Blog by Richard Heagy
The hearings of the Committee on Legal Affairs, on recommendation of the Working Group on Copyright, take place in one of the EU’s modern cost-is-no-object buildings, with ceilings in the lobby so high that Michelangelo could never have painted murals on it unless he wore an oxygen mask and learned to levitate. The hearings today are being held in one of the smaller rooms of the cost-is-no-object building as not all members of the Committee on Legal Affairs are scheduled to be present.
Two members in long black robes with white wing collars are seated on a dais, three steps—not a mere one or two steps—above the floor in the small but well-appointed meeting room. Their shoes, no doubt expensive, are hidden from view by a long mahogany piece of furniture, similar to a long bench or credenza, which curves at an angle of 10 mm per 10 cm of length—the same as the maximum EU curvature rules allow for Class I cucumbers. The EU flag flies from a pole at either end of the dais.
Their serious faces cast an impression that they have been frozen in time, possibly waiting for Doctor Who to appear. Actually, they are waiting for the third member—the Chairman—to arrive before they begin. In front of the dais are several rows of chairs, divided by a wide aisle in the middle. An usher walks up and down the aisle, quietly offering peanuts or popcorn for three Euros; beer is 6 Euros. The members are not happy about this, but it was one of the conditions of the vendor for selling his shop and small piece of land to the EU.
A Page enters, dressed similar to the Swiss Guards at the Vatican, and blows a trumpet.
PAGE: All rise.
(Everyone stands as the CHAIRMAN enters. The PAGE walks to a small stand, pushes a button and the national anthem of the EU starts rolling. The CHAIRMAN puts both hands to his head in agony)
CHAIRMAN: Turn that thing off. I have an awful hangover…I mean headache. No offence to Schiller or Beethoven, but I do not need ‘Ode to Joy’ this morning, not after last night.
(The music stops. The CHAIRMAN takes his place the centre of the dais and the PAGE tells those in the audience to be seated)
VICE-CHAIRMAN: It looks more like a hangover.
CHAIRMAN: Last night I violated one of most important principles of civilisation.
VICE-CHAIRMAN: Which one?
CHAIRMAN: Never drink cheap wine.
VICE-CHAIRMAN: You drank cheap wine? I am appalled.
CHAIRMAN: It was not my fault. We had guests over last night and one of them brought a cheap bottle of wine, the name of which I would never utter in your presence.
VICE-CHAIRMAN: I certainly hope not, but why did you drink it?
CHAIRMAN: My wife opened the bottle, filled the glasses and passed them around before I could say anything. I had no choice.
VICE-CHAIRMAN: There is always a choice.
CHAIRMAN: Not when your brother-in-law brings the wine. Unfortunately, he is above even the slightest criticism in our house; I have to pretend to be nice to him when he visits.
VICE-CHAIRMAN: That must be difficult.
CHAIRMAN: Not really; I took several acting lessons some time ago.
(The PAGE departs and is replaced by the CLERK, dressed in a dark suit, much like a funeral director )
CHAIRMAN (to the CLERK): What is the first item on today’s agenda?
CLERK: There is a conflict between the recently introduced French Incivility Brigade and the rights of street artists, one in particular. That is all I know, being a lowly civil servant and not privy to the documents filed in this matter.
CHAIRMAN: Well, I have not seen them either. Are representatives here to represent all of the stakeholders who have an interest in this matter?
CLERK: Yes—the injured party and representatives of the French Incivility Brigade, Paris street artists, the French Patrolmen’s Association, and Professor Mockingbird, a copyright expert and author of Soft Sculpture and Copyright.
CHAIRMAN: Call the first witness.
CLERK: First witness, representing the French Incivility Brigade.
CHAIRMAN (to BRIGADE WITNESS): Can you explain what the French Incivility Brigade is?
BRIGADE WITNESS: Yes, Your Excellency.
CHAIRMAN: That sounds nice, but Your Chairmanship will do.
BRIGADE WITNESS: A little history, if I may?
CHAIRMAN: Be brief.
BRIGADE WITNESS: Of course. Several years ago Paris had a fleet of Motocrottes, but …
VICE-CHAIRMAN (interrupting): What is a Motocrotte?
BRIGADE WITNESS: A motorised pooper-scooper, used to pick up dog poop. They were expensive and later abandoned after it was determined that they were only collecting about 20% of the dog shit on the streets of Paris.
COMMITTEE AVOCAT: I got here on time to hear about dog shit in Paris?
BRIGADE WITNESS: There are more important issues involved.
COMMITTEE AVOCAT: I certainly hope so.
BRIGADE WITNESS: Paris has recently established an Incivility Brigade of about 2,000 security agents to hand out warnings and fines to those who commit antisocial behaviour. They will be uniformed and armed with teargas spray and wooden-handled truncheons.
COMMITTEE AVOCAT: So, they are going to deal with bank robbers, jewellery store heists and other serious crimes.
BRIGADE WITNESS: Not exactly. They are going to track down and punish men who urinate against walls in public, litter-bugs who toss cigarette butts on the street and dog owners who do not clean up after their dogs poop on the sidewalk.
VICE-CHAIRMAN: I do not understand how this involves the EU.
BRIGADE WITNESS: The legality of the Incivility Brigade has been challenged by certain street art groups and artists in Paris. Artists in other parts of Europe are likely to encounter similar problems.
VICE-CHAIRMAN: That is an odd one; I would have thought that the dog owners in Paris would be the ones against it.
BRIGADE WITNESS: There have been some demonstrations but no legal action… well, only one.
CHAIRMAN: Please explain, but be brief.
BRIGADE WITNESS: The Mayor was finishing lunch at his favourite outdoor café and an angry dog owner approached him and complained about the new Incivility Brigade. One of the Mayor’s aides stood and told the dog owner to leave or he would be arrested; then stamped his foot to scare off the dog, sat and asked for the bill. Unnoticed by the Mayor or his aide, the dog made a deposit under the Mayor’s chair before running off. After the bill was paid, the Mayor slipped in a pile of dog shit when he got up to leave. A nearby policeman was called to chase after the dog owner and arrest him.
CHAIRMAN: We need to move along. Who is next?
CLERK: The representative of the French Patrolmen’s Association.
CHAIRMAN (to ASSOCIATION WITNESS): Are you here in support of the Incivility Brigade?
ASSOCIATION WITNESS: Not at all. We are against them.
CHAIRMAN: Please explain.
ASSOCIATION WITNESS: We are all in favour of cleaning up crime in Paris, even cigarette butts.
CHAIRMAN: Not dog shit?
ASSOCIATION WITNESS: No. First, Parisians love their dogs and are extremely unhappy with the Incivility Brigade; they will express their anger at all law enforcement officers, including us. Second, it is easier to catch criminals engaged in street crime when they slip on dog shit. We have special non-skid boots, so it is not a problem for us.
CHAIRMAN: Thank you for your insight; you are excused. Is there someone here to represent the street artists?
STREET ARTIST WITNESS (standing): Right here.
CHAIRMAN: What do street artists have against the activities of the French Incivility Brigade?
STREET ARTIST WITNESS: Their enforcement actions will in some cases violate the protections of street artists under copyright laws.
CHAIRMAN: Such as?
STREET ARTIST WITNESS: The right to integrity—not to have your work altered, or the right to reproduce and sell your work—which disappears if your work is removed or destroyed by overzealous officers.
COMMITTEE AVOCAT: Have there been any cases of street art being removed or destroyed?
STREET ARTIST WITNESS: Yes. We brought a victim—the person who filed the initial complaint.
CHAIRMAN: Very well, next witness.
(The next witness is a dog owner, but not the one arrested by the Mayor)
DOG OWNER: I live in Paris in the 20th Arrondissement, where street art is encouraged, at least if it is on a wall.
COMMITTEE AVOCAT: Where is yours?
DOG OWNER: On the ground.
COMMITTEE AVOCAT: Be more specific—the sidewalk, the pavement?
DOG OWNER: On the sidewalk, but either would qualify for copyright protection. An idea or artistic expression, such as street art, requires basically no creativity, but it must be fixed in some tangible form to be protected under copyright laws.
VICE-CHAIRMAN: We all know the basic principles of copyright law. Why are you here?
DOG OWNER: Because the EU has been revising its rules to provide harmonization of copyright law throughout the 28 member nations. Criminal and copyright laws are in conflict in France; now it the time to sort this out and provide uniformity throughout the EU.
CHAIRMAN: Proceed, if you must.
DOG OWNER: The French Incivility Brigade destroyed one of my sculptures and gave me three fines.
CHAIRMAN: You are talking about street art, correct?
DOG OWNER: Yes. The first fine was for my dog pissing on a fire hydrant. I did not challenge that because the dog piss just went down into the gutter instead of creating anything in a fixed form. Next, my dog started walking away and the officer yelled at him. The poor thing was so scared that he made an extra big poop on the sidewalk. I lit a cigarette to calm down, looked at the poop and could not believe what I saw. It looked very much like a face, with an uncanny resemblance to the officer. I started laughing and stubbed out my cigarette. Then I stuck the butt in the dog shit just where the mouth should be.
COMMITTEE AVOCAT: I bet that went over well with the officer.
DOG OWNER: He gave me a fine for dog litter and another for the cigarette butt. When I refused to clean it up he shoved me with his truncheon and I stumbled onto the dog shit, destroying my street art.
VICE-CHAIRMAN: I believe that there is a case pending in the United States Court of Appeals for the 9th Circuit—Naruto vs Slater—which involves the question of whether or not an animal may be a copyright owner. If we adopted such a rule in the EU, your dog would own the copyright, not you, in the event that this particular dog poop constituted an artistic expression in fixed form. On the other hand, you might be the author of the dog poop face if you directed your dog where and when to shit, also taking into account your placement of the cigarette butt.
COMMITTEE AVOCAT: Let me interject. Depending on the consistency of the dog poop, it may be in fixed form only temporarily; and thus not entitled to copyright protection by anyone.
DOG OWNER: I would like Professor Mockingbird to testify on that point.
COMMITTEE AVOCAT: Professor, do you have a first name?
PROFESSOR MOCKINGBIRD: Yes, but I prefer not to say it.
COMMITTEE AVOCAT: I am afraid we need it for the record if you are going to testify.
PROFESSOR MOCKINGBIRD (in a soft voice): Elmo.
COMMITTEE AVOCAT: Professor, could you please speak up?
PROFESSOR MOCKINGBIRD (louder): Elmo.
(Everyone in the committee room starts laughing, until silenced by the CHAIRMAN)
COMMITTEE AVOCAT: I am sorry to hear that, but what are your qualifications?
PROFESSOR MOCKINGBIRD: I am the author of Soft Sculpture and Copyright, available in either French or English. If you would care to buy a copy, it is available online from Amazon and other booksellers. I am also a guest lecturer on the topic of street art at many universities throughout Europe.
COMMITTEE AVOCAT: My understanding is that for purposes of copyright law, a work is considered to be fixed when it is embodied in a tangible, stable and concrete form. Works that are transitory in nature are not protectable under copyright law as they are not fixed. Would you not agree with that, Professor?
PROFESSOR MOCKINGBIRD: Yes, as to dog piss, but not as to street art in the form of soft sculpture.
COMMITTEE AVOCAT: Would you care to define soft sculpture.
PROFESSOR MOCKINGBIRD: Street art is typically painted on a wall, on the side of a building or sometimes on the pavement. Soft sculpture is often attached to something, such as a building or a park bench, but can be placed on the ground or pavement. Although soft sculpture typically is made from rubber, latex or cloth, there is no reason why soft sculpture cannot consist of dog shit.
COMMITTEE AVOCAT: How can dog poop on the sidewalk be deemed to be in fixed form? It is transitory, ready to be swept away or washed away in the rain.
PROFESSOR MOCKINGBIRD: That is not necessarily so, especially in the non-rainy season. Once in fixed form, copyright attaches, even though the creation may subsequently be destroyed. For example, suppose I write a lecture on a piece of paper, read it to an audience and then destroy the paper; my copyright continues.
VICE-CHAIRMAN: Professor, are you sure that you want your lecture notes to be compared with a pile of dog shit?
PROFESSOR MOCKINGBIRD: Never mind.
CHAIRMAN: The EU has received more than enough criticism over the volume of its directives and regulations. We do not need to add dog shit to the list. Hearing adjourned.
CLERK: All rise. Watch your step when you leave the building.