November/December 2003
Robert Edmond Mittel, Esq.                                      
Interviewed October 10, 2003 in Portland, Maine.
Q:  Why did you become a lawyer?

A:  In 1963 I began to be captivated by the thought that lawyers could make the world a better place.  I took a reconstruction course from a guy named Kenneth Stamp, who was probably the leading revisionist historian on the Reconstruction.  He opened my eyes to what the Civil War had been really about and what Reconstruction had been really about and the true tragedy, probably unavoidable (present thinking), of its failure.

In 2003 terms, with a greater level of personal understanding: because I really like arguing with people in charge. It doesn't have to be a politically important case. Any case will do the trick as long as I get to tell somebody else they're wrong.

Q:  Where did you go to law school?

A:  Hastings, which is part of the University of California in San Francisco.

Q:   How did you end up in Maine?

A:  When I was in the army in Washington, I read an article in Ramparts magazine about a guy named Don Gellers, who represented the Passamaquoddies. I called him up and asked him if I could do anything. I had time and I was able to go to the law library. He gave me an assignment. I did it. Forgot about it. Then went back to my life.

About a year later Tom Tureen called me. I had never heard of Tom Tureen until he called to ask about Don Gellers. He said he was a law student and he was going to go to Eastport and work with Gellers during the summer through the Law Students' Civil Rights Research Council. When he returned he said he had read the paper that I had written for Gellers ... it was no good ... and I said, "What do I know. I know nothing about Indian law. I tried to do the best I could. Tell me what was wrong about it."

Anyway, Tureen and I became friends.  We talked about Maine and it sounded like a neat place. And so I came here and looked for a job and I've been here ever since.

Q:  What types of law do you practice?

A:  At the moment my practice is probably a quarter intellectual property, copyright and trademark work, and the rest is a mix of business, employment and probate litigation.

Q:  I'm interested in talking about copyright law.

A:  O.K.

Q:  Can you explain what copyright law is?

A:  In its simplest iteration, copyright is about the form in which you express your ideas. It doesn't protect the ideas. It protects the form in which you express them. So, if you have an idea about a love between children of two families at war with one another, either because of specific personal things or because of longstanding geo-political cultural issues, and you write that down, you've got Romeo and Juliet or you've got Abbey's Irish Rose or you've got West Side Story and so on and so forth.

Q:  Can you share any history of copyright law?  It started in England, right?

A:  Yes. What I know about it is from reading cases. I've never briefed this. I'm not a law school intellectual property person.  This wasn't taught at Hastings, or very many law schools, when I went to law school.  It was a very, very, very narrow area of law when I began practicing and essentially was only practiced in big cities and only by a very few people.

That has changed not inconsiderably over the years. It has changed dramatically with the advent of the internet. Whether people can make money just being intellectual property lawyers in places like Portland, Maine, I don't know. I think that there are hardly any lawyers who practice it exclusively in Portland.

Its origins, I think, came from the fight between the artists and the people who made the money, mainly in 1600, the printers. Nowadays you see that played out in all the various versions on that theme with music litigation and file sharing.  Going back to then, the idea was to make sure that you could protect both the author of the work that got printed and the printer. The publisher, who was also the printer, would pay the author for the work and in exchange for that would be the only person who could publish the copies. That was the only way you could get a copy ... with a printing press. That's how it started.

Otherwise, I would write a novel, a play, or a piano sonata. You would publish it, giving me money for it. And the week after, some other person would publish it, not having paid the money up front. And, you would be really unhappy. Or, I would write it and take it to you. You would read it and say, "This is no good. I don't want this." I'd go home and next week it would be out selling like hotcakes and I would be angry. That's how it started, as I understand it.

Q:  What works are protected?

A:  Well, stuff that gets written down, works of graphic and sculptural art, photographs, music, including the sound recordings since 1972, I think. The statute has a list. You always ought to go to the list.  Title 17 of the United States Code has a number of sections. Here's what Section 102 says: "literary works, musical works, including any accompanying music, dramatic works, including any accompanying music, pantomimes and choreographic work, pictorial, graphic and sculptural works, motion pictures and other audio-visual works, sound recordings and architectural works."

Q:  Buildings are protected?

A:  And the plans. I actually have a building case right now.

Q:  So, if somebody looks at a building and likes how it's designed, they can't go home and design something that is similar to it?

A:  Let's take the easiest version of the question.  If the building was erected last year, it is subjected to the Copyright Act. You can't go and make your own building that looks substantially similar, unless the first building was so unoriginal that it wasn't entitled to copyright protection.

Q:  And the obvious question, who decides whether it is original or unoriginal?

A:  The jury. And the economics of bringing a lawsuit often determine that question as well.  It's expensive, expensive, expensive litigation.

Q:  How does one receive protection?

A:  Nowadays by fixing the work in a tangible medium of expression. That's technical. I think that's word for word. Let's see what the statute says: "fixed in any tangible medium of expression."   That means that when I sing into a microphone and my words are recorded on magnetic tape, that sound recording is protected by the Copyright Act.  In the old days, before 1978, you had to put a copyright notice on your work in order to protect it. That is no longer true.

Q:  Is it a good idea to put those ©'s on works?

A:  Sure. Especially if it's the kind of work that some people or lots of people might not think is protected by the Copyright Act. Works of graphic and sculptural art. T-shirts. You often see it on T-shirts. You always see it in books, but that is a carryover. And I advise people to do that. It doesn't cost anything.

Q:  What does it mean that a work is protected?

A:  It means that when someone makes a substantially similar copy or an identical copy, you can sue them and get damages and get injunctions.

Q:  Do you have to register?

A:  To file the suit, yes. But you can wait. The real reason to register earlier than just before you file the lawsuit is to get statutory damages, which are much easier to prove than actual damages, and to get attorney fees.

Q: You can wait to register until just before you file a lawsuit?

A:  Lots of people, especially economically smaller people, don't want to pay the registration fee.

Q:  What happens with an infringement suit?  You said that it costs lots of money.

A:  It's in federal court. That makes it cost more than if it is in state court. What happens? You're usually talking about people who have money to spend a considerable amount or enough potential to win so that somebody doing the case on a contingency fee basis is willing to invest lots of time.

You have all of the federal court cultural dynamics about doing cases bigger and better than in state court. And, you usually have bigger firms and better lawyers. It's just hard stuff.  You have to be smarter than the average bear to really deal with it. I hope I'm not tooting the IP Bar's horn. It's just very weird stuff.

Q:  What are the remedies?

A:  You get damages. You get injunctions. You get attorneys fees.

Q:  Let's go to the internet. Are works on the internet protected?

A:  You have the two basic questions you always have. Is the work fixed in a tangible medium of expression and is the work original? If you answer both of those questions affirmatively, then yes, the work is protected.

When you say, "works on the internet," what do you mean?

Q:  What about a web site?

A:  Web pages are definitely protected. Absolutely.

Q:  Are there copyright laws specifically pertaining to the internet?

A:  No, generally.

The DMCA (Digital Millennium Copyright Act) deals with internet-related issues. But it is really about the technical stuff, as in physics and electrons.

There's a section of the act devoted exclusively to computer stuff. Section 117. There are cases about how much, when, and where software is protected. There are cases about loading stuff in and out of your long-term memory.

Q:  You said you didn't learn copyright law in law school. How did you start practicing in copyright law?

A:  I started working at Pine Tree Legal Assistance in 1968. I got to know a guy, Stuart A. White, who was from Island Falls, born and raised, and who went into the navy.  He went to Harvard Law School, got to New York, and became a nationally know litigator ... patent and copyright primarily. In 1974 he moved back to Island Falls with his wife and his kids and that's when I got to know him. After a while they moved to Portland. 

For a while he practiced out of his house. Then he and another guy opened up a small law firm and he called me up and said, "Do you want to work with me? I know that you know nothing about intellectual property law. I can teach you that." I said, "Sure." It was time to leave Pine Tree. He taught me everything I know, except what I have learned since then, about intellectual property law.  He's a wonderful man.

Q:  If someone wants to register a work, what does that person have to do?

A:  They have got to fill out the form. The website that you go to is: "Loc" stands for Library of Congress.  And it tells what forms to fill out. I don't know if the copyright office takes electronic registration. I know the trademark office does.

Q:  What about websites that are changing from day to day?

A:  There is a specific section of the statute that allows you to do group registration filings so that you don't have to keep paying the fee and keep filing.  Section 408 (c)(2) applies to: "single registration for a group of works by the same individual author . . . all first published as contributions to periodicals within a twelve month period."

So, you say , "changes every day," what do you mean?

Q:  Websites that change their web pages from day to day. 

A:  My guess is that each of those screens is protected.  Do they register each screen? What do I know?

Q:  This is cutting edge stuff, so you have a say in where to take it.

A:  Only as long as people pay attention to me. Not likely. There's a footnote in Nimmer on Copyright that I am responsible for. I went to a seminar and the guy who was editing Nimmer was teaching it. And, I said to him during a break, "Talk to me about the giant Angus up in the parking lot in Bethel."

On the way to Sunday River there is a parking lot in Bethel where you park to go to the bank and the movie. A couple years ago the Bethel Chamber of Commerce built the biggest snow person ever. Parts of it were still there in early July. And I said, "Is that something that is fixed in a tangible medium of expression?"

Q:  What does the footnote say? Does it say it is protected?

A:  "The world's tallest snowman, built out of nine million pounds of snow, in Bethel, Maine, presumably qualified as fixed by virtue of its surviving until mid-March." This is in Section 8.02 in Nimmer, footnote 14.1.

Q: Let's talk about downloading music.

A:  My sense is that anybody who does file sharing knows at some level that they're doing something wrong, that it is against the law. Most everybody who does it complains, with justification by the way, about how much music costs in the store. And, eventually Congress will sort out what's supposed to happen. That's what Congress is for. It is supposed to deal with conflicting interests and make a solution. And, if it doesn't work, change the solution, and eventually the thing gets solved.

Q:  The music companies are going after the downloaders, right? What about the artist?

A:  Usually the artist records a song. The copyright of that song is assigned to the publisher.  You write a song. You sell it. Let's take Satisfaction by the Rolling Stones. The publisher paid them for the song. And, if they had a really good agent, every time this song is played on the radio, any time anybody buys the disk, any time anybody makes a derivative work, they get money. If not, if they didn't make such a good deal, then the publisher gets the money.  It's part of who makes the best deal, who has the most leverage, who's got the best lawyers.

Under the home taping exemption statute, you can make copies of your LP records and put them on a tape and not infringe the copyright if it is for your own home use. The problem with this medium, that is ... the insides of computers, is that it's a perfect reproduction. 

Q:  Downloading for a small fee makes sense.

A:  Yes. I think that's where it's going to go.

Here's an interesting thing. If you grew up in one place and you're a sports fan, you're going to want to know what's going on back home. You're going to want to follow your team on the other coast.

I'm a 49er fan. I'm a San Francisco Giants fan. Before this year, I could listen to the 49ers over the web for free because the NFL had decided it was better marketing and not an important enough profit center to just let radio stations stream their audio of those games. When there was an important enough game on Sunday afternoon, I would listen. If I wanted to listen to the Giants on the web, I had to pay a monthly fee. So I made a consumer choice and I didn't listen. Now the NFL has adopted the Major League Baseball plan and it will cost a fee to listen to the 49ers.

Q: What, then, if you put a videotape in and record an NFL game on TV and send it to a relative? How is that any different from downloading music?

A:  You're interfering with the ability of the copyright proprietor to sell it for profit. The relative could buy a satellite dish and could subscribe to the NFL package and therefore could pay for the opportunity to watch the game.

Q:  So it's an infringement?

A:  Sure.  Now, they're not going to do anything about it.

Q:  But, you're not doing it for profit.

A:  That's one of the tests that determine whether you get a pass on an infringement ...  whether the infringement is fair use. The most obvious examples that people know about is parody. Example: Pretty Woman by Roy Orbison was parodied by 2LiveCrew fifteen years ago and they were sued by the Orbison copyright holder for copyright infringement. Fair use, which is in Section 107 of the Copyright Act, says you can infringe for such purposes as education, criticism, comment, reporting. One of the factors to consider is the effect of the use on the potential market forum.

It's difficult to tape a thousand copies of a game. You're not going to have the technical capability. And, you're not going to mail a thousand copies to a thousand friends. You're not going to pay for that or spend the time wrapping them up in a box. If I want to email a version of a song to everybody in my email address book, it takes five seconds.

It is fascinating. It's a whole new world.

Q:  If you don't want to infringe on someone's copyright, how do you find the source?  For example, I had to track down the copyright holder on the Trumbull image on this website.

A:  Let's talk about that.  It's a painting done in 1787. When that painting was hung, it was not published because copies were not made available for sale to the public.  The term of the copyright did not begin to run. Until 1978, when the new Act took effect, this painting was still protected by the Copyright Act one hundred ninety years after it was painted.  It was protected by common law copyright.

That photograph on your website is a derivative work . . . a second edition or a changed version. Unless that photograph was taken with the permission of the copyright proprietor, perhaps the heirs of the painter, it was an infringement. Assuming that it was done with permission, then somebody owned the copyright in that photograph. I'm guessing that photograph was made available for sale to the public and so its term began to run.

Let's pretend that photograph was made in 1910, when the 1909 Copyright Act was in place. The term of copyright was twenty-eight years plus, if you did it right and that was hard, an additional twenty-eight years when you renewed.

Let's pretend it got renewed. Fifty-six years from 1910, in 1966, that picture was out of copyright and was in the public domain. If you copied it in 2001, you weren't infringing. You were infringing, however, the copyright in the painting that is hung in the museum because that copyright is still in place, but for whatever change in its term that was affected by the 1978 Act.

Doing copyright searches is very hard. You start looking around. You can go to the Library of Congress.

Q:  Another what if...I found a book published in about 1870 that has sketches of the Civil War. Sometime in the twentieth century the copyright must have run out and somebody published it and copyrighted it.

A:  It depends on what they are protecting. It is the same story I just told you.  Let's pretend there is a book published in 1870. It was out of copyright in 1930. Somebody prints and publishes an identical copy or somebody prints it with a forward or somebody prints an identical copy with a forward and critical footnote.  They have no right to the original text. It is in the public domain. Any one can copy it with no fees, no damages, no nothing. In the second version, they own the copyright to the new forward. In the third, they own the copyright to the forward and the footnote.

Q:  So I can copy the sketches in that old book to my heart's content?

A:  As long as what you're looking at is an identical copy to what was published in 1860. Once something is in the public domain, it's in the public domain. Someone can't make a copy of it and say, "I put all this work into it and it cost me money to print it and so now I own it." They don't. If they made something new and it's really new, they own the really new part and that's all they own.

If somebody took those sketches and rendered them into three-dimensional velvet wall hangings ... a derivative work ... they own the copyright, if the copyright has gone into the public domain. But, someone can't take a picture of the velvet work without infringing.

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