by Teddy Wayne
When food blogger Monica Gaudio complained to editor Judith Griggs of Cooks Source magazine about the theft of her online article about apple pie, she asked for an apology and a small donation to the Columbia School of Journalism in lieu of payment. The incident never would have made national headlines had Griggs not condescendingly countered that Gaudio should pay her for cleaning up her article. “But honestly Monica,” she wrote, in what has turned into a widely mocked meme, “the web is considered ‘public domain’ and you should be happy we didn’t just ‘lift’ your whole article and put someone else’s name on it!”
While Griggs’ faulty response was met with uproar, it chimes with the prevailing Wild West mentality of intellectual property on the Internet. As three members of the Authors Guild argued in a New York Times op-ed last week, “The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths.” The web is too vast and unsupervised an arena to track down all instances of infringement — and even when they are discovered, Internet material is not considered big enough game to prosecute. “South Park” recently “lifted” dialogue from a web video parody of the film Inception, though its creators apologized and blamed it on confusion over which lines were from the parody versus the original. Jay Leno also got into the act recently, airing a web video and claiming, “We put together a little montage” (the show properly credited the creators the next night). Were they “Saturday Night Live” sketches or “The Daily Show” montages they’d been taking, it’s doubtful either show would have been so bold.
I discovered firsthand how difficult — even, at times, impossible — it is to protect one’s online material when, a year and a half ago, I received an email from a former magazine editor telling me to investigate an episode of “CSI: NY” that contained a number of parallels to an article I had published online.
For those who have made the sage career decision not to be freelance writers, not only is the money significantly lower for online writing than it is for print, but your rights as the creator are far more tenuous. It may seem like an issue that affects only a small, relatively privileged class of American workers, yet we’re transitioning to an online-only model where anyone with an Internet connection can be a journalist (or video parodist, or food blogger, or Facebook updater), and if we wish to uphold the same rigorous intellectual property rights that apply to print, we must begin employing them now with content for the web.
Let’s pause for a minute to pity the poor photographer, whose online intellectual property is in even greater peril — not to mention the amateur photographer, which by the way means you, who has agreed to these terms every time you upload a keg-stand shot to Facebook:
For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
My piece, “Sindergarten,” was published on Radar’s website on March 30, 2007 — an April Fool’s hoax that pretended to be a real news article for that then-satirical publication. Written in the style of an alarmist, “kids-today-are-crazy” investigative article for a bourgeois magazine, it fooled a number of readers and web outlets. On April 12, 2007, the article was revealed on Radar’s website as a hoax and I as the author. Not Pulitzer-winning material, but it was all in good fun.
In the “article,” written under the pseudonym of Edward Wain, a wealthy private school teenager named Josh hosts an invitation-only, clandestine party for students at the Upper East Side private school Dalton called “Sindergarten” that is held on a school bus in different locations around New York. The privileged attendees act like kindergarteners — some girls sing “Ring-Around-the-Rosie,” other teens finger-paint and play children’s games, they all receive gold stars on their foreheads at the end of each party — thanks to, as I wrote, “5-methoxy-N n-diisopropyltryptamine, better known as the club drug foxy…a hallucinogen similar to Ecstasy said to facilitate a childlike sense of wonder with the world.”
The “CSI: NY” episode aired January 9, 2008 — more than nine months after my article appeared — and was called “Happily Never After.” Directed by Marshall Adams, the writing credits are to Daniele Nathanson and Noah Nelson, along with series creators Anthony E. Zuiker, Ann Donahue and Carol Mendelsohn. The episode’s first murder involves a cruel hotel owner named Fiona Chisholm who loves only her small terrier, Otto.
The Chisholm character is a perfectly legal “ripped-from-the-headlines” appropriation of Leona Helmsley, whose death the previous year made even bigger headlines when she bequeathed a $12 million trust fund to her terrier. The news about Helmsley is in the public domain (Judith Griggs should know) and accessible to anyone. An article like “Sindergarten” is not; it purports to be an investigative piece of journalism covered only by the writer himself.
In the second murder, a girl is found dead on the windshield of a school bus with a gold star on her forehead. Solving her case takes up the majority of the episode. The detectives eventually trace her death to, according to CSI’s website:
the world of “Wildgarten”: clandestine pop-up parties where New York’s Prep School students turn Manhattan’s kindergarten classrooms [the one in the episode is an Upper East Side private school called Dunhil] into their version of Neverland, complete with the latest designer drug [foxy methoxy]…
… and where the prep schoolers act like little children under the auspices of a young man named Bryce who seems to be the host and who has access to school buses. Girls sing “Ring-around-the-Rosie,” teens finger-paint and play other children’s games, Bryce affixes a gold star to the forehead of each attendee at the end of each party, and a lab scientist describes foxy to the detectives as “methoxy diisopropyltryptamine… also known as foxy… makes Ecstasy look like aspirin, and users claim it induces this childlike wonder.”
Huh, I thought, that’s a lot of — to use a phrase I would soon learn — “random similarities” between the episode and my parodic work of fiction, as my Radar editor¹ noted. Granted, the similarities constituted only five minutes of the 40-minute program. Still, I was curious if what I had written was protectable by copyright law.
As I owned the rights to any audiovisual “adaptation” of “Sindergarten,” I therefore believed I could prosecute anyone I felt was taking too many liberties with random similarities in another medium. Not so; it turned out that I had a conventional “work-for-hire” contract, which meant Radar was the copyright holder and only they could sue.
I contacted Radar’s new management (the original entity had folded and was turned into a full-blown gossip site by American Media Inc. in the fall of 2008) and told them I thought a TV show had a number of similarities with an article I wrote, and since they were the copyright holder, I would provide them all the details in exchange for a percentage of any future settlement their legal team might win.
They were interested, and offered me ten percent. A few months later, though, Radar informed me that they were not pursuing the case without telling me why, citing attorney-client communications.
Fine, I said; how about if Radar transfers the copyright to me for a limited time and I’ll prosecute, at my own cost?
Sure, their lawyer told me over the phone. My cut of the settlement in which I would now be doing the legwork and bearing all the legal fees?
Still ten percent.
I was more concerned about the principle than the payday, so I agreed verbally. However, I couldn’t find any law firms that would take me on a contingency basis for such a small potential payout. In the meantime, my first novel was published in April, and I focused my energies on it.
Eventually, in the fall, I heard about the wonderful organization Volunteer Lawyers for the Arts, which provides pro bono legal aid to artists who can’t afford representation. They wouldn’t take my case until I had the copyright, so I informed Radar’s lawyer that my novel’s publication and the search for new representation had delayed me, but I was now ready to sign the contract transferring the copyright to me. His response:
Radar is no longer interested in the proposal and is ending all negotiations. Radar believed you abandoned your pursuit of this idea after not hearing from you for several months and considers this matter closed.
Radar is the owner of the copyright, per the agreement that you previously entered with it, and under no legal obligation to move forward, make any transfer, license or sale, inter alia.
There went my recourse to the justice system. (For the record, if anyone out there has a lawsuit they believe has merit and wants to prosecute and pay all legal costs while giving me 90 percent of the settlement for doing nothing, call me.) All I really desired was some explanation from “CSI: NY”; perhaps they weren’t aware that the two writers had come up with these random similarities. I wrote a letter to the show’s production company, CBS Television Studios, detailing the correspondences between my article and their episode. I expected either silence or, at best, a polite swatting away of a pesky fly. If they truly deemed my case without basis, I doubted they would waste their expensive in-house counsel’s time until I legally filed a complaint.
A few weeks later I received a six-page, single-spaced letter from CBS’s Vice President, Assistant General Counsel. She dismissed my claims of infringement because copyright does not protect ideas, only the “expressive elements of those ideas.” Therefore, the concept of “privileged New York City youth attending clandestine parties where they engage in illegal drug use and revert to pursuits and conduct typical of kindergarteners” is not protectable; only the expressive elements, “such as dialogue and plot,” are. And what seemed to me disturbing coincidences were, according to her — here’s the phrase I learned — “random similarities.”
In my view, though, the Sindergarten party wasn’t simply an idea or concept; wealthy teens taking foxy and acting like little kids is the article’s entire “plot” and constitutes its “details.” And even in the context of the larger murder plot on “CSI: NY,” for those few minutes, the episode’s plot and details are based around the Wildgarten party.
Her arguments turned to the contrasting mediums and tone. “The ‘Sindergarten’ concept is depicted in what appears to be a legitimate news article, not a dramatic one-hour television show involving the solving of two murders,” she wrote, and “the Episode’s tone is dark, and it clearly does not end as optimistically as the Article.” Moreover, “the Article serves as a piece of social commentary,” as it postulates (satirically) why Sindergarten parties have become a phenomenon among prep schoolers who grow up too quickly in the pressure cooker of upper-crust Manhattan, whereas the episode offers no such analysis. By that rationale, I can legally write a short story based on a recent “CSI: NY” episode — and, to make my case more airtight, just make the ending happier and with social commentary (Gary Sinise joyfully returns to his theatrical roots after becoming sickened by the phony entertainment industry!).
The gold star, Ring-Around-the-Rosie, finger-painting and other children’s games, she contends, “are few and insignificant in the context of the Episode,” even though the gold star, the morbid lyrics of “Ring-Around-the-Rosie,” and finger-painting all help provide the main clues for the murder. One detective sums up the evidence as such: “So we got finger-paints, kiddy clay, and a gold star. Items that might be found in a kindergarten class or a toy store.” In addition, the lawyer argued, “A number of them logically flow from the idea of a kindergarten-themed party, and are therefore not protectable expression.” They do indeed logically flow from a kindergarten-themed party; so do, say, a number of other songs children might be singing besides “Ring-Around-the-Rosie,” a number of other activities besides finger-painting, and a number of other objects besides gold stars.
As for the expressive elements of the drug foxy, neither the real chemical name is protectable (I’ll give them that) “nor is the commonplace phrase ‘childlike wonder,’ whether on its own or referring to a drug-induced state.” Perhaps not on its own, but to choose the specific drug of foxy, to provide its full name, and then to state for both that it induces a “childlike [sense of] wonder” seems like a lot of… random similarities.
Her biggest salvo is that the rest of the episode has nothing to do with my article, which I never claimed; my only area of interest was the five-minute portion that I believed contained a number of similar “expressive elements,” just as the rest of “South Park” and “The Tonight Show” had nothing to do with those web videos. Based upon all the evidence, she wrote, “no reasonable person could conclude that the Episode infringes upon any protectable elements of the Article.”
Finally, CBS’s lawyer wrote that, after conducting an investigation, “we are confident that no one who participated in the writing of the Episode was aware that the Article was anything other than what it purported to be — a legitimate news piece reporting on matters of public interest… Typically, in practice, factual works do not enjoy the level of copyright protection accorded to fictional or creative works because facts are in the public domain and may be repeated or incorporated into other works without permission.”
Putting aside the admission that the “CSI: NY” writing staff had, in fact, read my article, I’ll give them the benefit of the doubt about no one’s knowing it was an April Fool’s hoax. But that’s irrelevant; a uniquely reported news article like “Sindergarten” — unlike, again, the details of Leona Helmsley and her little dog, too, which were disseminated to everyone — is as protectable as the short story it actually is. Neither form it might take resides within the “public domain” — and accidental appropriation is never a valid defense.
It was solely my fault for not being sophisticated enough to scrutinize my Radar contract more closely and request the copyright. But most freelance writers, happy to get a chance to publish at all in this collapsing industry, do the same. And all writers hope that, if there’s ever an infringement issue, their publisher will defend them. Yet online writing is still a second-class citizen whose protection we guard less zealously. Had my Radar article been in ink, I don’t think any television writers could have deemed it a viable free source for the “concept” and “random similarities” — and, very likely, my contract would have preserved the copyright for me.
I concede that I’m not grievously injured by any of this (unless one takes into account hypothetical lost income from CBS’s not optioning my article). I’m even grateful for the learning experience. As a writer with no legal rights to defend myself, all I can do is exercise my freedom of speech (so long as I say nothing libelous). And I can also offer this Monica Gaudio–style deal:
I’ll publish a follow-up here wiping the slate clean and singing the praises of CBS if it donates what might have been an expected outcome of a successful lawsuit — around $20,000 (or about seven seconds of ad time during a primetime episode of “CSI: NY”), an entertainment lawyer with decades of experience told me — to these three institutions, divvied up equally: Volunteer Lawyers for the Arts; the Authors Guild, which advocates for the rights of writers; and 826 National, a nonprofit volunteer tutoring organization I work with that provides in- and after-school educational and literacy support to underserved children.
These institutions all seek to cultivate or protect writers in various forms. But honestly, CBS, as any reasonable person could conclude, the many similarities between them are all random.
¹ The Radar editor was not former Radar editor turned Awl proprietor Alex Balk, who was not involved with “Sindergarten” and does not watch “CSI.”