Elvis Has Left the Internet...

by Keith Schengili-Roberts

Andrea Berman, founder of the Elvis Home Page, is one of the people in the middle of this clash of values. A technician in the space industry, she developed an Elvis Home Page that went up on the World Wide Web (WWW) this past summer. People with Mosaic or another WWW browser could contact the site and take the "Cyber-Graceland Tour," download Elvis software and listen to sound-clips from the "King." While she admits that she's not a major fan of Elvis, she thought the idea of an interactive visit with Elvis would be "something unique... that people would enjoy seeing." While on a tour to Graceland with her mother, the idea hit her "to do a virtual tour of the mansion and include all sorts of other goofy Elvis things as well. It all just seemed to me to lend itself to multimedia very well." It fast became a popular site, playing host to virtual tourists from around the world.

The Letter

That was until Ms. Berman got a letter from Manatt, Phelps & Phillips, lawyers for Elvis Presley Enterprises, Inc.. It was a fairly typical cease-and-desist letter, asking Ms. Berman to drop the "Cyber Graceland Tour" featured on her Home Page, along with the sound clips. Claiming copyright infringement, the letter threatened legal action if the pictures and sound-files were not immediately pulled from her Home Page. Not willing to be a martyr for the Internet, Andrea duly pulled the images the next day, and replaced the original Elvis Home Page with a note explaining what had happened.

While the matter is not likely to come to court, the issue of copyright on the Internet is not one that is going to go away. It is safe to say that almost everyone who has spent any time online has had access to or has downloaded copies of copyrighted material from either a BBS or from the Internet. The majority of the images and sound files found online are derived from copyrightable material. That Star Trek picture you use for Windows wallpaper, or that Bart Simpson sound file are copyrighted material. Copyright theft would seem to be another form of software piracy -- but is it?

Copyright & "Fair Use"

This is where several legal arguments come into play. One of these is the doctrine of "fair use." The "fair use" doctrine is well-defined in U.S. law, and while it is not established fully in Canadian jurisprudence, many of the ideas hold under Common Law principles. Under the right circumstances it allows people to copy and distribute material without permission of the copyright holder. Problem is, there is no clear cut line in determining what falls under the idea of "fair use."

One of the deciding factors includes the way and for what purpose the copyrighted material is used. Material used for commercial purposes tends not to fall under the idea of "fair use," but material used for non-profit or educational purposes may qualify. In the case of the Elvis Home Page, and of many other Internet sites carrying copyrighted material, no profit is being made by the people distributing the material.

A related factor is whether copyrighted material is being used for a new purpose, transforming the nature of the copyrighted content. Simply changing pictures or sounds to a computer-compatible format doesn't count, but if you incorporate the material in a new way, it may qualify. A "Cyber Tour" of Graceland, which transforms the copyrighted Elvis material by adding multimedia links, might count as part of an argument for a transformative use of the copyrighted material.

Another factor is the amount of a copyrighted work that is being used without permission. This rule is not always clear-cut. A case where musician Biz Markie digitally-sampled three words out of a song was considered an infringement of copyright, but people are allowed to copy entire movies on videocassette for personal use.

Internet Profitability Affected

But what may be the deciding factor in any case of this type is whether or not the use of copyrighted material will affect the potential market value of that material to the copyright-holder. If Elvis Presley Enterprises ever wants to do its own "Cyber Tour of Graceland," and do so for their direct (or indirect) profit, Ms. Berman's own Cyber Tour, using copyrighted materials, would clearly be infringing their copyright. The fact that this has not occurred does not matter, as this factor looks at potential, rather than actual, profits that can be had from copyrighted material. As commercial ventures begin to move onto the Internet, this is becoming more of a possibility.

A good example of this is The Rolling Stones' official Home Page, (http://www.stones.com/), that contains pictures, video, text and sound files from the rock group. While it easy to copy and download information from this site, creating your own Home Page using this material would certainly be infringing copyright. More recently, Aerosmith did their own "Cyberspace Tour," conversing with people on several online services. Money accrued from the connect charges to these services, along with profits from the sale of T-shirts promoting the tour, benefited the Electronic Frontier Foundation (EFF) -- a civil liberties organization dedicated to advancing online free speech in the States.

Commerce, the Law and the 'Net

As more and more commercial sites venture onto the Internet, it is safe to say that more firms will enforce their copyrights, as has Elvis Presley Enterprises. But this may eventually lead to a collision between the emerging corporate identity of the Internet and current online culture. Online culture has grown up with the principle that "information wants to be free" and copyright principles have fallen by the wayside as a result. When the Internet was made up primarily of a collection of elite computer geeks, it was not in anybody's interests to enforce copyright on the Internet. Now that having an Internet address is becoming more common, enforcing the law on the 'Net is not only more likely, it is an inevitability. A clash is coming, one that will likely redefine the nature of the Internet and online culture. While headlines are grabbed by stories of pornography and racist material on the Internet, the rise of corporate culture and the enforcement of copyright will likely produce more change.

Meanwhile, Andrea Berman receives about one e-mail message an hour in support of her situation from people around the world. She has not received a single negative response on the topic, and people want to see a return of the Cyber Graceland Tour. What's the likely future of the Elvis Home Page? Ms. Berman hopes to restore the Elvis Home Page to something like its former glory . She says she intends to "start collecting photographs that people have taken that may be acceptable replacements for the copyrighted images." She has had offers from many people to digitally scan in their own photographs and send them to her for that purpose.

Elvis has left the Internet.... There is no doubt that he will return for an encore, but the Internet is no longer the same as when he left it.