A Legal Blog by Aaron | Sanders, PLLC

Richard Prince Is a Jerkface, but Don’t Blame Instagram

If You Call it Art, Is it Automatically Fair Use?

By now you’ve probably heard that Richard Prince is a jerkface. Or that he is a trolling genius. I am not here to dispute either of those things. They are not mutually exclusive, for one thing. To the contrary, I’m here to argue that what he’s doing is copyright infringement and not fair use, regardless of whether he is a jerface or a trolling genius.

Instagram Only LOOKS Like it Owns Your Stuff

But, first, I’m here to tell you to stop blaming Instagram. Yes, there is a fairly widespread narrative (myth?) that social media sites “own” anything you post. They don’t—at least, if by “own,” you mean “own the copyright in” the thing you posted.

Some confusion is understandable because we have different ideas of ownership depending on the context. All social media sites, including Instagram (and Facebook, etc.) grant themselves wide latitude to use what you post. If you define “ownership” as “control,” which is a reasonable definition with some basis in law, then this sure looks like a loss of ownership on your part, which implies a commensurate gain of ownership by the social media platform. It’s a short leap…

Fountain 1917, replica 1964 Marcel Duchamp 1887-1968 Purchased with assistance from the Friends of the Tate Gallery 1999 http://www.tate.org.uk/art/work/T07573

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Why Twitter Has Nothing to Fear from Sony

The Attack of the $1200-an-Hour Gorilla

Someday, someone will have to explain to me what is so awesome about David Boies. He bills out at something like $1200 an hour, which ought to buy a lot of awesome. But there’s not much awesome about his strategy for suppressing the dissemination of internal Sony documents after the “Guardians of Peace” hack. You might have heard about it.

To be fair, I’m sure he’s at least a pretty good trial lawyer, but there are lots of pretty good trial lawyers. And it’s nice that he uses those trial skills in the service of unpopular clients, such as Napster, George Steinbrenner, the U.S. Government, the SCO Group, Oracle, Andrew Fastow and Al Gore. Even the unpopular require competent legal representation. And just because he loses most of those cases doesn’t mean he’s a poor trial lawyer. It could be that these cases were all hard, and there’s only so much even the best trial lawyer can do with bad facts and unfavorable laws. And he was really gutty to leave Cravath rather than abandon a client. And he once defended the right to free speech when he defended CBS against Gen. Westmoreland

But would you…


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Pinterest and Copyright: So Why All the Fuss?

Part 2 (of 2): Welcome Nice Pinterest Users to the Bizarro World of Copyright and the Internet!

Last time, we took stock of the recent kerfuffle about Pinterest, copyright and Pinterest’s Terms of Use (“TOU”), and we even looked at those horrifying, normal TOU. In this post, I want to step back and answer two basic questions: Should Pinterest users really worry about being sued for copyright infringement? And is there really something to all this fuss?

I’ll preface the rest of what I’m going to say by emphasizing that, although I’m a lawyer in this field (i.e., copyright and the internet), I’m not giving you legal advice here. A lot of this is reasoned speculation, but I could turn out to be wrong, and I don’t know your specific legal situation and speak to it. OK?

Is Someone Really Going to Sue Nice Pinterest Users?

How much should you worry if you’re using Pinterest? I suspect you don’t have that much to worry about. Unlike Napster, Pinterest isn’t threatening an entire livelihood here. Flickr has already done all the damage the internet is going to do to professional photographers, in a perfectly legal manner, by (essentially) crowdsourcing cheap photographs and cutting the…

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Pinterest and Copyright: Everyone Just Take a Nice Deep Breath

Part 1 (of 2): Teacup in a Tempest

So, here I was all ready to write a post about how everyone should just stop freaking out about Pinterest’s terms of use (“TOU”), when someone tweeted this excellent piece from the Copyright Librarian (updated here) that basically makes all the points I was going to make. And lots of other people have been making all kinds of other points about Pinterest, copyright and terms of use. Is that going to stop me from writing about Pinterest? Of course not!

The Pinterest kerfuffle started a couple of weeks ago with several articles about a lawyer–not a copyright lawyer, but a good, solid lawyer–who (1) is a photographer and (2) actually read Pinterest’s TOU. In tears (a perfectly natural reaction from reading any TOU), she took down her Pinterest account. This generated a good deal of interest across the Internet, including from Pinterest’s CEO–and, alas, a good deal of legal misinformation.

Nipping it in the Bud

We’ll focus on the article in Business Insider article that “broke” the story (as opposed to the original blog post). What happened was that the lawyer/photographer posted a blog entry about how she came to the conclusion that she should stop using…

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