Sunday 2 March 2014

The CopyKat: Google appeal the Innocence of The Muslims decision, fearing ongoing ramifications

The Dutch anti-piracy group, BREIN, has said that it will take its web-blocking efforts to the Supreme Court in the Netherlands, after the country's High Court overturned earlier blocks instigated against The Pirate Bay in 2012 - calling the blocks "ineffectual", the court also stated that the blockades "constitute an infringement of [people's] freedom to act at their discretion in an appeal brought by ISPs Ziggo and XS4All.

A member of U.S. Congress has introduced legislation aimed at ensuring that the Copyright Royalty Board also consider fair market value when setting songwriter mechanical royalty rates for digital services. The legislation was introduced by Rep. Doug Collins (R-GA), a member of the House Committee on the Judiciary, carrying the name the Songwriter Equity Act. It's purpose is to update provisions in sections 114 and 115 of the Copyright Act to level the playing field for songwriter, composers and publishers to receive fair compensation for the use of their intellectual property - and move towards parity with payments for the use of sound recording. More on Billboard here

Actor Hank Azaria has won a legal battle with Cinderella Man star Craig Bierko over a comical sports announcer they both insisted they had created. Azaria's character Jim Brockmire, a brash baseball anouncer, was portrayed by Azaria in the hugely successful video which was a viral hit. Azaria claimed he created the Brockmire character as a party piece in the mid-1980s and only became aware of Bierko's similar creation when they met at a party through mutual friend Matthew Perry. In his ruling U.S. District Judge Gary Feess stated that Azaria had created character attributes and clothing, while Bierko's announcer was "extremely vague". Judge Feess added: "Defendant has offered no description of him other than that he is 'a white, male baseball announcer,' who expresses himself in a 'uniquely American and arguably musical' fashion." The judge also dismissed Bierko's claim that he and Azaria had an implied contract following a 1997 discussion, during which Azaria was told he couldn't use the character. 

one of the offending pendants - with attitude
Rapper Drake's efforts to have a lawsuit against him for producing copies of an owl pendant designed for him by claimants, the jeweller Baden Baden, dismissed have failed after an oral hearing. The motion to dismiss was based on the assertion that Baden Baden couldn't copyright the design because its source was in the public domain - namely, the Egyptian hieroglyph for the letter M, which dates back 5,000 years. Drake's lawyer also argued in the filing that Baden Baden offered no more proof of infringement than screenshots of other people wearing owl pendants without any evidence that Drake created or sold the alleged infringing pendants.  

President Obama has nominated Robert Holleyman as deputy US Trade Representative  - Holleyman was previously head of the Business Software Alliance (BSA) - a background which has raised some concerns , not least as the Trans Pacific Partnership Treaty remains under negotiation.  The TPP, the ambitious 12-nation free trade plan, recently hit a new roadblock after four days of negotiations in Singapore.

Cindy Lee Garcia: A still from YouTube before the take down
Whilst tonight's Oscars have grabbed almost all of the Hollywood headlines, there was an interesting and important copyright related news story after actress Cindy Lee Garcia persuaded the U.S. 9th Circuit Court of Appeals that she had rights to her performance in the 13-minute trailer for "Innocence of Muslims" which has been called "a crude piece of anti-Islamic agit-prop" and which has triggered Muslim outrage across the Middle East and northern Africa. One Egyptian cleric issued a fatwa calling for the death of every actor in it, and Garcia has received death threats. Garcia's victory prompted the Google owned YouTube to remove the trailer from YouTube but not without protest. In a ruling released this week, Chief Judge Alex Kozinski declared for a split three-judge panel that Garcia held a copyright in her performance despite appearing in only five seconds of the trailer, writing none of her own lines and even having part of her dialogue overdubbed by someone else meaning she can limit where her work will be publicly performed, and the court further agreed that America's First Amendment does not apply to copyright infringement cases.  The dissenting judge in the case, N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "An actor's performance, when fixed, is copyrightable if it evinces 'some minimal degree of creativity ... no matter how crude, humble or obvious it might be" adding  "That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all." Judge Kozinski did qualify the ruling adding that most actors and actresses would have given their (implied) consent to be filmed and for their performance to be used when they join a cast but not here: in this case Garcia had been hired  under false pretences. Writer and producer Mark Basseley Youssef had told the actress the part was in a desert adventure - called "Desert Warrior" and this untruth voided any implied licence. Corryne McSherry from the Electronic Frontier Foundation commented "Garcia is claiming a copyright interest in her brief performance, a novel theory and one that doesn't work well here. After all, Garcia herself admits she had no creative control over the movie, but simply performed the lines given to her. There may be a context where an actor could assert some species of authorship, but this doesn't seem to be one of them. Moviemakers of all kinds should be worried indeed." On Thursday Google filed an emergency motion that would allow it to keep the video available until a final decision is made on the copyright issue saying "Under the panel's rule, minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright claim".

And finally, the Guardian reports that artist, comedian and writer Miriam Elia is facing the potential of a copyright action from Penguin after she self published here own version of a 'Ladybird' Book - exploring modern art where the traditional characters of Mummy, Peter and Jane grapple with Tracey Emin-style conceptual art. One page, 'God Is Dead', depicts an empty room, in which Mummy introduces the children to a severe form of Nietzschean nihilism,  whilst  another page pokes fun at the giant inflatable animals that the artist and former Wall Street commodities broker Jeff Koons is famous for.  It seems that Penguin haven't been too heavy handed though - and  whilst We Go to the Gallery contains collages made from scenes cut from old Ladybird books, it also contains the artist's own work, and the company has told Elia that it would allow her one month to sell enough books to cover her costs, but any more have to be destroyed. Penguin contacted Elia last month to complain: "It was a bit of a shock. I never really thought about copyright," she said. "Artists just respond to the world in your little room and you're not thinking about much else. You just think: 'Oh, this will be great!". She stressed that Penguin has been sympathetic and has been open to negotiation, but ultimately would not back down on what it saw as infringement of its copyright. It's interesting to consider what difference will the new UK planned exception for parody and pastiche will add to this scenario - from this blogger's perspective certainly an arguable defence.


Andy J said...

Re The Google/Youtube motion for a stay in the order against hosting the video, the Hollywood Reporter says in a footnote that the court refused the stay against the takedown order, but said if Garcia's 5 second performance was removed, the rest of the video could be re-hosted on Youtube.

Ben said...

Thanks Andy - the newswires had this:

"Google has been allowed by a court to keep a controversial film trailer that mocks the Prophet Muhammad on YouTube, but the video has to be scrubbed to remove the performance of actress Cindy Lee Garcia, who claims infringement of her copyright.

The U.S. Court of Appeals for the Ninth Circuit upheld its earlier order, asking Google to take down and prevent new uploads of the trailer, but did not preclude the posting or display of any version of 'Innocence of Muslims' that does not include Garcia's performance."

More here

Ben said...

A very interesting update (courtesy of Amanda Harcourt - thank you!) can be found here

Amalyah Keshet said...

Interesting chapter in the fascinating Penguin Ladybird story:

So the publisher punishes the artist for appropriation, and then appropriates her idea and runs with it. Nice plot twist.