TV SHOWS STEALING FROM BLOGS, AND OTHER INTERNET WONDERS

Finger Paints, kiddie clay and a gold star.

Let’s do a little Internet forensics. Those items appear as evidence in a murder case in a 2008 episode of CSI:NY, which centers around an underground prep school party where teens regress to childhood with the help of a club drug. They may, Gary Sinise’s astute detective astutely points out in the episode, “be found in a kindergarten class or a toy store.”

But they would also be found in Teddy Wayne’s 2007 satirical article at Radar about an underground prep school party where teens regress to childhood with the help of a club drug. Wayne’s piece wasn’t optioned; no one asked him if they could use it in their million-dollar TV show. He discovered the similarities when someone pointed them out to him.

The story was clearly copied, a CBS attorney implicitly acknowledged later in a response to Wayne. CBS’s defense: it was not clear the story was an April Fool’s joke (as revealed two weeks after its online publication), and the piece looked to the show’s writers like a news story with facts that are “in the public domain and may be repeated or incorporated into other works without permission.” Besides, she wrote, even though both articles mention the (fictional) drug foxy and games of Ring-Around-the-Rosie, these were just “random similarities.” We think that’s legalese for coincidences, or bullshit.

Ripping from the headlines is one thing; stealing from a uniquely reported news article like “Sindergarten” is quite another, Wayne points out in telling his psychic and sort-of-legal saga at the Awl today. But his wasn’t a news story: it was a work of short fiction whose “facts” sprung from the brain of Wayne.

Oh, but but but this wasn’t theft, Mr. Wayne: “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,” the lawyer wrote, in an ornately-argued five-page letter. Plus, “the Episode's tone is dark, and it clearly does not end as optimistically as the Article… the Article serves as a piece of social commentary,” while the episode doesn’t. “By that rationale,” Wayne writes, "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!)."

Idea theft happens on the Internet as fast as a high school student can press Apple-C and Apple-V, but students aren’t the only ones doing it: the trove of free, easy-to-access ideas that TV producers (or journalists or college professors or speechwriters) can pull from in their desperate, lazy moments, has never been larger. So too then, has it never been easier to conceal such theft. Increasingly fragmentary cultural production (TV, cable, internet, books, film, web video, Tweets, Facebook) arguably makes it harder, not easier, for people to spot theft. Who knows how many plot lines of Two and a Half Men were stolen from the Motherboard Twitter feed?

But Wayne isn’t just making a roundabout argument about the risk of copyright infringement online, but the perils of being a freelancer with little control over personal intellectual property. See, the story gets more interesting when Wayne aims for some kind of compensation from CBS: because he signed a freelancer contract giving Radar the rights to his story, the magazine-cum-gossip-site gets to decide whether to pursue legal action, and/or how much money Wayne would be entitled to.

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.

The morals here aren’t confined to “freelancers,” those ragged, slouchers that fill into the sort of Brooklyn party where Wayne recounted the story to me last weekend, launching us on a free-wheeling discussion about Life With Internet. It applies to anyone who has accepted that little thing known as Facebook’s terms of service:

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.

That is, Facebook has the right to do practically whatever it feels like doing with your photos, updates, profile data. That’s especially important to remember as sites like Facebook rapidly usurp the role that the personal blog once played. As Jaron Lanier points out, Facebook and other sites are making their profits off of all of our content. Sure, we get paid in free use of their sites, but is that a good deal? How does that arrangement not disincentivize cultural producers, like writers or filmmakers, from producing quality content? (See the Facebook Motherboard)

Wayne, who published Kapitoil last year, isn’t expecting any more convoluted legal letters or even a response from CBS. But he asks the network to make a $20,000 charitable donation to a selection of non-profits, like 826 National. He stopped short of asking them to stop airing “CSI: NY” entirely.

Lesson: if you’re a freelancer, ask for copyright ownership. Always be ready for absurd legal loopholes and arguments. And, I guess, watch network TV more often. (Sorry.)