Thursday, 26 February 2015

Loser pays? This might be buyer or seller when it comes to artists' resale royalties says CJEU

Judgment was given today in Case C-41/14 Christie's France SNC v Syndicat national des antiquaires, a reference from the French Cour de Cassation for a preliminary ruling from the Court of Justice of the European Union (CJEU). This was not one of the most taxing copyright-related cases to demand the court's attention and the CJEU was able to dispense with it, from start to finish, in just over 13 months -- an impressive performance if one recalls that, only a few years ago, judgments in intellectual property cases often took twice that length of time.  The case is summarised with exemplary clarity by the Curia press release, reproduced below for your convenience:
The cost of the royalty that has to be paid to the author on any resale of a work of art by an art market professional may be borne, definitively, by the seller or the buyer

Although under EU law the royalty is, in principle, to be paid by the seller, the Member States may specify another person from among the professional persons referred to in Directive 2001/84

The resale right is defined in an EU Directive [Directive 2001/84 on the resale right for the benefit of the author of an original work of art] as the right of the author of an original work of art to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work. That right applies to all acts of resale involving art market professionals (salesrooms, art galleries and, in general, dealers in works of art) as sellers, buyers or intermediaries.

Christie’s France, the French subsidiary of the multinational firm Christie’s, regularly organises auctions of works of art. A resale royalty is payable in respect of some of those sales. Christie’s France has provided in its general sales conditions that, for certain lots marked in its catalogue, it will collect from the buyer, for and on behalf of the seller, the amount representing the resale royalty.

The Syndicat National des Antiquaires (SNA) takes the view that, in placing the onus of the resale royalty on the buyer, Christie’s France’s general conditions amount to unfair competition. Christie’s France considers that the Directive states without further clarification or restriction that the royalty is payable by the seller and thus does not preclude a contractual arrangement regarding responsibility for the payment of the royalty. Hearing the case, the Cour de cassation (Court of Cassation), France, has asked the Court of Justice whether the seller is always definitively to bear the cost of the resale royalty or whether it is possible to depart from that rule by agreement

In today’s judgment the Court declares that the Member States alone may determine the person liable for the royalty. Although Directive 2001/84 provides that the person by whom the royalty is payable is, in principle, the seller, it none the less allows for a derogation from that rule and thus leaves the Member States at liberty to specify another person from among the professional persons referred to in the Directive who, alone or with the seller, will assume liability for the payment of the royalty. The person who has been designated in that way by national law as the person by whom the royalty is payable may agree with any other person, including the buyer, that that other person will definitively bear, in whole or in part, the cost of the royalty, provided that a contractual arrangement of that kind does not affect the obligations and liability which the person by whom the royalty is payable has towards the author. The Court points out that such a derogation is in keeping with the Directive’s objective of bringing to an end distortions of competition in the art market, since the harmonisation concerned is limited to those domestic provisions which have the most direct impact on the functioning of the internal market. For the purpose of achieving that objective, thus circumscribed, it is necessary to make provision as to the person liable for payment of the royalty and as to the rules for establishing the amount of the royalty. However, such provision is not necessary with regard to the question as to who, definitively, will bear the cost of the royalty.

The Court does not exclude the possibility that such a derogation may to some extent have a distorting effect on the functioning of the internal market. However, such an effect is only indirect since it arises as a result of contractual arrangements that are independent of the payment of the royalty to the author, for which the person by whom the royalty is payable remains liable.
Given that Article 1(4) of the Directive reads
"The royalty shall be payable by the seller. Member States may provide that one of the natural or legal persons ... other than the seller shall alone be liable or shall share liability with the seller for payment of the royalty",
it is difficult to see how even the CJEU was going to persuaded to give a different ruling,

There's also a Katpost from fellow blogger Eleonora here, which you are invited to read if you feel in need of further inspiration.

Monday, 23 February 2015

The CopyKat - trolling tonight

Freeplay, the US-based library music company, which has been providing music for bedroom filmmakers for their YouTube videos, has filed litigation against four 'multi-channel networks', accusing the the firms of abusing licences they had designed for user-generated videos to circumvent having to pay for the music used in their commercial content. The companies being sued include some of the big guns in the growing MCN space: Disney's Maker Studios, DreamWorks Animation's Awesomeness, Big Frame and BroadbandTV Corp. Two more - Machinima and Collective Digital Studio - which launched pre-emptive strikes against Freeplay last week, are set to receive countersuits from the music rights owner in due course. Freeplay offers a licence to amateur video makers that allows them to use music from the Freeplay library free of charge, on the condition Freeplay is able to subsequently monetise that content on YouTube using Google's Content-ID system to collect ad revenues. But Freeplay charges commercial content producers $250 a year for a licence - and says that licence is designed for personal Youtube channels - NOT MCNS. Freeplay say they used the audio fingerprint technology TuneSat to locate their music on numerous MCN-operated channels all being used without the right licence. The lawsuits allege that Freeplay contacted the four MCNs about licensing the music, but that they were not willing to negotiate. The suits seek unspecified monetary damages and demand that the infringement cease. Machinima and Collective Digital Studio argue that Freeplay is deliberately confusing amatuer video makers into using the free sync music from Freeplay's libraries - only to be subsequently invoiced, or threatened with legal action when the usage is classified as commercial. The MCNs go as far call Freeplay's approach 'copyright trolling'. More on Variety here.

And more on alleged trolling - this tme its all about a Australian wine maker called Stephen Moignard who has designed an algorithm called Plfer to hunt down "substantially similar" text across multiple websites and serve demand letters to alleged copyright infringers. TechDirt is of the opinion that Plfer's detection algorithm bears many similarities to commercial plagiarism detection software, albeit with a few tweaks that allow it to bypass web formatting and other obstacles that might throw off comparisons. TechDirt also have some queries about Mr Moignard's maths and interpretation of the law - and all in all its a very interesting read, even for luddites like the CopyKat. The beta site for Plfer is here and the value of copyright infringements currently 'detected' is a whopping $1,413,463,665.

And finally on this: Two people targeted by one of Rightscorp's anti-piracy programmes in the U.S. say that the somewhat controversial company has violated America's Telephone Consumer Protection Act by sending them automated calls and text messages without permission. In a lawsuit filed with the federal court in Georgia, Melissa Brown and Ben Jenkins deny downloading any copyright infringing content, but say Rightscorp broke communication laws by following up an initial letter with calls and texts attempting to gain a settlement for alleged infringements.

The Daily Mail reports that a German historical society is set to publish an annotated edition of Hitler's controversial tome Mein Kampf after the book's copyright expires later this year. The Munich Institute for Contemporary History (IfZ) says it will publish a two-volume edition of the book in which the Nazi leader outlines his anti-Semitic beliefs and plans for world domination. The new volume will consist of a total of 2,000 pages. However just 780 of these will contain Hitler's original text - the rest will be comments from contributors and the work will also contain a new introduction and index. Copyright in the book is held by the State of Bavaria. In January 2012 the 1709 blog reported that the District Court of Munich I (LG München I) had issued a preliminary injunction on behalf of the Bavarian state government, prohibiting the planned publication of commented excerpts of Mein Kampf by British publisher Peter McGee because of the copyright. The injuction was subsequently upheld. Bavaria also indicated that Germany's anti-Nazi laws might be a bar publication - now more pertinent as copyright expires 70 years after Hitlers death in 1945.  In Decmnber 2013, reversing a pervious postion, The Bavarian governor's chief of staff, Christine Haderthauer, said the book amounted to incitement to hatred and the government would file criminal complaints if anyone tried to publish the book when the copyright expired.  In 2012 the then President of Germany's Central Council of Jews said he hoped that the reprints would ‘demystify" the book. "I'm an Internet junkie myself" he said. "Everyone can already find the book on the Web." However, an American Jewish group countered saying the publication plans could be morally offensive and last year Dieter Graumann, president of the Central Council of Jews in Germany, said that he was strongly opposed to the book going on sale. 

Vivian Maier - self portrait
The epic battle over who owns the copyright in the photography of Chicago nanny Vivian Maier has had a couple of new skirmishes, Maier, who had a 'secert life' as a photographer, snapped over 150,000 images in and around Chigago from the 1950s onwards. Maier made no attempt herself to sell or exploit her intimate and often-gritty photography of everyday people, rich and poor, and often submitted the films she took for developing under false names. She never registered any copyrights in her images. A few years ago interest in her work exploded, and prints of her photographs from this bygone era have sold for thousands of dollars.John Maloof, a 33-year-old former Chicago real estate agent who features in and co-directs the Oscar nominated documentary Finding Vivian Maier and who has a large collection of her work, is facing a claim that might stop him exploitating the images and indeed the film. In 2007 Maloof bought a box full of Maier's negatives at auction for $380 from a repossessed storage locker and he now owns the vast majority of her work, more than 100,000 images that are mostly in negatives or undeveloped film. He traced Maier's whereabouts to the Chicago area in 2009, but too late - she had recently died at the age of 83. 1709 readers will know only to well that possession of the negatives and prints is not ownership of the copyright in those images.  the 1976 U.S. Copyright Act automatically gave federal copyright protection to works that were created but neither published nor registered before January 1, 1978 and that terj extends for 70 years after the death of the author. And Maloof seems to have found an heir who "assigned" him copyrights. Now enter Virginia-based David Deal, a longtime commercial photographer who read about Maier as he completed a law degree: he has sparked the legal fight by filing a notice in a Chicago probate court identifying a relative of Maier who lives in France, retired bureaucrat Francis Baille, a first cousin once removed who apararently had never heard of his increasingly famous relative. Maloof counters by saying  Maier's closest relative is one Sylvain Jaussaud, also described as a first cousin once removed. Jaussaud, who did know Maier and appears Maloof's film, apparently signed over the copyrights in Maier's work to Maloof. And now another party has joined into the tussle: Cook County, which represents Maier's estate (in the interim), woud seemingly hold all copyrights at the moment in the abscence of any assignment by Maier herself. It appears Cook County lawyers are speaking with Maloof and we can only hope that a sensble solution can be reached so this extraordinary body of work doesn't get locked away. More here and a September article on the IPKat by Marie-Andree Weiss here and on Art & Artifice here.

The Oscars are out so a couple of film updates to finish: Director Dan Gilroy, Bold Films, Open Road Films and NBC Universal Media have been accused of copyright infringement amid allegations that the plot of the Oscar-nominated movie 'Nightcrawler' was lifted from a film by a Utah filmmaker Richard Dutcher. Dutcher has filed a lawsuit in Salt Lake City's US District Court, claiming Nightcrawler bears striking similarities to his 2007 movie 'Falling', about a freelance news videographer who scans police radio channels and captures footage of a murder in progress (which on paper sounds remarkably similar to the excellent Nighcrawler). Dutcher's film, which was written in 1999, only received a limited release in Los Angeles and Salt Lake City, but he is convinced it gave Gilroy the idea for his 2014 crime thriller, which stars the creepy but magnifcent Jake Gyllenhaal in the lead role. We shall see. 
 And a woman who filed a lawsuit against Disney’s ‘Frozen’ in late 2014 over alleged copyright infringement of her life memoirs (no, seriously!) has perhaps unsurprisingly  had her case thrown out by a Judge. Isabella Tanikumi decided to take legal action against Disney because, in her view, the film’s story ripped off her real-life memoirs, titled ‘Yearnings of the Heart’, which revolved around her family’s lives in the mountainous areas of Peru.  U.S. District Judge William Martini disagreed stated that the themes appearing in Frozen and Yearnings of the Heart are expressed differently. All the themes that Tanikumi listed are general plot ideas and themes that are not protected by copyright law and the judge noted no substantial similarities between the two works. More here.

At the Oscars, Birdman picked up best picture, best cinematography, best original screenplay and best dirrector (Alejandro González Iñárritu); 
Eddie Redmayne picked up best actor for his role as Dr Stephen Hawking in The Theory of Everything and Julianne Moore collected best actress for Still Alice. J K Simmons won best supporting actor (in Whiplash) and Patricia Arquette won best supporting actress (in Boyhood). Whiplash also picked up Ocsars for best editing and best sound mix and The Grand Budapest Hotel won Oscars for best production design, best costume design, best make up and best original music score by Alexandre Desplat . The Imitation Game won best adapted screenplay and Interstellar the award for achievement in visual effects .Best Song gong went to John Legend and Common for 'Glory', the theme song from 'Selma'  More here.

Saturday, 21 February 2015

Fox News Motion for Summary Judgment Denied in 9/11 Photograph Fair Use Case

On February 10, Judge Edgardo Ramos from the Southern District of New York (SDNY) denied Fox News Network’s motion for summary judgment of a copyright infringement suit filed by the copyright holder of an iconic 9/11 photograph. The case is North Jersey Media Group Inc. v. Jeanine Pirro and Fox News Network, LLC.

Plaintiff is North Jersey Media Group, the publisher of New Jersey newspaper The Record. It holds the copyright of the widely published photograph of three New York firefighters raising the American flag near the ruins of the World Trade Center.  This photograph was taken on 9/11 by photojournalist Thomas E. Franklin while on assignment from The Record. It has since geneated more than $1 million in licensing revenue.

On September 11, 2013, a Fox News employee posted this photograph on the Facebook page of one of Fox’s television shows, Justice with Judge Jeanine, and chose to associate it with another iconic photograph, taken by Joe Rosenthal, which shows four U.S. Marines raising the American flag on Iwo Jima, during World War II.  The two images were not otherwise altered, but the employee juxtaposed #neverforget on the images before posting them on Facebook.

Plaintiff contacted Fox News on September 13, 2013, asking the photograph to be taken down. The posting was deleted a few days later. In October 2013, Plaintiff filed a copyright infringement suit against Jeanine Pirro, aka Judge Jeanine, and against the network. Defendants moved for summary judgment, claiming fair use. The SDNY denied the motion, after having examined the four fair use factors set forth by Section 107 of the Copyright Act.
The Purpose of this Truck is to Gather News 

First Fair Use Factor: Purpose and Character of the Use

The Supreme Court explained in 1994 in its Campbell v. Acuff-Rose case that, under this first factor,  courts must assess whether the new work merely supersedes the original work or if it “instead adds something new, with a further purpose or different character [and] alter[s] the first [work] with new expression, meaning, or message, … in other words, whether and to what extent the new work is "transformative.”

Defendants argued that their use was transformative as it drew a parallel between 9/11 and Iwo Jima and, as such, had to be categorized as comment under Section 107, which lists comments as one of the categories of use which may be protected by fair use. Defendants also argued that adding the hashtag #neverforget “signaled FoxNews’ participation in an ongoing, global discussion” about 9/11, and that they had altered the original work by using a cropped lower-resolution version of it.
Judge Ramos was not convinced by these arguments, as these changes were “barely discernable” (sic) and because Second Circuit case law requires more changes for the use to be transformative. Judge Ramos gave as examples the works created by Richard Prince from Patrick Cariou’s photographs of Rastafarians used by Richard Prince to create his “Canal Zone” series, noting that Prince had varied the portions of the original works used, and had also changed the scale and medium of the original works. 

One remembers that the Second Circuit had found twenty-five out of thirty of Prince’s works to be transformative in Cariou v. Prince. Judge Ramos concluded that the 9/11 photograph was even less transformed by Defendants than the five Prince works which the Second Circuit did not find to be transformative. It is interesting to see how the thirty works at stake in Cariou were used by Judge Ramos as visual fair use “benchmarks” to assess whether a particular use is transformative enough to be protected by fair use. 

Judge Ramos also noted that “#neverforget was a ubiquitous presence on social media that day [and that] [t]hus Fox News ‘commentary, if such it was, merely amounted to exclaiming “Me too.” The first factor was found to favor Plaintiff.

Second Fair Use Factor: Commercial Use and Nature and of the Work

Fox News operates for profit and Judge Jeanine’s Facebook page “is intended to capture revenues for the network.” Therefore, the use of the protected work was commercial. However, Second Circuit courts, when assessing fair use, discount the fact that almost all newspapers are published for profit. Doing otherwise would mean that commercial uses are presumptively not protected by fair use. That was not the intent of the Congress, according to the Supreme Court (Campbell, at 584).

Instead, courts consider that “the more transformative the work, the less important the commercial purpose.” As Judge Ramos did not find Defendants’use to be transformative, the second factor had thus to be carefully weighed. He concluded that there was “at least a question of material fact as to whether Fox News posted [the combined photographs] for the purely expressive purpose of commenting on the events of September 11, 2001, or whether it did so for the  commercial purpose of promoting the [Judge Jeanine] program.” Therefore, this point would have to be debated in court.

Courts distinguish expressive works from factual works in their analysis of the nature of a work, and that leads to a discussion on the nature and even the scope of copyright protection of photographs depicting current events. Defendants claimed that the copyright in the photograph taken by Thomas Franklin had to be limited “to Franklin’s decisions in taking the photograph” and that “Plaintiff cannot claim ownership in the firefighters’ actions, the expressions on their faces, their ashen uniforms, or the American flag.” Plaintiff instead claimed that the work “involved many creative decisions,” such as the lens chosen and the orientation of the photograph.
How do I love the th(r)ee (+ 1) factors? Let me count the ways.

Judge Ramos found that the second factor favored a finding of fair use, noting that Franklin “did not create the scene or stage his subjects.” Judge Ramos cited the Southern District of Florida Katz v. Chevaldina case, where the plaintiff had registered the copyright in a photograph representing him in an unflattering way and then filed a copyright infringement suit against a blogger who had used it to illustrate blog posts criticizing the plaintiff. The Southern District of Florida had found “no evidence that the photographer influenced, at all, the Plaintiff’s activity, pose, expression or clothing” and that, therefore, the second fair use factor weighted in favor of defendant.

The Katz v. Chevaldina case in on appeal in the Eleventh Circuit, and our case is likely to go to trial. Therefore, the issue of copyright protection afforded by works of photojournalists may be further debated this year in US courts.

Third Fair Use Factor: Amount and Substantiality of the Portion Used

Judge Ramos quoted the recent Second Circuit Authors Guild v. Hathi Trust case, where the court quoted the Supreme Court in Campbell:  “[t]he crux of the inquiry is whether ‘no more was taken than necessary.’ Judge Ramous concluded that this factor was neutral, as it was not clear whether Defendants could have used less of the protected work and still make sure that the public would recognize the iconic 9/11 photograph.

Fourth Fair Use Factor: Effect on the Market

Judge Ramos quoted the Second Circuit Cariou case, where the court noted that what matters when assessing this factor is “not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work” (emphasis in original). For the Second Circuit, a defendant in a copyright infringement cases has usurped the market if her target audience and the nature of the infringing content are the same as the original work. Courts must also consider whether the use is transformative.  

This illustrates that the four factors are not compartmentalized: whether a use is transformative (first factor) may determine the nature of the work (second factor), which may in turn determine the effect on the market (fourth factor). In our case, Judge Ramos weighted against a finding of fair use, as Fox News did not substantially transform the original work, and also because Plaintiff still derives significant licensing revenue from the protected work.

Judge Ramos denied Defendants’ motion for summary judgment. The issue of fair use will have to be decided in court, unless the parties decide to settle. 

Image of truck courtesy of Flickr user (vincent desjardins) under a CC BY 2.0 license.

Image of Four courtesy of Flickr use George Redgrave under a CC BY-ND 2.0 license

Friday, 20 February 2015

Australians consult on "VCAP" system

The Australian Rights Holders and ISPs announced today that they are consulting on a draft Code to combat online Copyright Infringement, along similar lines to the UK's Creative Content UK project (fka VCAP or the Coluntary Copyright Alert Programme).

As set out in their press release here:

The draft Code, published by Communications Alliance for public comment, is the product of an intensive development process by Internet Service Providers (ISPs) and a broad alliance of Rights Holders from the music, film, television and performing arts industries.

The draft Code is scheduled to be submitted in final form to the Australian Communications and Media Authority (ACMA) in April this year for registration – in line with the timeline requested by the Federal Government in December 2014.

The Code creates a Copyright Notice Scheme through which residential fixed internet users who are alleged to have infringed copyright online will receive an escalating series of infringement notices designed to change their behaviour and steer them toward lawful sources of content. [Sounds very similar to the UK system announced last July]

The Scheme has a strong emphasis on public education and does not contain explicit sanctions against internet users, but does provide for a ‘facilitated preliminary discovery’ process through which ISPs can [in the sense of "may" or "are required to"?] assist Rights Holders who may decide to take legal action against persistent infringers. [it has not been suggested that this type of process will form part of the UK proposals]

The Scheme contains strong safeguards against any threat to the privacy of internet users and allows an account holder who receives three infringement notices in a 12 month period to have the validity of the allegations independently reviewed. Several key issues are still under discussion between Rights Holders, including elements of the funding arrangements for the Scheme and the volume of notices anticipated to be sent during the Scheme’s initial 18 months of operation.

Communication Alliance CEO, John Stanton, praised the cooperative spirit and energy shown by Rights Holders and ISPs to reach agreement on the draft.

“These issues are complex and while both industries want to eradicate online copyright infringement, it has proved very difficult in the past for Rights Holders and ISPs to agree on the shape of a notice scheme.”

“Much work remains, but publication of a draft Code is an important milestone toward greater protection for the legitimate rights of the creative industries,” he said.

Rights Holders involved in the Code development include APRA AMCOS, ARIA, Australia Screen Association, Copyright Agency, Foxtel, Free TV Australia, Music Rights Australia, News Corporation Australia, Village Roadshow Limited and World Media.

Chris Woodforde, the representative of many of the Right’s [sic] Holders during the negotiations said “The creative industries believe that the implementation of an effective code is an important step in protecting creative content in the online environment. The release of the draft code for public comment is important in achieving that goal. The creative industry representatives will continue to work with the Government, ISPs and other stakeholders to implement the code and address the serious issue of online copyright infringement.”

A Copyright Information Panel (CIP) will be created to oversee the Scheme and to coordinate the public education program, including via a dedicated website. [but unlike in the UK, there is no mention of government money to achieve this]

Consumer representative body ACCAN and the Internet Society of Australia are among the stakeholders involved in the Code development process.

Members of the public and other stakeholders are encouraged to comment on the draft Code by submitting comments here The deadline for public comment is 23 March 2015. Public comments will be taken into account before the Code is finalised and submitted to the ACMA.

The effectiveness of the Code will be independently evaluated 18 months after its commencement.

Thursday, 19 February 2015

IPO Copyright Notices, like Number 3 buses...

Very exciting news that the IPO has published another in its series of copyright notices here.

It is in fact an updated version of an earlier notice issued in January (which we may have missed on this blog) entitled "Performance of Live Music" and comes hot on the heels of the notice about knitting and sewing patterns.

As the IPO explains "This notice provides advice for people who may wish to perform music live. This notice is not meant as a substitute for legal advice on particular cases, but it can help readers understand some of the issues involved. It is not a conclusive view of the law - only a decision of the court can provide that." 

Like most copyright practitioners, I am all for providing more accessible information to the public about copyright, but looking at this notice, I wonder whether it is right to do so at the expense of accuracy.

Take, for example, the following extract from the notice.

The responsibility for holding licences to allow the public performance of live music falls to venues where the performances take place, for example a pub, club or village hall. 

I always understood that the primary restricted acts in copyright law were (in this case) performing or playing music in public or authorising others to do so, so that one might say that the primary responsibility for holding licences falls to the performers.  It is undoubtedly true that venues are potentially liable for secondary infringement, but that requires at least a degree of knowledge (there is a defence for a venue owner who believes on reasonable ground that the performance would not infringe copyright) and only applies to places of public entertainment.  

What the IPO seems to have done is to conflate the law with practice - the sentence quoted above is immediately followed by:

Provided that the venue that you are performing in has an up to date public performance licence from PRS then in almost all cases no further action is necessary in order to perform the music and lyrics from a published copyright work. 

which is undoubtedly true and reflects the practical reality of how public performance of live music is licensed:

What do readers think?  Are they willing to excuse the misleading statement of law on the basis that it accurately reflects the reality of licensing practice?

CLA-DACS payback dispute: a reader asks ...

The following passage, posted in mid-December on the Association of Illustrators (AOI) website (here), has been drawn to this blogger's attention by one of our readers:
"Payback royalties derive from licences that are negotiated by the Copyright Licensing Agency (CLA), and DACS shares these royalties with other parties such as publishers - which amount to over £4 million per year for Payback claimants.

Payments are made as part of a long-standing agreement between DACS and the CLA, but CLA have told DACS that they believe that they are no longer bound by this agreement. DACS has insisted that the existing agreement must continue until its scheduled end date of September 2017, to help manage the transition to any new arrangements and protect claimants incomes in the interim. So far the CLA has not accepted this. This dispute has the potential to affect Payback in 2015 and beyond".
Our reader wants to know if anything has happened since. If anyone knows, can they assist by posting a comment below.

Wednesday, 18 February 2015

Jean Nouvel Sues the French Music Complex He Designed, Claiming Breach of His Moral Rights

French newspaper Le Monde reported last week that architect Jean Nouvel is suing the Philarmonie de Paris, claiming that its premature inauguration of a building he designed is a breach of his moral rights. 

Jean Nouvel won in 2007 an international competition launched to design the Philarmonie de Paris building, financed 100% by public money, the French government and the city of Paris. It is a cultural complex dedicated to music located in the Parc de la Villette area of Paris, featuring a concert hall and exhibitions spaces. The Orchestre de Paris is its resident orchestra and it will also host other orchestras, dance companies, and exhibitions.

The building was inaugurated last January 14. The same day, Jean Nouvel published an editorial in Le Monde, where he explained that he did not attend the inauguration because he believes that the building has been opened to the public too soon, without fine tuning its acoustics. The architect also claimed that the project managers cut corners to save money during its completion, and the result is that “[t]he architecture is martyred, the details sabotaged, so taxpayers will have to pay, once again, to correct these aberrational decisions.” Mr .Nouvel claimed that the inauguration of the building was “premature” and claimed a breach of his moral rights. 

He then filed suit against the Philarmonie de Paris in the Tribunal de Grande Instance de Paris (TGI).  Both parties presented their arguments on February 13. According to the Le Monde article, Mr. Nouvel is not asking for damages, but is asking the TGI to order the Philarmonie de Paris to make adjustments to twenty-six areas which are not, according to him,  in compliance with his original design, among them the foyer, the parapets, and reflectors in the concert hall. As long as these modifications are not made, he is asking the Philarmonie de Paris not to use his name and his image in connection with the project. 

Droit Moral of Architects
Building and Judging Both Requires Balancing Skills

I did not find the complaint, and thus I cannot discuss the arguments of both parties. However, while architects are indeed considered authors under French intellectual property law, their droit moral is not without limits, due to the utilitarian nature of their creations. Therefore additional considerations, such as public safety, may trump the architect’s moral rights. For instance, the French Supreme Civil Court, the Cour de cassation, held on January 7, 1992, that “the practical use of a building commissioned to an architect prevents him to try to impose an absolute inviolability on his work, to which its owner has the right to make changes when it becomes necessary to adapt it to new needs. Nevertheless, it is for the judicial authority to assess whether these alterations to the architectural work are legitimized, given their nature and their importance, under the circumstances which forced the owner to undertake them.” 

The Cour de cassation provided in 2009 a balancing test to be used by judges in these cases. They must “determine whether by their nature and importance, the changes made did or did not exceed what was strictly necessary and were or were not disproportionate to the aim pursued by the owner.”

Judgment is expected in the spring, and we’ll report on it then.

Image is courtesy of Flickr user U.S. Geological Survey under a CC BY 2.0 license

The CopyKat - A spliffing new case for Mr Prince!

Photographer Donald Graham has sent cease-and-desist letters to the 'appropriation' artist Richard Prince and the Gagosian Gallery, requesting that they stop displaying or disseminating any artworks or other materials that include Mr. Graham’s images. 1709 readers will remember Mr Prince from the 2013 U.S. case of Cariou v Prince where Mr Prince largely succeeded with his fair use defence after 'transforming' Mr Cariou's photographs of Rastafarians in Jamaica. The new complaint, which was first reported by the website Hyperallergic, stems from a work shown last Autumn at Gagosian in the exhibit “New Portraits” (see image) which featured ink jet prints of images that Mr. Prince had taken from Instagram. The work shows Mr. Graham’s photograph “Rastafarian Smoking a Joint, Jamaica” as it appeared on the Instagram feed of a third party, with the comment “Canal Zinian da lam jam” added by Mr. Prince as a caption. Yes, he added a caption to an Instagram grab. In Prince's earlier case, the US Court of Appeals for the 2nd Circuit broadly supported Mr Prince's transformations, saying "Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five, which we discuss separately below. These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative." Could the same apply on these facts? The CopyKat thinks not - but it's all good publicity! More on Artsbeat here

PPL, the UK collection society which licenses use of recorded music on behalf of performers and record companies, brought 230 High Court cases against operators of leisure establishments for alleged copyright infringements in 2014, an increase of 10% on last year, according to analysis by the City law firm RPC. As this Blog has previously noted, The Football Association Premier League also increased the number of High Court cases it launched in 2014. It brought 36 cases, compared with five in 2013, as FAPL and Sky focussed pubs allegedly infringing copyright by broadcasting matches without an appropriate licence. More here.

BRICS (Brazil, Russia, India, China) countries accounted for only 5% of global copyright license revenue for authors and composers in 2013, according to a report from the International Confederation of Societies of Authors & Composers (CISAC). The CISAC Global Collections Report also quotes industry data estimating the Chinese advertising market as one of the fastest growing in the world. Advertising revenue is a key reference indicator in determining collective licensing tariffs. Much of the growth in advertising revenue comes from online advertising, with the China Internet Network Information Center (CNNIC) separately reporting that China now has 649 million Internet subscribers.

Swedish songwriters have joined their UK counterparts in criticising the way in which the digital streaming pie is currently shared out, pointing out the unfair and unsustainable way in which royalties stemming from streaming services are being shared between different stakeholders - in particular the large share taken by record labels on their own behalf, and on behalf of recording artistes. Earlier this month Marty Bandier, head of Sony/ATV Music Publishing, used the Grammy's to argue that songwriters and publishers have been given an unpalatably small portion of the digital music pie, and the British Academy Of Songwriters, Composers And Authors (BASCA) launched a campaign called The Day The Music Died which stated that as the recorded music industry has shifted from CDs to downloads to streams, "songwriters and composers are now finding their livelihoods under dire threat". This view is now echoed by 133 Swedish writers who say the returns from the likes of Spotify and Deezer mean ""very few songwriters will be able to afford to create music other than as a hobby". CMU Daily estimated that in a typical business model, 30% of the income from subscription and advertising revenues are taken by the streaming service to cover non royalty costs, overheads and its own profit, record labels take 55-60% of gross revenues, leaving at the most 10-15% for songwriters and publishers - if that - with one report backed by CISAC saying the songwriting share can be as little as 3% and recommending upping the revenues shared by rights holders to 80% and rebalancing the shares taken for recorded music and the songs to an equal footing. More on the Guardian Blog by songwriter Helienne Lindvall and on potential US reforms here.

So what to do? Well here's a solution (maybe .......): Qtrax, which at one time looked like being a leader in the digital music market only to see its much lauded bubble, launched at the MIDEM conference in 2008, well and truly burst as the major labels refused to deal, is back!  Qtrax is an advert-supported music player that "for the first time allows the users to download, stream and create a personalised radio channel all from one place" - and, crucially, all for free - that is relaunching at the end of the quarter with the twin aims of cracking down on music piracy and - yes, here's the twist - ensuring artists get paid for their work.  The all new Qtrax will launch the Artist Manifesto and 30% of equity in the company will be set aside for an 'Artists Trust', while  an additional 10% of royalties will be paid directly to artists and songwriters whose content is available on the service with Qtrax boss Allan Klepfisz telling The Telegraph: "There is something very wrong with the current model. The current economic structure is not likely to ever compensate the artist... But it's not that difficult for a paradigm shift to occur. Traditionally the record companies get equity in digital services, but no one has asked on behalf of the artists. This could become a de facto way of doing business".

Monday, 16 February 2015

Seeing stars! Some reflections on Audrey Hepburn v Caleffi

Here's a guest post from Valentina Torelli on a legal decision from Italy that has attracted a good deal of attention beyond that lovely country's borders. This is what she says:
A week ago, the IPKat reported a fascinating judgment of the Court of Milan concerning the infringement of Audrey Hepburn's publicity right by the Italian company Caleffi. As explained, the Court of Milan admitted Audrey Hepburn's heirs' claim that Caleffi pay compensatory damages and restore moral prejudice for having deployed Audrey Hepburn's image in Breakfast at Tiffany's on postcards and brochures, without authorisation, within the contest called “il diamante dei sogni” (the diamond of dreams). This advertising material featured on Caleffi's website and as part of an advertising insert of a well-known Italian magazine. 
In particular, Audrey Hepburn's heirs argued that her right of publicity was infringed under Article 96 of the Italian Copyright Law and Article 10 of the Italian Civil Code. The first provision establishes that a person's portrait cannot be displayed, reproduced or put in the market without the person's consent – or the heir's consent – unless the requirements of Article 97 are met: among others, the celebrity status of the person justifies the lack of consent when the image's reproduction refers to facts, events, ceremonies of public interest and when the reproduction of the image took place in public circumstances. 
In any event, the portrayal's display and commercialisation are forbidden when they hinder the reputation, the honour and the dignity of the person concerned. Likewise, Article 10 of the Italian Civil Code grants physical persons the right to ask for the cessation of the unlawful display or publication of their portrayal and for compensation in the form of damages, when such uses occurred outside the cases provided by the law or when the person's dignity and reputation are impaired. 
The Court of Milan first held that Article 96 and 97 of the Copyright Law could not resolve the dispute in that the alleged breach did not encompass Audrey Hepburn's real image. The Court then applied Article 10 of the Italian Civil Code, as the present case entailed the rearrangement of the famous window-shopping scene in Breakfast at Tiffany's where Holly (alias Audrey Hepburn) was looking at Tiffany's showcase. 
The photographer of the advertisement depicted, partially from behind, a model in a black dress, with lookalike Holly hairstyle, with black gloves and sparkling jewellery while posing in front of a shop showcase. All these circumstances were enough for the Court to find that there had been an undue association between the photography's narrative subject matter and Audrey Hepburn's image, although that image only evoked her ‘Holly’ character. In allowing the claim, the Court of Milan applied old settled case law dating back to 1984, 1992 and 1997, which had extended the physical person's right to portrayal to elements not directly connected to that person such as clothing, decoration, make-up. The Court however considered that the Hepburn/Holly persona was a public person in the audience's perception, this being an evocative reference which required a request for consent to use the person's image.
From a legal and photographic point of view, I am not completely sure that the Court of Milan got it right in this case in that, when I first read the judgment, I immediately wondered whether the judges had confused Audrey Hepburn's and Holly's images, despite how much the public may hold the actress performance in Breakfast at Tiffany's in high esteem. 
As regards the legal perspective, the Holly character originated from Truman Capote's creativity and it was later envisaged and adapted in an audiovisual work under Blake Edward's direction. Within the cinematographic conception of Holly a considerable degree of recognition should be accorded to Mr Hubert de Givenchy, the fashion designer who shaped Audrey Hepburn's image in and out of movie sets. Overall, Holly's features derive from the commitment of all these great professionals in the realisation of the Breakfast at Tiffany's masterpiece, produced by Jurow-Shepherd. 
That said, it would have been different if Audrey Hepburn's image had been used in Caleffi's advertisement, as happened in Ryanair's campaign in which one of Charles Prince of Wales' photographs had been used without authorisation to sponsor the suitability of its air fares. In its decision of 3 March 2004 the Advertising Standard Authority censured the advertisement in that it infringed the Prince's right to privacy because the Royal Family's permission to use the photograph had not been requested according to Article 13 of the Code of Advertising Practice. 
The Audrey Hepburn case was also different from that involving the legendary Italian songwriter Lucio Dalla, to which the Court of Milan referred. In Dalla the advertiser had used elements which delineated Dalla (left) by reference to symbols that typified him, namely a knitted hat skullcap and a pair of metal-framed spectacles. However, those features belonged to Dalla as a physical person who had also a public recognition and fame. 
In the Audrey Hepburn dispute, should there be any infringement of a right to the portrayal of Holly? Who is the holder of Holly character's image? Is there any right of portrayal available for fictional characters? Eventually, these questions could be answered by reference to the Italian Copyright Law, in particular to Article 46ff concerning copyright and related rights in cinematographic works. 
In relation to photography, there are a couple of consideration to highlight. First, it could be argued that the photographer's work in Caleffi's advertisement was an original photography and a piece of art on its own, since its suggestive subject matter did not conclusively deprive the image of copyright protection, the author's own creation could be found in the form of a minimum of reinterpretation of the window-shopping scene.
I have found the case-law on which the Court of Milan relied to assess the misuse of Audrey Hepburn's image quite outdated. All in all, I think that the way the people's image should be treated and protected should reflect the conditions of society today and that images should be treated in accordance with the role that society assigns to them. Since the judgments referred to in the present case were given, more than 20 years have passed and our society has evolved into one that recognises the wisdom of communication inspired and managed by images. 
We are driven to make our choices and to think about everything in terms of images and photographs, without stopping to think about what a photograph actually represents. Photography, advertising photography included, is more than a true and simple reproduction of someone or something: they are now often the means by which a story is told and sometimes they are also works of art on their own, like Elliott Erwitt's photography for example. 
Hubert de Givenchy hereLucio Dalla – Caruso hereRoland Barthe – Camera Lucida here

Sunday, 15 February 2015

The CopyKat - The Sky's the limit in new football deal

Sky is paying £10 million per football match in a new deal with the England's Premier League. As the market digested the £4.176bn Sky is paying over three years for 126 live matches each year it seemed that many analysts think that Sky has overpaid. Sky’s share price fell by 5%, the biggest faller in the FTSE 100. The deal is an 83% increase over the cost of the existing contract and  includes a new Friday night slot.  BT’s shares, by contrast, were up by more than 4% in early trading on Wednesday. It will pay a total of £960m compared to £738m for two packages which would include 42 games each season, which is £7.6m on a per game basis, a rise of 18%. BT will show matches on Saturday evenings and and a handful of Sunday and midweek slots. The new contract which totals £5.136 billion begins in 2016. The combined figure for the 2013-2016 seasons was £3 billion, and for the 2010-2013 seasons was £1.8 billion.

Hmmmm - maybe ..........
Andrus Nomm, a 36 year old Estonian who lives in the Netherlands, and one of a small group of ex MegaUpload staffers who are facing extradition to the US for involvement in the running of the controversial file-transfer company, has pleaded guilty to criminal copyright infringement charges and has been sentenced to a year and a day in a U.S. prison. Nomm pleaded guilty in U.S. District Court for the Eastern District of Virginia to conspiracy to commit felony copyright infringement. District Judge Liam O’Grady accepted the guilty plea and imposed the sentence. Nomm is the first defendant to face charges in the U.S. in the Department of Justice’s long-running copyright infringement case against Megaupload, and Nomm voluntarily waived his right to fight extradition. The plea is “a significant step forward in the largest criminal copyright case in U.S. history,” Assistant Attorney General Leslie Caldwell said in a statement.  Speculation remains that he had done a deal with prosecutors, and will agree to testify against his former colleagues, including Kim Dotcom. Prosecutors agreed to a light sentence for his guilty plea, the DOJ said in a press release.The DOJ has accused the operators of Megaupload of running websites that wilfully reproduced and distributed movies and other products protected by copyright. In court papers, Nomm agreed with prosecutor estimates that the cost of Megaupload’s infringement was more than $400 million. The final indictment charged the defendants with conspiracy to commit racketeering, conspiracy to commit copyright infringement and conspiracy to commit money laundering. In addition, the defendants are charged with five counts of criminal copyright infringement and five counts of wire fraud. More on PCWorld here.

A New York federal judge has agreed to certify an interlocutory appeal by SiriusXM against the ruling that gave state copyright law protection to pre-1972 sound recordings.  As a result, the 2nd Circuit will now address the legal issue that copyrights in pre-1972 sound recordings didn't cover the right to exclusive public performance - a position successfully challenged by Turtle's musicians Flo & Eddie of The Turtles who filed filed 2013 lawsuits in California, Florida and New York.

And the latest skirmish in who pays what for streaming music in the U.S. has kicked of in a court in New York. Its a legal battle over what royalties the Pandora streaming service should pay American collecting society BMI. Against the backfrop of the major publishers seeking to withdraw their rights from BMI (And ASCAP) so they can licence streaming services direct, this case concerns the terms of BMI's current licence - Pandora wants to pay 1.75% of its revenue to BMI, while the collecting society wants 2.5%. Whilst Pandora wants to maintain the status quo, somewhat oddly given the background, BMI will argue that it should be able to increase the rate from 1.75% to approach the rates the majors have achieved.

The 9th U.S. Circuit Court of Appeals has reversed a decision in a copyright lawsuit against two members of the Four Seasons and developers of the group’s Tony Award winning biographical musical “Jersey Boys.” Donna Corbello sued Frankie Valli and fellow Four Seasons band member Robert Gaudio in 2011 for copyright infringement, claiming the musical was based in part on an unpublished autobiography of Four Seasons band member Thomas DeVito that her late husband Rex Woodard ghost-wrote. Although initially registered in DeVito's sole name, Corbello amended the US copyright registration so Woodard and Devito were co-owners. She said she deserved to share in the profits from the musical's success.  The appellate court said there was contradictory evidence about whether Valli and Gaudio executed an agreement with DeVito to produce the play in time to avoid termination of their ownership rights but that “a co-owner of a copyright must account to other co-owners for any profits he earns from licensing or use of the copyright.” The case will now be sent back to Nevada federal court to determine if the musical infringes the autobiography, and Corbello is entitled to royalties from the theatre show which has run since 2005 and the Clint Eastwood film of 2014. More here and in the Hollywood Reporter here.

Saturday, 14 February 2015

Copyright Infringement Suit Filed By Graffiti Artists against Roberto Cavalli Will Proceed

Will representing graffiti artists soon become a micro niche for US IP attorneys? Here is another case where graffiti artists sued a corporation for allegedly using their art. On February 12, the Central District Court of California (CD California) denied Defendant Roberto Cavalli’s motion to dismiss a copyright infringement suit filed last year by Jason Williams and others graffiti artists. The case is Williamset. Al v. Roberto Cavalli S.p.A. et al., cv 14-06659.

Plaintiffs are Jason Williams, known as Revok, Victor Chapa, known as Reyes, and Jeffrey Rubin, known as Steel. They are graffiti artists who had been invited in 2012 by a San Francisco property owner to create a mural in San Francisco’s Mission District (the “Mural”). Revok and Steel painted their signatures, over a background of “revolutions” imagery which is Chapa’s signature style (CD California p. 1 & 2).

Defendant is Roberto Cavalli, an Italian fashion company known for its colorful prints.  It produces and markets a lower-priced brand called Just Cavalli, which introduced in March 2014 a capsule line of clothing and accessories decorated with graffiti art (the “Graffiti Collection”). Revok, Reyes and Steel claimed that the line reproduced without authorization elements of the Mural, using high-resolution photography. They asked Defendant to stop selling the Graffiti Collection, but Defendant did not comply. One of the reasons for not complying was apparently that Italians are on vacation in August [this is known as the dolce vita demurrer in some legal circles] (amended complaint at 34).

Plaintiffs then filed a copyright and trademark suit against Cavalli, the company producing the goods, and retailers selling the line, such as Amazon and Nordstrom. Defendant moved for summary judgment, which was denied by the CD California.  As this is a copyright law blog, I will only comment about copyright infringement.

Signature and Droit Moral

Revok and Steel had  used their respective signatures as part of the design, and claimed that Defendant made them indiscernible and superimposed the Just Cavalli name over Chapa’s imagery, even adding sometimes its own signature, thus giving the impression that Roberto Cavalli created these designs. Plaintiffs considered this to be “a defacement” and also “a false representation that {Roberto Cavalli] rather than Plaintiffs was the creator” (amended complaint at 32). However, they did not claim that Defendant had thus violated the Visual Artists Rights Act of 1990 (VARA).

VARA, 17 U.S.C. § 106A, was enacted to implement article 6bis of the Berne Convention into U.S law. It provides authors of a work of visual art the right to claim authorship of that work, to prevent the use of his or her name as the author of any work of visual art which he or she did not create, and 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.“ Under § 101 of the Copyright Act, a painting or drawing  existing in a single copy is indeed a work of visual art, and thus it can be argued that VARA applies to the Mural.

However, VARA is not always successfully used by graffiti artists in a court of law. In 2013, New York City graffiti artists claimed in the Eastern District of New York (EDNY) that a realtor about to destroy the 5Pointz buildings in Queens, on which they had painted several of their works, would thus violate VARA, as destroying their work would be prejudicial to their honor and reputation. But Judge Block from the EDNY was not convinced, noting that Plaintiffs knew that the  buildings were intended to be demolished, and that they therefore had “created their own hardships” when painting on a support they knew was doomed (the case is Cohen v. G&M Realty LP).

In our case, the possible VARA issue was not the destruction of the support, but the alteration of the signature, which could possibly prevent the artists to claim authorship of the Mural. However, Plaintiffs chose not to argue that Defendant violated their rights under VARA.

Signature as Copyright Management Information

Instead, they claimed that the signatures on the mural constitute copyright management information (CMI), which is protected by § 1202 (b) of the Copyright Act, under which no person can remove or alter any copyright management information without the authority of the copyright owner or the law.§ 1202(c) lists “[t]he name of, and other identifying information about, the author of a work” as CMI.

For the Plaintiffs, Defendant intentionally removed this information “with the intent to induce, enable, facilitate, or conceal an infringement of Plaintiff’s right under the [Copyright] Act“ and, in some pieces of the Graffiti Collection, even “replaced such information with false, altered and inaccurate copyright management information” (amended complaint at 49).

Defendant argued that section 1202 does not protect signatures. However, as it did not cite any authority for that proposition, this argument failed to convince the court, noting that “a signature seems to be the exact type of information that would identity the author of a work” and, as such, are within the scope of  § 1202(c)(2).

Defendant also argued that, as § 1202 was enacted as part of the Digital Millennium Copyright Act (DMCA), some technological process must be used to place or remove the signature, and that it was not the case here. However, the court cited several cases from courts belonging to the Ninth Circuit which had found signatures not in digital form to be CMIs. Therefore, the CD California denied Defendant’s motion to dismiss Plaintiff’s cause of action for violation of § 1202 of the Copyright Act. The suit will now proceed.

Thursday, 12 February 2015

French Mayor Sued by Artist for Repainting Fountain Without Authorization

A French sculptor is suing the mayor of Hayange, a French town in Lorraine, for having repainted one of his works without authorization. The sculptor filed suit in Nancy last week, seeking 10,000 Euros in moral damages.  

Alain Mila created a fountain, composed of a rectangular natural granite stone block, which stands in a small pool and is pierced in the middle by a round conduit carrying out splashing water over a big egg. The work has been publicly displayed in Hayange since 2001, after it was bought by the then socialist mayor and mayoral team.

De Gustibus…

The newly elected Front National (FN) mayor of the town, Fabien Engelman, found the fountain quite ugly (“affreuse”) and he took the matter into his own hands last July. He had the egg repainted in baby blue and the fountain pool repainted in a darker shade of blue. The mayor was quoted in a local paper explaining he wanted to “cheer up the town” and that the town  had also repainted the barriers to that effect…

As the Front National represents itself as a patriotic, France above all kind of party, one wonders what may have triggered the choice of baby blue for an egg. I do not know of any French chicken producing blue eggs, and robins are not common in France. Alain Mila, the creator of the sculpture, noted that one of the colors used to repaint the fountain was similar to the color of the Front National logo. Indeed, the extreme-right party favors  blue, especially navy blue, which allows for a play on the words “Bleu Marine,” Marine being the first name of the current head of the FN, Marine Le Pen.

The office of Aurélie Filippetti, who was at the time French Minister of Culture, issued a statement about the painting of the fountain, writing that:

This is a clear violation of the moral right and the basic rules of the Code of Intellectual Property and protection of patrimony. This incident is indicative of the cultural policy concepts of the elected officials of the Front National, which calls for greater vigilance. Aurélie  Filippetti is surprised that one can decide to "paint a work so it is more decorative" in defiance of its creation and of the crafts trade which are  entitled to expect, on the part of those responsible for  enforcing the law, respect for their rights and for the integrity of their work. The Minister of Culture and Communication recalls that works of art belonging to the State public domain or to public authorities are inalienable and cannot be sold. Consequently, these works cannot be modified or even moved, let alone destroyed without the permission of the artist or his successors in title. They cannot in any case be sold.”

The mayor then ordered the paint to be removed, but the restoration was not quite finished, and the stripping of the paint even damaged the work. Negotiations between the mayor and the artist did not lead to an agreement, and Mr. Mila filed suit.

Droit Moral
Mr. Mila deplored this act in the press, saying that it was an attack on his works and his personal values.  

Indeed, article 121-1 of French Intellectual Property Code (FIPC) provides that the author has a moral right over the respect of his work. This right is “attached to his person” and so it is a personal right. However, the law does not directly provide for compensation.  Article 6bis of the Berne Convention also provides authors the right “to object to any distortion, mutilation or other modification of, or other derogatory action in relation to… [the] work, which would be prejudicial to his honor or reputation.”  French law has a larger scope than article 6bis, as the changes made to the work do not have to be proven prejudicial to the honor or reputation of the author.

French courts have regularly found that the moral right of an artist has been infringed because of changes made without authorization. Such changes found to be illegal were adding a too brilliant varnish on a painting or using tacky colors to restore a painting. I have not found the complaint in our case, but I have found a November 28, 1988 case from the Tribunal administratif of Montpellier where the court found that a town which had destroyed a monumental sculpture without the consent of its creator was liable for this action, and sentenced it to damages.  

I believe that Mr. Mila is likely to prevail in his claim, and I will keep us posted on further developments. 

Image is courtesy of Flickr user Calsidyrose under a CC BY 2.0 license

Monday, 9 February 2015

The CopyKat - The Grammy's Special

Sam Smith
Sam Smith, the big winner at the 57th Grammy Awards in the USA last night, has told CBS News that he had never even heard Tom Petty's 1989 I Won't Back Down, even though he and his co-writers Jimmy Napes and William Phillips settled a copyright dispute over similarities. He told CBS News host Ian Hanomansing that the similarities with his 2014 hit single Stay With Me and Petty's song were completely coincidental saying "It was a complete accident," adding "I am 22 years old ... I've never listened to that song". Petty posted a statement to Facebook saying he held no grudge towards the young singer saying "About the Sam Smith thing. Let me say I have never had any hard feelings toward Sam .... All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by. Sam's people were very understanding of our predicament and we easily came to an agreement". Smith said Petty also wrote a letter directly to him, reiterating that he understood what had happened, which he thought was really kind. Smith's Stay with Me won both Record of The Year and Song of the Year at the Grammys.

Hot on the heels of the U.S. Copyright Office's study into licensing in music, Representative Jerrold Nadler, a New York Democrat who has been seen as a longtime friend to the entertainment industry, spoke at the annual Entertainment Law Initiative luncheon in the run up to the 57th Grammy Awardss, about challenges facing music interests in Washington. Referring to copyright law as a "broken record" that's out of touch with the current industry. "Despite the fact that Congress wrote the law, members [of Congress] today scratch their heads and struggle to make sense of it," he was encouraging, but had a stern message for the industry: get yourself on the same page if you want to accomplish anything - saying I implore you ..... When it comes to legislation, the issues are too important and the opposition too powerful for you to win as a divided community.” Nadler also commented that laws should be "technology-neutral"  adding that doing the right thing is complicated "when you can't predict what happens next — we risk getting a more fragmented system."  More comment on the Copyright Office's report here and More on Nadler's talk on Billboard here.

And Recording Academy president Neil Portnow used his speech during the 57th Grammy Awards (dominated by the above mentioned Brit soul singer Sam Smith who won 4 gongs) to announce a Creators Alliance designed to bring the nation's music professionals together to lobby for copyright reform saying "One of the missions of the Academy is advocacy" and "We're uniquely positioned to represent the interests of the creative community.The coalition is designed both to advise policymakers on establishing what it considers fair royalty rates and to educate artists and other creative professionals on how to advocate for their rights and needs.

And more .......  Marty Bandier, head of the world's biggest music publisher Sony/ATV, used his reciept of  President's Merit Award at the Recording Academy's annual Pre-Grammy Gala in LA this weekend to argue that songwriters and publishers have been given an unpalatably small portion of the digital music pie.  Pointing out that  "songwriters have never received the credit they deserve. This is particularly the case today when something like 95% of the songs on the Billboard Hot 100 chart are written in whole or part by someone other than the performer. A songwriter doesn't share lucrative touring revenue and they don't do brand deals. Their entire livelihood is reliant on the income from the song and that proposition is now under threat in a way that it has never been before" he added "The music industry is changing in ways that I could never have imagined even just a decade ago; it is exciting for us that this has resulted in music lovers having new ways to listen to music as they move from CDs and digital downloads to streaming services. But it is also the case that songwriters are not being adequately compensated for their creations in today's digital world. Their songs are the very reason these services exist; their songs are why we are all here tonight. As the saying goes, it all starts with the song" (a view shared by BASCA).

And still Grammy related but only becaquse this item came out of yet another Grammy related shindig  .... a songwriter's view on cover versions. Impotrtant when that songwriter is none other than Bob Dylan. Whilst most countries have a 'statutory' licensing scheme that allows recording artistes to record any song they choose, without the direct permission of the songwroter(s), provided they pay the appropriate royalty for sales and uses, some are always not happy with that. Indeed the Eagle's Don Henley went public, explaining that to him his songs are personal and he disnt want anyone sampling them or even re-recording them without his permission. But Bob Dylan, giving a 20 minute speech for the Radio Academy, touched on how all music is derivative, and made it clear that much of his eaerly success was because other bands had covered his songs saying "I also have to mention some of the early artists who recorded my songs very, very early, without having to be asked. Just something they felt about them that was right for them. I've got to say thank you to Peter, Paul and Mary, who I knew all separately before they ever became a group. I didn't even think of myself as writing songs for others to sing but it was starting to happen and it couldn't have happened to, or with, a better group. They took a song of mine that had been recorded before that was buried on one of my records and turned it into a hit song. Not the way I would have done it — they straightened it out. But since then hundreds of people have recorded it and I don't think that would have happened if it wasn't for them. They definitely started something for me." And Henley's fellow Eagle Glenn Frey might be more in the Dylan camp: noting in a speech inducting Linda Ronstadt into the Rock and Roll Hall of Fame in 2014: "we became friends, and in the spring of 1971, she hired me and a singing drummer from Linden, Texas, named Don Henley to play in her back-up band. From the first rehearsal, I felt we were working on a style of music none of us had ever heard before. Two years later, people called it “country-rock.” While touring with Linda that summer, Don and I told her that we wanted to start our own band, and she, more than anyone else, helped us put together the Eagles. That’s right. And later, she gave our careers a big shot in the arm by recording our song, ‘Desperado.’ "  More about inspiration here.