1709 Blog: for all the copyright community

Monday, 11 August 2014

The CopyKat goes ape

In its submission to the US Department Of Justice's review of collective licensing in America, music collecting society BMI has said that it believes that music publishers should be allowed to choose which rights they allow it to administer.  It also says that BMI should be able to represent all rights in a musical work, including the mechanical right, not just the performing right, in order to create a "one-stop" licensing option and wats to see a new way for royalty rate disputes to be resolved. Just twenty four hours later the other big US song collection society ASCAP echoed those proposals, saying that allowing its members to pick and choose which specific performing rights it handed over to the collecting society to administer was "necessary to hold the system together". It also argued that being able to license mechanical as well as performing rights is "something that ASCAP's competitors are already free to do".

The BBC reports that the City of London Police's IP crime unit (PIPCU), which has been targetting web-block circumventing proxies, have now forced a number of these proxies offline and that one man has reportedly been arrested in connection with running a proxy server.

Sofie Gråbøl in The Killing
Sarah Lund, the star of the Scandanavian hot TV detective series The Killing, did an awful lot to promote chunky jumpers - the sweaters worn by actress Sofie Gråbøl became almost as famous as the cast of the Danish drama and Gråbøl admitted that her character had become dependent on her jumper and plans to scrap the woollen bound image were themselves scrapped by TV bosses. The show also prompted huge demand for the distinctive design - and now a lawsuit. The Faroese designers of Lund's original sweater, Gudrun & Gudrun, took legal action against Danish company Stof og Sy, which had made a considerably less expensive version of the "Lund" sweater - albeit one you had to knit yourself - retailing at 372 kroner (£40) rather than 2,887.50 kroner (£310) for a Gudrun sweater. But the claim for copyright infringement has failed - with a Horsens court in Denmark deciding that Stof og Sy can continue selling jumpers that resemble those from the acclaimed television series after Stof og Sy convinced the court that the star pattern used on the Lund jumper is an ancient and traditional Faroe Isles pattern - and the design of the jumper itself is based on the Faroese fisherman's sweater - both and hundreds of years old - so no violation of any copyright (or marketing laws) had taken place. More here and here

The Nigerian Copyright Commission (NCC) said it had seized pirated books, worth over N10 million, after a raid of markets and book shops, the Mile I Market and His Grace Bible House, Rumuowuta, all in Port Harcourt. The Commission disclosed that it has impounded 19 containers, suspected to be loaded with pirated books, at seaports and borders across the country. 

The U.S. Court of Appeals for the Sixth Circuit has confirmed that a party claiming infringement of copyrighted computer software must identify those components of the software that are protectable under copyright law before a jury can determine the substantial similarity of the defendant’s software.  Automated Solutions Corporation v. Paragon Data Systems, Inc., Case No. 12-3025; -3058 (6th Cir., June 25, 2014) (Cleland, J., sitting by designation). More here at the National Law Review website.

Re/Code reports that videogame streaming site Twitch's announcement that videos in its archives with unlicensed music will be flagged and partially muted has been met with some consternation and anger by users: Twitch has now admitted that it “screwed up” the announcement and has promised to add an “appeal” button for music that users think was flagged in error. But the actual act of cracking down on that unlicensed music, a seemingly necessary move to "avoid trouble from the litigious music industry", is here to stay.

Ronald Reagan: Official Portrait, 1981
Author Craig Shirely, an expert on former US president Ronald Reagan, is threatening to sue another author and biographer, Rick Perlstein, for copyright infringement for  his new Reagan book, The Invisible Bridge, seeking that the publisher of Perlstein's book pulp all copies, pay $25 million in damages, and take out adverts apologising to Shirley in The New York Times, The Washington Post, Newsweek, The Nation, The New Republic, Slate, and Salon. TechDirt suggests that Shiley's claim is rather unfounded saying "what he does have is the ability to point out where Perlstein relayed the same facts Shirley had previously recounted and a few minor sections which use Shirley's previous work as source material and paraphrase it. There are a couple of rather specific words retained in the paraphrasing, but that's about it, and most of those sections are recounting a setting or happening in history" adding "And it's not as though Perlstein is attempting to hide his use of Shirley's books as source material. The book-in-print directs those interested in the source material to Perlstein's website where he lists them out, including several of Shirley's books. He further credits Shirley's work in his source notes, talking about how useful it was. He further had reached out to Shirley to discuss some of his sources earlier.". Expect quills at dawn. 

Music Publisher EMI  has asked the Second Circuit to affirm it's victory in the battle with the heirs of songwriter John Frederick Coots over the ownership of the copyright in the song "Santa Claus Is Comin' to Town," asking the appellate court to confirm the lower court decision that company owns the song's rights until 2029. In a brief to the appeals court, EMI urged the Second Circuit to uphold U.S. District Judge Shira Scheindlin's ruling that Coots' heirs couldn't use the termination provisions under the Copyright Act of 1976 to regain the rights.

One of the disputed 'selfies'
Over on the IPKat Jeremy has posted a guest blog from Estelle Derclaye which re-examines the Case of the Black Macaque - the dispute between Wikipedia and British phorographer David Slater about some monkey business.- the snaps taken when the photographer's camera was stolen by a monkey (a crested black macaque) while he was on a trip to Indonesia in 2011 - and the monkey took a few shots of herself. Back in 2011 Aurelia J. Schultz posted an article on the 1709 Blog looking at this from the perspective of UK law and Indonesian law - as that is where the photo was taken - and the Daily Mail published the pictures here in the UK and online - and one of the thtee published 'selfies' had (C) Caters News Agency embedded in the shot with Mr Slater explaining "One of them must have accidentally knocked the camera and set it off because the sound caused a bit of a frenzy" and "At first there was a lot of grimacing with their teeth showing because it was probably the first time they had ever seen a reflection. They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button. The sound got his attention and he kept pressing it". There is no mention of Slater amending the shot at that time although the three shots do look beautifully positioned and cropped in the Mail. Aurelia's opinion on the then known facts - "it appears under UK law, the photos are in the public domain. Under Indonesian law, the matter is less clear."  Slater is now looking to have the photos removed from Wikipedia: Wikipedia believes that although the photos were taken on the photographer's camera, he does not own the copyright because he did not take the photos. The Wikimedia Foundation spokeswoman, Katherine Maher, said that under US law no one owns the copyright and a message on its site states: "This file is in the public domain because as the work of a non-human animal, it has no human author in whom copyright is vested." Slater believes that Wikipedia's refusal to remove the article and a link to a free download of the images has negatively effected his livelihood and earnings. Estelle's view - "So is there copyright in the photograph? It seems
like this will be an evidential issue. If the photographer did indeed adjust the camera settings and the monkey stole the camera, then the monkey just pressed a button and is not the author, but the photographer is" and asks whether amendments such as cropping can "qualify the photograph as a derivative work made by the photographer?" concluding
 "The photographer may have a case -- and he actually wants a court to decide the issue." There were ten comments last time I looked - a couple of which are well worth a read. And with all this monkeying about, why not take a look at Eleonora's blog on the infamous 'Oscars' selfie - another copyright conundrum - but this one caused by actors rather than apes! And here's what hapens when you put a camera amongst a pride of lions ........ something that actors would NEVER do! And an interesting blog on this from Andrew Charlesworth, Reader in IT & Law at the University of Bristol, looking at both the concept of who can be a person and who might own the copyrights - and which jurisdiciton might apply here - and from an Australian perspective (what if a Koala took the selfie) see much more here.

That Oscars selfie and an automated snap of lions
And finally (and as you enjoy these various selfies) the CopyKat came accross a rather well written article about "common copyright myths related to fan fiction". The blog, A Fresh Look at Copyright and Fan Fiction by non lawyer Deb McAlister-Holland was actually an update of an earlier blog about fan ficiton and the author had been contacted by attorney Heidi Tandy who then helped McAlister-Holland through this tricky area - recently thrust into the public eye with Conan Doyle Estate's unsuccessful attempt to protect an expired copyright in many of the Sherlock Holmes stories and the characters of Holmes and Dr Watson. This new article is a good read and looks at transformative works under US law, The Supreme Court's decision in Campbell v. Acuff-Rose Music, the "Harry Potter Lexicon" case, and commercial and non-commercial uses in the USA in the context of fan fiction. If you have a burning urge to write the next sequel or prequel to Lord of the Rings, or deveop your own 'Harry Potter' characters or bring new tales of vampiric delight with your own Twlighight Saga you can find the original article here and the updated article here.

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