I am no rappin’ Barbie doll
If I were to create a hall of fame for Nevada federal judges, Phil Pro would make the list. He might not be No. 1 -- after all, who tops Lloyd George, the Michael Jordan of the Nevada bench? -- but Pro's a top all-star, in my book.
That said, the good judge just issued one uncharacteristically bad ruling last week. It involved a column I wrote last year that was ripped off in its freaking entirety and subsequently became embroiled in one of those messy Righthaven federal copyright cases.
At this point, I envision Righthaven lawyers spewing their morning coffee in fear the rest of this column might complicate the touchy litigation over their business model.
Rest easy, my counselor friends. Righthaven's legal structure woes will be resolved. I have no doubt a reasonable construct can be found for Righthaven to get on with the far more legitimate and righteous work of protecting newspaper content.
My worry is not rooted in the short-term, technical standing issue of Righthaven, but in the part of Pro's ruling that suggests newspaper "editorials" as a genre aren't creative enough to merit full copyright protection.
First, Pro's decision mixes up the terms of the art form. He refers to my writing as an "editorial." It's really a "column," which by nature is a more personal and creative expression than an editorial. Columns usually appear on the pages following a newspaper's unsigned editorials. It includes a name, a photograph and, in my case, it is written exclusively for those who pay me for the work.
Second, somebody in Pro's office (no doubt a person with a public employee pension) proceeded to analyze my column paragraph by paragraph. The column headlined "Public employee pensions: We can't afford them" contained (thanks to whoever counted 'em up) eight informational paragraphs, five that were purely creative and six that were a mix.
The ruling said: "The scope of fair use is greater when informational as opposed to creative works are involved. The types of works deemed to be creative to tilt this factor against a finding of fair use have been complete works of fiction, song lyrics, and Barbie Dolls."
Jeez, guys. Gimme a break. If I wrote a column in a Dr. Seuss or rap music format, would that make a difference? More to the point, newspaper column writing is by its very nature part reporting and part opinion. We articulate the news of the day (truth with a small "t") and then place it in the context of our own understanding (Truth with a capital "T"). And, by the way, that's not my original thought. I heard a federal judge in Honolulu say that once.
The fact that I might share the same conclusions with others who see the Truth as I do in no way makes it less creative and therefore less worthy of copyright protection, if I do say so myself.
Luckily, I don't have to say it all by myself.
Here's Ken Paulson of the First Amendment Center:
"Perhaps most surprising, though, was Pro's conclusion that editorials deserve less protection. Oddly, the article that Pro describes as an editorial has all the markings of a column. It bears the byline of Sherman Frederick, former publisher of the Review Journal, and it's not exactly a dry recapping of the facts:
"Shifting public workers to a 401(k)-style retirement plan is 'not particularly complicated once you tune out the mewling and puking from self-interested public-sector unions and acolyte politicians who enable defined-benefit plans to become a big honey pot from which one may dip at the expense of unborn taxpayers,' Frederick wrote."
"No doubt the judge counted that as one of the five creative paragraphs, but all that mewling, puking and honey-potting is testimony that this is a vibrant, no-holds-barred expression of opinion, not a dry restatement of public policy."
And here's Tom Mitchell, former editor of the Review-Journal, in his blog, 4TH ST8:
"What's to stop some enterprising person from subscribing to paid versions of The Wall Street Journal and The New York Times and then posting mirror versions for free, just to further the public discussion of the issues of the day. Who would pay for something they can get free? Katy, bar the door, here come the infringers."
Pro remains one of my favorite judges. And although, according to his ruling, I'm just an "editorial" writer unworthy of the same creative protection as, say, Young Jeezy, the Thug Lordz, Dr. Seuss or an anatomically incorrect Barbie doll, allow me to opine that Pro missed both the "truth" and the "Truth" on this ruling by a wide margin.
And now, once again, I have said what I meant and meant what I said in another 19-paragraph "editorial." But to give me added copyright infringement protection, allow me to add: Word and fo' shizzle.
That'll do it, won't it judge? Oops, that's 20.
Sherman Frederick (sfrederick@reviewjournal.com), the former publisher of the Las Vegas Review-Journal and a member of the Nevada Newspaper Hall of Fame, writes a column for Stephens Media. Read his blog at www.lvrj.com/blogs/sherm.
