Wednesday, March 28, 2007


[This article originally appeared in the 3.20.07 issue of Metroland, which I have been informed is not a "magazine", but rather a "newspaper." I've been writing for Metroland for what, 15 years now, and I always thought it was a magazine. It's like not finding out that you've been adopted until you're an adult. Actually, it's nothing like that.]


No, I’m not gonna talk about the Supreme Court’s recent free-speech case. I just like saying “bong hits for Jesus.”

Hey Bullwinkle! Here’s something we all might enjoy! The Intellectual Property Society of Albany Law School is hosting a panel discussion on fair use in copyright law on Tuesday, April 10 at 5 PM in the Dean Alexander Moot Court Room. The panelists will be entertainment lawyer Owen Warshavsky from the NYC firm Troutman Sanders, Jennifer Pariser, the VP of Business and Legal Affairs at Sony/BMG, Sheldon Halpern, the Honorable Harold R. Tyler Jr. Chair in Law and Technology at Albany Law School, and yours truly, the proprietor of the biggest law firm in Housatonic, MA. If you don’t already know, “fair use” is the fuzzy legal doctrine that allows limited copying of other’s works for various purposes, and is a crucial factor for such things as appropriation art, parody, music sampling, education, and especially that whole internet / remix culture thing that all the kids are talking about. I doubt that any of us four panelists are going to agree on much of anything, and the discussion is going to be lively and fun, to say the least. And if that’s not enough to get you out on a Tuesday, there will be a reception following the discussion. That’s polite-talk for free beer. See you there.

I tend to not think about tax issues much, other than paying my own taxes when I’m supposed to, but there’s some tax legislation in Congress right now that deserves your support. Grassroots arts organizations often depend heavily on artist donations for their survival—how many times have you gone to a fundraiser that features one of those silent auctions of donated artwork? Half of the stuff on my walls I got that way, usually for a ridiculous price so low that it’s embarrassing or an insult to the artist or both. It’s often a rather sad situation where struggling artists donate their works to help support a shoe-string organization doing God’s work; it shouldn’t be that way, but there you go.

And to make it all the more ridiculous, the artist can’t write off the value of the work as a charitable donation. Under current IRS rules, the artist can only write off the value of the raw materials in the work. The cost of the paint, canvas, clay, dried elephant dung, whatever, that’s the artist’s tax write-off. And to go from the ridiculous to the sublime, if some collector first buys the painting instead and then donates it to the organization, the collector can write off the full fair market value of the work.

In my experience with a number of not-for-profit organizations, collectors rarely donate their acquired works. Artists always donate. And they get screwed in the process.

Maybe not for long. There are bills before both the U.S. House and Senate that would provide artists with a tax deduction for the fair market value of their works when they donate them to educational and collecting not-for-profit groups. The bills have bi-partisan sponsors and could use a push to keep from getting lost in the legislative shuffle. They’re bills H.R. 1524 (House) and S. 548 (Senate). Write a letter.

John Perry Barlow was sure disappointing on Colbert the other night. It was like he needed a nap while Colbert was loaded for bear, as usual. Barlow was there to talk about the EFF’s lawsuit against Viacom for demanding and getting the removal of obvious parodies of Viacom’s shows from YouTube, in particular a mash-up of Colbert that had posted (Viacom owns Comedy Central, which owns the Colbert Report). The lawsuit is a nice push-back to Viacom’s ridiculous $1 billion suit against YouTube for “allowing” Viacom’s properties to be posted on the YouTube site. There were all sorts of points to be made, mud to be hurled, and Barlow barely threw a punch. I’ve seen Barlow speak a couple times and he’s brilliant and funny and engaging, but some concepts just can’t be made in a punch line, or as is always required on Colbert, a counter-punch line. The two guys were clearly operating on different speeds, and faster always wins.

My thoughts about the Viacom-YouTube suit are posted on my blog, and suffice it to say that Viacom’s suit strikes me as largely a sham, and the fact that Viacom is on the short end of a second lawsuit for being a bully bears that out. And the MoveOn takedown isn’t an isolated occurrence—I’ve got a nephew whose skillful South Park parody was knocked off YouTube by Viacom as well. Viacom’s tactics amount to throwing out the baby with the bathwater, and no doubt thousands of perfectly legal works, works of parody and comment, have gotten the boot because of Viacom’s overaggressive nonsense.

And what this is all about is the doctrine of fair use, and you’re thinking “where have I heard of that before?” Go back to the first paragraph. That’s where.


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