facebook have urged en banc review. They argue that this decision incentivizes companies to do no pre-screening of user submitted material, and that this is bad policy and contrary to the intent of the DMCA.

This all boils down to whether some forms of pre-screening are extensive enough to consider it reasonable that the company should police copyright infringement too. And to be fair the panel’s decision didn’t say one way or the other: it just said there are enough fact issues that you can’t decide on summary judgment.