1709 Blog: for all the copyright community

Wednesday, 1 July 2015

Box office receipts and the PRS tariff: consultation period extended

Another media release that slipped this blogger's attention when it arrived is a joint statement by PRS for Music and the Concert Promoters’ Association, headed "PRS for Music to extend consultation on Tariff LP". The release concerned
" ... an extension on the consultation period for Tariff LP which is applied to ticketed live popular music events such as concerts and festivals. Originally Monday, 8 June 2015, the deadline for responses is now 30 September 2015.

The extension has been granted following the Concert Promoters’ Association’s (CPA) stated interest in conducting its own research in response to PRS for Music’s consultation documentation which was announced on April 13. The extension will allow the CPA and other industry groups to respond comprehensively to the consultation. PRS for Music welcomes the industry-wide commitment to engaging in this process. The CPA represents 45 members and 14 associate members that are active promoters of live music concerts, concert tours, events and festivals.

The extension is also supported by the following industry bodies in the live sector: Association of Independent Festivals, Association of Festival Organisers, British Association of Concert Halls, Music Venues Trust, National Arenas Association, National Open Air Events Association, Society of London Theatre/UK Theatre, Night Time Industry Association and The Event Services Association/Event Industry Forum.

The aim of the consultation is to conduct a comprehensive review across the live music industry to ensure that PRS for Music operates an appropriate tariff for its customers and members.
This tariff is applied to ticketed live popular music events such as concerts and festivals performing songs composed by PRS for Music songwriters and composers. The tariff was originally set in 1988 and works out at 3% of gross box office receipts per event. A separate tariff, Tariff LC, which applies to live classical music concerts, is not within the scope of this consultation.

Further details can be accessed from the PRS website here.

The CopyKat - easy on a Wednesday

It takes quite a number of hands to create a motion picture - camera operators, set designers, lighting directors, the director and the cinematographer to name but a few. Quick on the heels of the en banc decision by the majority of the 9th Circuit in the 'Innocence of the Muslims' case which held on further appeal that the contribution of an actor cannot be copyrightable because "defining a 'work' based upon 'some minimal level of creativity or originality' ... would be too broad and indeterminate to be useful",  the 2nd Circuit Court of Appeals has now ruled that individual contributions can't be recognized as works of authorship insofar as becoming independently copyrightable. The opinion from Circuit Judge Robert Sack on 'Heads Up' director Alex Merkin's claim says "We have never decided whether an individualʹs non‐de minimis creative contributions to a work in which copyright protection subsists, such as a film, fall within the subject matter of copyright, when the contributions are inseparable from the work and the individual is neither the sole nor a joint author of the work and is not a party to a work‐for‐hire arrangement," he writes. "We answer that question in the negative on the facts of the present case, finding that the Copyright Actʹs terms, structure, and history support the conclusion that Merkinʹs contributions to the film do not themselves constitute a 'work of authorship' amenable to copyright protection." More here.

The Supreme Court has declined to hear the case between Oracle v. Google, sending the long-running case back to a lower court where Google will have to argue that it made fair use of Oracle's copyrighted APIs. A ruling in favour of Oracle could give some technology firms "unprecedented and dangerous power" over developers by making it substantially more difficult for upstarts to create new software according to the Electronic Frontier Foundation says - unless of course fair use laws so turn out to protect the use of APIs.

Jacobus Rentmeester has failed in his claims of (i) copyright infringement; (ii) vicarious copyright infringement; (iii) contributory copyright infringement; and (iv) a breach of the Digital Millennium Copyright Act (DMCA) against Nike, which stem from his iconic picture
of basketball star Michael Jordan in his Olympic warm-ups in 1984 for an issue of Life Magazine. The case is Rentmeester  v Nike Inc., (No.3 : 15-cv-00113-MO). In his decision, District Judge Mosman granted Nike Inc.’s motion to dismiss Rentmeester’s claims - all of the details on the IPKat here.

Torrentfreak reports that a court in Nanterre in France has ruled that a magazine publisher violated French copyright law by running an article offering some top tips on how to access illegal sources of music and movie content online, including the 'low down' on the best torrent clients, and guidance that Google is the pirate's friends because "with some clever keywords and in a handful of clicks you will fill your hard drives with joy and laughter". The publisher of  computer magazine Téléchargement was fined 10,000. Torrentfreak say that under French law it’s forbidden to “knowingly encourage” the use of software that’s clearly meant to infringe copyrights, with a maximum prison sentence of three years and a €300,000 fine. (I am sure the FrenchKat an correct me if this is wrong!).  SCPP took action after the magazine's cover featured a pirate skull and advertised “the best software and websites to download for free.”

And finally, LA-based domain registrar Namecheap has been ordered to hand over the personal details of one of its customers, a person suspected of being involved in the ongoing attempts to keep Grooveshark - or at least a music service using that name - online. The action was brought by the Recording Industry Association of America (RIAA).

Online-only art auctions: more bad news for artists?

In "Goodman and de Pury launch web-only auctions with promises to keep down fees", Roland Arkell, in the Antiques Trade Gazette, here, describes a new business model which has some repercussions for copyright too. The article explains that
"[t]wo senior members of the international auctioneering profession launch separate online-only ventures this week. Tim Goodman and Simon de Pury are embracing the digital revolution, looking to challenge a centuries-old business model with a footloose approach to selling art and antiques at auction. Goodman's Fine Art Bourse (FAB) hopes to gain traction in the market via an innovative pricing model. Meanwhile de Pury's eponymously titled firm is promising to reduce buyer's fees to 15%.

The headline statistic at FAB is that they will charge vendor's and buyer's fees of just 5% with a 72-hour packing and shipping service - so often a barrier to entry for bidding online - 'free' for both buyers and sellers. They add that transaction charges will be exempt of sales taxes or artist resale royalties, as sales are processed through headquarters in Hong Kong  ..."
It's not just the avoidance of artists' resale rights that will be of interest to copyright-sensitive readers. The production of glossy art auction catalogues provides an opportunity for the artist to charge for the reproduction of his or her work -- but if a web-only auction means web-only marketing, those deliciously desirable must-have catalogues, which have value as reference works in their own right and are held by art libraries for such purposes, may also be a thing of the past, replaced by a screenful of thumbnail images, perhaps.

Thanks go to John Walker for drawing my attention to this development.

Tuesday, 30 June 2015

Sirius settles pre-1972 sound recordings claim in USA

US satellite broadcaster Sirius XM has reached a settlement with all three major record labels  over the long-rumbling pre-1972 copyright dispute in the US, which has been highlighted in the actions brought by Flo & Eddie of the band the Turtles in New York, California and Florida. The recording Industry Associatoin of America (RIAA) claim settlement also includes ABKCO – the owner of classic Rolling Stones copyrights – and the claimants (Capitol Records LLC, Sony Music Entertainment, UMG Recordings Inc, Warner Music Group and ABKCO) have jointly been awarded $210m as part of a settlement with Sirius. In a statement, Sirius said: “The settlement resolves all past claims as to our use of pre-1972 recordings owned or controlled by the plaintiffs and enables us, without any additional payment, to reproduce, perform and broadcast such recordings in the United States through December 31, 2017. As part of the settlement, we have the right, to be exercised before December 31, 2017, to enter into a license with each plaintiff to reproduce, perform and broadcast its pre-1972 recordings from January 1, 2018 through December 31, 2022.” That license should ensure that the majors, at least, are compensated for the performances of pre-1972 copyrights on Sirius in the States within the five year period. Sirius said: “The royalty rate for each such license will be determined by negotiation or, if the parties are unable to agree, binding arbitration.”

Michael Huppe, chief executive officer and president of the sound recording rights collection society SoundExchange said: “While it unfortunately required a lawsuit to make SiriusXM do the right thing, we are pleased that these legacy artists are finally getting the respect – and compensation – they deserve for the use of their music.

Welcoming the settlement, the head of the labels trade body in the USA, the RIAA, Cary Sherman, told reporters: "This is a great step forward for all music creators. Music has tremendous value, whether it was made in 1970 or 2015. We hope others take note of this important agreement and follow Sirius XM's example" - the 'others' no doubt a pointed reference to rival service Pandora. Flo & Eddie's litigation is ongoing, and it now has class action status meaning artists and labels not covered by the RIAA's deal will benefit if the duo ultimately prevail.

Sirius said that, between them, Universal, Sony, Warner and ABKCO control “approximately 80% of the pre-1972 recordings we have historically used”.


When claimants stand up for copyright, defendants can get sent down

Phonographic Performance Limited v Fletcher is an extempore ruling by Mr Justice Arnold, sitting in the Chancery Division, England and Wales, last Monday; being extempore it isn't available on BAILII but it was noted in brief on the subscription-only Lawtel service. It's one of those rulings that reflects on the sad end which some defendants face when they just keep carrying on infringing, ignoring every cue to stop.

In these proceedings Phonographic Performance Limited (PPL), a UK music licensing company, applied to commit Fletcher for contempt of court, following his breach of an order prohibiting him from playing sound recordings without a licence at a nightclub. Fletcher himself was the premises licence holder of a night club. Despite PPL's warning, Fletcher did not take out a licence to play music the rights to which were administered by it.  PPL then applied for judgment in default for copyright infringement, securing an injunction that ordered Fletcher not to play PPL's songs in public without a licence. At this point Fletcher agreed to pay the outstanding licence fees by monthly instalments -- but then he defaulted on payment. Subsequently allowed to make weekly instalments, he paid them late. PPL even reduced the weekly amount that Fletcher had to pay, but he still only made sporadic payments. An investigating agent for PPL then discovered that Fletcher was still playing its recordings at the nightclub, in breach of the injunction. Fletcher conceded that he was indeed in breach of the order. But what was to happen to him?

Fletcher said that he had had cancer and was suffering from anxiety and depression, and that his mother had recently died. Further, that the basis of the contempt application was solely that he had played the music in public on one single date, and that it was not a repeated and prolonged contempt. PPL was not particularly sympathetic, submitting that there had been a long history of failures by Fletcher, and that it was also entitled to damages in respect of his copyright infringement.

Arnold J granted PPL's application to commit Fletcher for contempt. In his view:

* even taking Fletcher's pleas in mitigation into account, PPL's evidence established not merely a single breach but a sorry history of failure by Fletcher -- first to obtain a licence and then to adhere to payment for the licence fee. That had to be taken into account.

* the contempt committed could only have been deliberate. Although this was a first offence and a single allegation, the threshold for imposition of a custodial sentence had been crossed, though an immediate one was not appropriate.

* Fletcher would be sentenced to 28 days' imprisonment, suspended for 12 months, on condition that he stopped infringing PPL's copyright.

* where infringement was established to the standard required to support an application to commit for breach of an injunction, there was no arguable defence to the copyright infringement claim and the court could order damages.

* under the Copyright, Designs and Patents Act 1988 s.97 the court could summarily assess damages and, on this basis, PPL would be awarded the outstanding sums due to it for licence fees up to the date of the contempt of court application. PPL was also awarded a further £6,000 in damages and interest, and Fletcher would have to pay the costs of PPL's application on an indemnity basis.

It's not just sad that people help themselves to other people's copyright for income-generating activities such as running night-clubs; it's close to tragic that they inflict further cost and liability upon themselves, at their own expense and to no discernible end, when all that was needed was the payment of a licence fee in the first place. It would be good to understand what causes such self-destructive impulses in the hope that a better way might be found of dealing with them.

Monday, 29 June 2015

CLA launches new Second Extract Permissions Service

A couple of weeks ago this blogger received a media release that somehow slipped to the bottom to his pile of unattended emails and remained there till he found it again today. The title "CLA launches new time-saving permissions service for universities: New Second Extract Permissions Service available now" pretty well gives the game away. Anyway, the release reads, in relevant part, as follows:
CLA (The Copyright Licensing Agency [in the UK]) is launching a new service to allow universities to buy rights instantly online. This is the first time that universities have been able to purchase additional rights from CLA immediately and it is expected to save them thousands of hours each year on administration.

The new ‘Second Extract Permissions Service’ enables universities to buy rights instantly when they need to copy more than is allowed under the CLA Higher Education Licence.

A university with the licence can currently copy a limited extract from a published work - for example a single chapter or 5% of the whole text. Until now, if a university wanted to use more content they would contact the publisher or another agent to purchase permission, which can be a time-consuming process. The new Second Extract Permissions Service will speed up the process and reduce administration costs.

Over 100 major publishers are signed up to the service - representing the majority of the millions of pages copied each year in higher education.
Some universities are using a beta version but all are invited to pre-register now online ahead of an August rollout at http://he.cla.co.uk/second-extract.

This blogger has taken a brief look at the service and would be interested to hear from those who are either expecting to use it or to derive income from it. His favourite bit is the line that reads "the service is optional and there is no charge if you don’t use it".

CopyCamp 2015 calls for papers

The 1709 Blog has learned that the Modern Poland Foundation has launched an Open Call for Speakers for the Fourth International CopyCamp Conference taking place on 4 November 2015 in Warsaw. If you are not familiar with CopyCamp (which has featured in earlier 1709 Blog posts here), let the organisers explain:
Good news for campers: the rain doesn't last
as long as the period of copyright
protection for authors' works ...
The International CopyCamp Conference is the first Central-and-Eastern European annual event to undertake a multi-sided, balanced and unrestrained discussion on the social impacts of copyright. Every year representatives of cultural institutions and private sector, administration and the media, artists, activists, politicians and academics meet in Warsaw to discuss the influence of copyright law on the circulation of cultural goods, new business models for authors' remuneration, use of technologies in social activism, importance of copyright in the context of human rights, modern education, innovation. The fourth edition of the conference will present an opportunity to continue the dynamic debate characterized by high standards of communication and openness to the input from all interested parties in a neutral and friendly conference space encouraging participants from all over the world to network and share ideas.

We are happy to announce that our special guest this year will be Lev Manovich, theoretician and critic of new media, visual artist, professor at City University of New York and founder of the Software Studies Initiative, author of The Language of New Media.
Presentation proposals must be submitted in the form of an abstract of no more than 1,800 characters under one of the enlisted thematic tracks that characterize this year’s conference:
  • CopyArt
  • Models of Remuneration
  • Copyright and Education
  • Technology and Innovation
  • Copyright and Human Rights
  • Technologies in social activism
  • Copyright Enforcement
  • Future of Copyright
  • Copyright Debate
If you want to speak, click here. Your presentation should not exceed 10 minutes. The Open Call deadline expires on 20 July 2015.

For more information, click here or contact the CopyCamp Coordinator Marta Skotnicka by email here.

Saturday, 27 June 2015

Sometimes It is Hard to Love Fair Use…

There has been a lot of talk lately about the use of photographs to create derivate works. Andy recently wrote on this blog about the new Richard Prince exhibition, New Portraits, which presents ink-jet prints of photographs posted on Instagram by third parties, complete with Richard Prince’s own comments under the original posts. Asim wrote about a recent French case, where the Cour de cassation found that the right of expression of an artist who had used fashion photographs to create several paintings trumped the copyright of the fashion photographer, citing article 10 of the European Convention on Human Rights (ECHR).
I read this week an i-D article about the use of a photograph created by Tayler Smith and Arabelle Sicardi, representing trans model Hari Nef. This photograph, Hari Nef, was presented last year in New York City as part of the Most Important Ugly exhibition, which featured 13 portraits of individuals wearing stunning makeup. As Tayler Smith explained on her blog, she asked each subject a series of questions “about shame, safety, power, family and beauty” and so the exhibition was a carefully executed project, not a mere point-and-click show.
These two artists recently learned about the use of their photographic work after friends saw an article in The New Yorker about an exhibition by Yale’s M.F.A. students, which featured some of their works presented, at the Danziger Gallery in New York City until today. One of works presented by the M.F.A. students is Cheeks, which is credited online as a “Photograph by Zak Arctander.” Arctander used a black and white print of the color photograph Hari Nef, tore parts of it and painted red and blue strands of colors across the photograph, then printed the result on vinyl. So is it not a “photograph” but a derivative work of art. The title of the work refers to the gesture made by Hari Nef in the Smith and Sicardi original work, pulling her cheeks out while smiling at the camera. The original authors of the photograph were not credited in The New Yorker article or on the Danziger Gallery website.
Photograph by Zak Arctander. Source:  The  New  Yorker
Is this Fair Use?

It seems that Arctander did not ask permission to use Hari Nef to create Cheeks. Therefore, the use could be copyright infringement, unless it is considered to be fair use. The use is probably transformative enough to be fair use, as it does not merely supersede the original work, but adds something new to it, as explained by the Supreme Court in Campbell v. Acuff-Rose Music., Inc. However, the fair use defense is a question of both facts and law, and courts consider four factors to determine whether a particular unauthorized use is fair. But this debate must take place in a court of law, and no cease-and-desist letter has been sent, and no copyright infringement suit has been filed. Hiring an attorney is a serious financial obstacle for many artists, and litigation is long and costly. They may also choose not to pursue it. Therefore, the discussion of whether a particular use of an original art piece to create a derivative work is indeed fair is often left to commentators. One can regret this, and hope that the Congress will eventually create small claims copyright courts, which could serve as a venue for all the artists to discuss the fairness of a particular use.
Droit Moral
Tayler Smith wrote a passionate blog post about the whole story, where she lamented the use of female art by male artists. Arabelle Sicardi tweeted on June 18: “my art of @harinef i made w @NotTaylerSmith was stolen by a male artist and then featured in @NewYorker DOES THIS MEAN IM A REAL ARTIST NOW.  I believe she and Smith indeed are, but that is not the point here. However, without having to discuss whether this is indeed a case where a male artist used women’s art to his own advantage, it appears that both Smith and Sicardi see this instance as such. Therefore, it could be argued that their droit moral has been violated.
However, the U.S. recognizes only a very limited droit moral. The Visual Artists Rights Act (VARA), 17 U.S.C. §106A gives the author of a work of visual art a right to attribution. Hari Nef is indeed a work of visual art under VARA as it is “a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.” The moral rights provided by VARA to authors include the right to claim authorship of the work, and also “the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.” While Hari Nef has been modified, it does not appear that such modification is prejudicial to the authors of the work. However, they could still claim under VARA their right to be credited as the authors of the original work.

Right of Publicity and Freedom of Speech
The subject of the photograph is Hari Nef, a trans model. Could she file a right of publicity suit?
The Yale MFA show is on view now in New York City, in a state which has a statutory right to publicity, N.Y. Civil Rights Laws §§ 50 and 51. However, courts in the Second Circuit also consider the First Amendment rights of the author of the derivative work. In Hoepker v. Kruger, the SDNY found in 2002 that the right to publicity of a woman, the subject of a photograph taken by Thomas Hoepker in 1960 to create his Charlotte as Seen By Thomas image, had not been infringed by Barbara Kruger who used the photograph thirty years later to create a silkscreen collage. This reasoning could also probably apply to Richard Prince’s New Portraits, would a subject of the Instagram photographs file a right to publicity suit.
Privacy in One’s Image Does not Always Trump Freedom of Speech in France
The right in the privacy of one’s image must also defer to freedom of speech in France. The case Asim wrote about did not deal with right of publicity issues, but, for the sake of this discussion, let’s imagine that the fashion model in the photograph had filed suit, claiming that using her likeness to create a work of art infringed on her right in the privacy of her image (droit à l’image) This claim would probably not have been successful, as the Cour de cassation recently held, in another case, that the right to freedom of expression and of information, protected by article 10 of the ECHR, trumps the droit à l’image of a writer. In this case, a man, known in France for his extreme-right views, had been interviewed by a television crew making a documentary about the anti-Semitic Protocol of the Elders Sion book and how some Holocaust negationists are still presenting it as an authentic document. The crew had signed an agreement with the man interviewed, giving him a right to view the documentary before its broadcast. However, the documentary was shown on television without him being able to see it first. He claimed an infringement of his droit à l’image, but the Cour de cassation ultimately found that as he had participated in the public debate about the book, his image could be legally used in the documentary, even though he had not been able to watch it beforehand.
So there is not much to be done from a legal point of view. However, the authors of the original photograph have been hurt, and Anabelle Sicardi wrote about the rage she and Tayler Smith felt when discovering the unaccredited use. VARA gives them the right to have their work credited. A court may find the use of their work to be fair use, or not, but the debate may not take place in court of law, maybe because of financial considerations. There is a need to find a balance between the rights of all of the artists, including, of course, the right to create derivative work. How could this be best achieved?