Paris Court Denies Copyright Protection to Jimi Hendrix Photograph

Gered Mankowitz is a British photographer who photographed many famous musicians such as Mick Jagger and Annie Lennox. He took several photographs of Jimi Hendrix in 1967. One of these photographs represents the musician, wearing a military jacket, holding a cigarette and puffing a cloud of smoke while looking at the photographer. An original print recently sold at auction for £2,750.

This photograph was used without authorization in 2013 for an advertising campaign by Egotrade, a French electronic cigarette company. The ad showed Jimi Hendrix holding an electronic cigarette and the “Egotabaco” brand was printed on the ad. 

Gered Mankowitz and Bowstir Ltd, the company to which Mr. Mankowitz has assigned his patrimonial rights to the photography, filed suit in France. Bowstir claimed copyright infringement and Mr. Mankowitz claimed droit moral infringement. On May 21, the Paris Tribunal de Grande Instance (TGI), a court of first instance, ruled that the Jimi Hendrix photograph could not be protected by French intellectual property law, as it was not original.

Ceci n'est pas une oeuvre originale pour le TGI

French intellectual property law does not provide a definition of “originality.” Article L. 111-1 of the French Intellectual Property Code provides that “[t]he author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive intangible property right enforceable against all. This right shall include attributes of intellectual and moral attributes as well as patrimonial attributes.” Article L. 112-1 specifies that the law “protects the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose.”

The TGI cited the European Court of Justice (ECJ) Eva Maria Painer. v. Standard Verlags case, where the Court had discussed the originality of a picture taken by a school photographer. For the ECJ, which the TGI cited verbatim,

“[a]s stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices. … As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production. In the preparation phase, the photographer can choose the background, the subject’s pose and the lightening. When taking a portrait phoograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the ones he wishes to adopt or, where appropriate, use computer software. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’” (ECJ 88-92).

Indeed, Recital 17 of Directive 93/98/EEC states that a photograph is original “if it is the author’s own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account.” Article 6 of the same Directive states that photographs are original if “they are the author’s own intellectual creation.” This directive was repealed by Directive 2006/116/EC, of which Recital 16 reprises the same words than Recital 17.

The TGI then examined the Jimi Hendrix photograph. Gered Mankowitz had explained to the court that

“this photograph of Jimi Hendrix, as extraordinary as it is rare, succeeds in capturing a fleeting moment of time, the striking contrast between the lightness of the artist’s smile and the curl of smoke and the darkness and geometric rigor of the rest of the image, created particularly by the lines and angles of the torso and arms. The capture of this unique moment and its enhancement by light, contrasts and the narrow framing of the photograph on the torso and head of Jimi Hendrix reveal the ambivalence and contradictions of this music legend and make the photograph a fascinating work of great beauty which bears the stamp and talent of its author.”

This argument did not convince the TGI as Mr. Mankowitz,

“as doing so, satisfied himself by highlighting the aesthetic characteristics of the photography which are distinct from its originality which is indifferent to the merit of the work, and does not explain who the author of the choices made regarding the pose of the subject, his costume and his general attitude. Also, nothing [in this argument] allows the judge and the defendants to understand if these elements, which are essential criteria in assessing the original features claimed, that is, the framing, the use of black and white, the light decor meant to highlight the subject, and the lighting being themselves typical  fora portrait photography showing the subject facing, with his waist forward, are the fruit of the reflection of the author of the photograph or the subject, and if the work bears the imprint of the personality of Mr. Mankowitz or of Jimi Hendrix.”

Since the judges are therefore not able to appreciate whether this photograph is indeed original, the TGI ruled hat the photography lacked the originality necessary for its protection by French law, and that “the failure of the description of the characteristic elements of the alleged originality also constitutes a violation of the principle of defense rights.” The TGI thus concluded that Mr. Mankowitz had no intellectual property rights over the photograph.

By doing so, the TGI did not deny that this particular photography of Jimi Hendrix is not original. Rather, the court was not convinced that originality of the work was the result of choices made by Mr. Mankowitz. This case is less about what is an original work than how to prove that a work is indeed original.

As such, this ruling should give pause to French IP practitioners defending the rights of a photographer, as they must now prove why the author chose the different elements of a photograph and how these choices reflect his personality in such a way that the work is original. However, the case will be appealed, and so the debate on what is an original work, and how to prove, it is still ongoing in France.

The CopyKat - gazing across the pond

A U.S. judge in California has allowed a class action lawsuit to proceed against satellite-radio company Sirius XM Holdings Inc over the payment of royalties for pre-1972 tracks. The ruling by U.S. District Judge Philip Gutierrez marks another win for members of the 1960s band the Turtles, known for the hit "Happy Together," and means the company could face claims from a broader group of artists. "Sirius XM treats every single owner of a pre-1972 song the same, namely it doesn't pay them, so it was appropriate for this court to grant class certification," said Henry Gradstein, attorney for Flo & Eddie Inc, a company controlled by founding Turtles members Howard Kaylan and Mark Volman. Sirius XM had argued against certification because it said damages would be difficult to calculate accurately for different members of the class. Gutierrez rejected that argument saying "a class action is superior to individual litigation to the fair and efficient adjudication of the present controversy." More here.

In Jamaica, The House of Representatives has started to debate amendments to the Copyright Act to strengthen legal protection for creators of intellectual property.  Investment, Industry and Commerce Minister, Anthony Hylton opened the debate on the Copyright (Amendment) Act, 2015. Among some of the proposed changes is the extension of the rights of companies to their work from 50 to 95 years. the proposed amendments also seek to provide certain exemptions that will give blind and visually impaired people greater access to copyrighted work. More from the Gleaner here.

Back in the USA, Techdirt has a fairly damning review of the actions of 'copyright troll' Malibu Media. Techdirt tells us "Federal district court judge Timothy Black appears to have had enough of Malibu Media and its copyright trolling practices. In two separate cases this week, Judge Black issued "orders to show cause" (more or less judicial language for "I think you've done something really bad and here's your last chance to show me otherwise) that go beyond the usual level of "Hey, it appears you've been acting naughty" to a full blown recitation of all of Malibu Media's questionable practices". Much more here.

The U.S. National Music Publishers' Association (NMPA) has filed a lawsuit in the US District Court for the Southern District of New York, alleging copyright infringement against Wolfgang’s Vault, which hosts many thousands of hours of live concert recordings which it disseminates on websites such as YouTube, Music Vault, Concert Vault and Daytrotter. The NMPA claims the online live concert audio and video platform does not have proper licensing in place for the content it hosts. The NMPA says "Hopefully, this lawsuit will bring publishers and many iconic songwriters the revenue they deserve for the use of their music.”


And finally, US music collection society BMI has published an analysis of Judge Louis L Stanton's recent decision in the rate court which raised the royalty Pandora had to pay BMI members, noting that the ruling judge clearly stated that, even though the directly negotiated deals between publishers and broadcasters were put on hold by the courts, the "direct licenses between Pandora and Sony and Universal for the 2014 calendar year were the best benchmarks because they are the most recent indices of competitive market rates". The big publishers wanted to pull from the collective licensing system in the USA for digital rights but the courts decided their relationship with ASCAP and BMI was 'all or nothing' - all in or all out. Judge Stanton decided that Pandora, the digital radio service, must pay 2.5 percent of its revenue to BMI, which collects public performance royalties on behalf of songwriters and publishers. More from the Hollywood Reporter here.

Obama administration favour Oracle's copyright position in API battle

In the US, the Obama administration has sided against Google and said the U.S. Supreme Court should not hear the company's appeal in a case against Oracle with wide implications for the technology industry, according to a court filing. The case involves how much copyright protection should extend to the Java programming language. 

At issue in Oracle v. Google is whether Oracle can claim a copyright on Java APIs and, if so, whether Google has infringed these copyrights.  APIs (Application Programming Interfaces) are, generally speaking, specifications that allow programs to communicate with each other.

Overturing Judge William Alsup  the Northern District of California who ruled that APIs are not subject to copyright, the  U.S. Court of Appeals ruled that the Java APIs are copyrightable, with the appellate court saying "We conclude that a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection" but leaving open the possibility that Google might have a fair use defense. Its important - Google used Java to design its Android smartphone operating system, and unsurprisingly Googe then appealed to the U.S. Supreme Court. Google maintained that the code at issue is not entitled to copyright protection because it constitutes a "method of operation" or "system" that allows programs to communicate with one another.

In January SCOTUS asked the Obama administration for its opinion on whether it should take the case because the federal government has a strong interest.

Previously the Electronic Frontiers Fooundation (RFF) had filed an amicus brief on behalf of a group of 32 prominent computer scientists which urged the Supreme Court to reverse the appeals court decision saying "The Federal Circuit’s decision poses a significant threat to the technology sector and to the public" and "If it is allowed to stand, Oracle and others will have an unprecedented and dangerous power over the future of innovation. API creators would have veto rights over any developer who wants to create a compatible program—regardless of whether she copies any literal code from the original API implementation. That, in turn, would upset the settled business practices that have enabled the American computer industry to flourish, and choke off many of the system’s benefits to consumers."

Now in the latest court filing, U.S. Solicitor General Donald Verrilli said Google's argument that the code is not entitled to copyright protection lacks merit and did not need to be reviewed by the Supreme Court. Verrilli added that Google had raised important concerns about the effect that enforcement of Oracle's copyright could have on software development, but said those issues could be addressed via further proceedings on Google's separate "fair use" defence in San Francisco federal court.

http://gadgets.ndtv.com/mobiles/news/obama-administration-asks-us-top-court-to-decline-google-copyright-appeal-vs-oracle-696634

https://www.eff.org/cases/oracle-v-google

http://arstechnica.com/tech-policy/2015/05/white-house-sides-with-oracle-tells-supreme-court-apis-are-copyrightable/

The Fall and Rise of Touch Sensitive

Last week saw the handing down of yet another case from the Intellectual Property Enterprise Court, presided over by Miss Recorder Michaels sitting as a Deputy Enterprise Judge, which reminds us that as long as there is a music business, there will be disputes over song writing credits to keep the courts and lawyers in work. The second thing we learn, or perhaps have confirmed for us, is that you can't always trust the credits which appear on the liner notes of albums. 

The case is called Minder Music Ltd and Julia Adamson v Steven Sharples, and involves a song entitled Touch Sensitive by the post punk band The Fall. The first claimant, Minder Music, is a music publisher to which publishing rights in the song were assigned by the band's lead singer and founding member Mark E Smith. The second claimant is Julia Adamson (formerly known as Julia Nagle), one time member of The Fall and for the purposes of this case, the co-writer with Mark Smith of the original version of the song Touch Sensitive. Smith wrote the lyrics and owned a one third share, and Adamson who wrote the music, a two-thirds share, in the publishing and performing rights in the original song which was first performed live on the John Peel Show in March 1998. That much was not in dispute.

In December 1998 the band agreed to release an album through Artful Records. This album was eventually to be entitled The Marshall Suite, but the early recording sessions did not go well and so the defendant, Mr Sharples, was brought in to produce the album. The exact circumstances of how and under what terms Mr Sharples was brought in were one of the issues the court had decide upon. This part of the dispute centred on an alleged verbal agreement between Mr Sharples and a Mr McMahon who was then working for the band as their PR agent and also had connections with Artful Records. This agreement was referred to as the Canalot Agreement as it was said to have taken place at Canalot Studios in Kensal Green, West London in mid January 1999. Mr Sharples's version of events was that Mr McMahon held himself out to be the band's manager and offered Mr Sharples not only the job of producing the album, but also of re-writing the original song, for which he would receive a one third interest in the copyright. It was not disputed that Mr Sharples's work as producer did result in a new version of the song being created and this was referred to as the 'Album version'. What the court had to decide was whether the contribution of Mr Sharples to both the music and lyrics of the Album version was significant enough to entitle him to a share in the copyright of each part. But before getting to that issue, the court had one other matter to resolve. 

Following the recording of the album Mr Sharples was credited on the sleeve notes along with Mr Smith and Ms Adamson, as the writer of the Album version. This appeared to have been arranged by Artful Records, and Mr Smith and Ms Adamson denied being consulted about this. However in the event, little turned on this detail. Mr Sharples was also credited as the producer, as well as the author or joint author of some of the other tracks on the album, but these latter credits were not  in dispute in the present case. The album was released later in 1999 and it was reviewed favourably by The Guardian. 

At about the same time, Mr Sharples wrote to the Performing Rights Society (PRS) to register his interest in the Album version, but it appears this claim was misplaced and no action appears to have been taken by PRS. It was not until some five or six years later that Mr Sharples decided to chase up his claim, and this led to the PRS putting the matter into dispute and holding back payment of any more royalties, pending resolution. 

By this point Mr Smith had assigned his 33% share of the publishing rights to Minder Music, and so they became involved in the dispute over the unpaid royalties. Minder Music's co-owner John Fogarty strongly resisted Mr Sharples's claim, as did Ms Adamson. Matters dragged on for some time until August 2013 when Ms Adamson and Mr Sharples signed a settlement agreement in which Ms Adamson transferred half of her two-thirds interest in the song to Mr Sharples, meaning that Minder Music, Ms Adamson and Mr Sharples would each have a 33% interest in the accrued royalties. However Minder Music, who were not party to the Settlement Agreement, objected on grounds which were not specified, and so PRS did not release the royalties. Minder Music sought to bring matters to a head and issued proceedings against Mr Sharples, seeking declaratory relief that the copyright was shared 33% by Minder Music and 66% by Ms Adamson, and that Mr Sharples owned no part of the copyright. They also sought a inquiry as to damages.

Mr Sharples denied the claim, and relied on the Canalot Agreement, the Settlement Agreement and his claim of joint authorship of the Album version in support of his defence.

The court thus had decide 4 main issues:

• Was the Canalot Agreement valid?
• Was the Settlement Agreement unconscionable?
• Did Mr Sharples's contribution to the music and lyrics of the Album version amount to a significant contribution according to the test set by Deputy Judge Williamson QC in Bamgboye v Reed?
• If the answer to question 3 is yes, what is the amount of his share in the royalties?

The Canalot Agreement

The court found that this agreement was void because Mr McMahon was not authorised either in fact or impliedly, to act as agent for the band collectively or for Mr Smith and Ms Adamson as individuals.

The Settlement Agreement

Ms Adamson had alleged in her claim that she was pressured into signing the agreement by mr Sharples who took advantage of her straitened financial situation at the time, and that thus the bargain was unconscionable. The court declined to set aside the agreement because the evidence before it showed no undue pressure and indeed in part showed that Ms Adamson actively sought the agreement as a way of resolving her financial problems, through the hoped-for release of the accrued royalties.

The Lyrics

The court undertook an analysis of the differences in the lyrics as between the Original version and the Album version and found that these changes were insignificant, and even if this was wrong, such changes as were made were more than likely to be attributable to Mr Smith, not Mr Sharples.

The Music

Once again the court looked at the differences between the Original version and the Album version and found that, here,  there were some minor but significant changes especially in the composition and arrangement of a new string section and these were attributable to Mr Sharples. However his contribution was small, and in the court's view only entitled him to a 20% of the copyright in the music. Since Mr Sharples had not sought any other relief by way of counterclaim, no order was made as to damages, although this was left open by the judge.

Comment

As at January 2012 PRS was holding some £12,000 in accrued royalties (for both lyrics and music), and one might imagine this figure could have increased by around 50% or more since then, given that Wikipedia asserts that "Touch Sensitive was used in the UK as a soundtrack to an advert for the Vauxhall Corsa"* although no date is given for when that happened. And so a 20% share in the music royalties possibly represents around £2,000 to date. I rather suspect that the defendant's legal costs will eat up most of that. 

You can listen to a version the song here. I have no idea which version this is, but I presume it is the Album version as found on the Marshall Suite album, which sadly is no longer available.   See comment below.

* Update. You can view the Vauxhall Corsa advert here. I understand the advert came out in 2002 and so the licence fee paid by Vauxhall is probably not reflected in the figure of £12,000 noted above as that only represents the period 2005-2012, while PRS were holding the royalties in a suspense account.

Section 97A - now it's ebooks

It has been reported that yesterday (in a decision that does not yet appear to be published) the High Court issued a further set of orders under section 97A of the CDPA on the application of a group of book publishers represented by the Publishers Association (with support from the Association of American Publishers)

According to the Publishers' press release  the 7 web sites between them claim to hold around 10 million ebook titles between them.  They had been the recipients of over a million take down requests (and Google had received over 1.75 million take down requests for URLs on the offending sites).

The names of the site are  listed on the press release and the 5 major ISPs against whom the orders have been made have 10 working days to block access [This blog has chosen not to repeat the list of sites as it doesn't seem appropriate to promote the sites readers both in the UK and beyond - and indeed some of those with aggressive interpretations of Svennson  and BestWater might consider that simply listing the sites constitutes communication to the public!]

A clearly very happy Chief Executive of the PA, Richard Mollet is quoted as saying:

“A third of publisher revenues now come from digital sales but unfortunately this rise in the digital market has brought with it a growth in online infringement. Our members need to be able to protect their authors’ works from such illegal activity; writers need to be paid and publishers need to be able to continue to innovate and invest in new talent and material.

“We are very pleased that the High Court has granted this order and, in doing so, recognises the damage being inflicted on UK publishers and authors by these infringing websites.”

Section 97A has now been used in respect of movies, music, live TV and eBooks - we await with interest the next sector to bring the weapon into their armoury against infringers.

A new case for Sherlock Holmes

Illustration by Howard K. Elcock

The Estate of Sir Arthur Conan Doyle is suing Hollywood film producers over a soon-to-be released blockbuster movie which follows Sherlock Holmes during his retirement. The author's Estate, which has been involved in several high-profile legal battles, now claims that the plot of the new film "Mr Holmes" infringes on the Conan Doyle's short story, "The Adventure of the Blanched Soldier" published in 1926 in Strand magazine. Defendants to the action include Miramax studio, film distributor Roadside Attractions, and director Bill Condon, who previously directed "Chicago" and "Dreamgirls".  The movie - which stars Sir Ian McKellen as the fictional detective - is due to be released in the UK and the U.S in July. 


The complaint, filed in New Mexico, says: 'Reviews of early screenings, together with trailers released in the United States, reveal that the motion picture uses the same elements from Conan Doyle's copyrighted stories.' The film is based on the book "A Slight Trick of the Mind" and  the Author of the book Mitch Cullin,  and his publisher Random House, are also named as defendants.

A Slight Trick of the Mind is set in 1947 and the long-retired Sherlock Holmes, now 93, lives in a remote Sussex farmhouse with his housekeeper and her young son: "He tends to his bees, writes in his journal, and grapples with the diminishing powers of his mind. But in the twilight of his life, as people continue to look to him for answers, Holmes revisits a case that may provide him with answers of his own to questions he didn’t even know he was asking–about life, about love, and about the limits of the mind’s ability to know."  

Sir Ian as Sherlock Holmes

The alleged similarities include that 'Watson has remarried and moved out of Baker Street'. The Estate also suggests that the details of Holmes' retirement are developed from elements of the final 10 stories; another element is that Holmes possesses 'a personal warmth and the capacity to express love for the first time' saying 'Conan Doyle also changed Holmes in later life by giving him a gentleness and kindness Holmes did not possess in public domain stories,'

Holmes and Watson appeared for the first time in print in 1887 and all of the works are now in the public domain, except for the last 10 in the U.S. These were published from 1923 to 1927. In June 2014 the US Court of Appeals for the 7th Circuit issued its decision in Leslie Klinger v Conan Doyle Estate, in which upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that author Leslie Klinger was free to use material in the 50 Sherlock Holmes stories and novels that were no longer protected by copyright. Writing on behalf of the Court, Circuit Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain, its story elements - including its characters - slso do. Works derived from earlier works whose copyright has expired may nonetheless be protected, but copyright will only extend to the "incremental additions of originality contributed by the authors of the derivative works." 

Last year, the U.S Supreme Court refused to hear an appeal in the matter by the Estate, meaning that that only the final 10 volumes have copyright protection until December 31, 2022.  

A useful comment on the new claim can be found here http://www.forbes.com/sites/davegonzales/2015/05/31/the-strange-case-of-mr-holmes-vs-us-copyright-law/ which notes "In the trailer for Mr. Holmes, it is very clear that Holmes has taken up in Sussex and at one point starts writing his own stories to get the history straight. Both of these characteristics only exist in the latter stories, most notably 1926’s “The Adventure of the Lion’s Mane,” which is written from Holmes’ perspective and takes place during his retirement in Sussex. Complicating the issue, two public domain stories reference Sherlock’s Sussex retirement and beekeeping practices, “His Last Bow” and “The Adventure of the Second Stain.”

Of Copyright and Spiders

In early 2006 HRH the Prince of Wales successfully sued Associated Newspapers for breach of confidence and infringement of copyright after the Mail on Sunday published extracts from Prince Charles's journals recording his impressions on a trip to Hong Kong (see IPKat posts here and here). Naturally on this blog we are only concerned about the copyright aspect of that case.

It was not disputed that Prince Charles was the author of the journals. However Associated Newspapers tried to argue that he was not the owner of the copyright, and that in fact Crown Copyright existed in the journals. The trial judge (Blackburne J) dismissed this claim fairly quickly, accepting that Prince Charles was not a servant of the Queen or of her government, and that although he might have been deputising for the Queen during the visit, his journals did not form part of his state duties and therefore were not subject to Crown Copyright. The judge then went on in turn to reject the defence arguments that the newspaper extracts were not a substantial part of the original works, that there was a fair dealing defence of reporting current events or alternatively the newspaper was dealing fairly with the works for the purposes of criticism or review. The problem with the latter defence, as the judge pointed out, was that it required that copies of the original work had previously been issued to the public, and that was obviously not the case with the Hong Kong journal, given the other part of the claim, namely breach of confidence. And finally, in a somewhat desperate attempt to find some defence against the claim of copyright infringement, the defence tried to invoke the public interest defence under section 171(3) of the Copyright Designs and Patents Act (CDPA). Once more, the trial judge was unpersuaded. Although Associated Newspapers appealed against the decision at first instance, their appeal was dismissed and Prince Charles won the injunction he was seeking to prevent Associated Newspapers from publishing any more extracts from his journals.

So why have I dug up this case from nine years ago? Well readers in the UK will be aware that the Guardian newspaper recently won an extended 5 year battle which went all the way to the Supreme Court, to have a number of Prince Charles's letters (the so-called Black Spider memos) which had been sent to government ministers, released under the Freedom of Information Act. Although several different arguments were advanced as to why they should not be released, copyright was not one of them. Why not, given the success of this approach in the earlier 2006 case?

The simple answer is: section 50(1) of the CDPA 1988. This subsection says:

50 Acts done under statutory authority.

(1) Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright.

So because the Freedom of Information Act authorises (indeed requires) that certain information is released to a member of the public, assuming the request complies with the necessary criteria, any copyright in the materials divulged is not infringed by the release, even where the copyright owner has not given permission for it to be issued to the public. The only specific protection afforded by the FoI Act is that personal data, as defined by the Data Protection Act, is exempt from disclosure.

Section 50 CDPA is both powerful yet rarely cited in either the commentaries or in cases before the courts. It effectively gives Parliament the power to bypass copyright protections in circumstances where some other statutory aim is sought, without necessarily making that fact explicit when the new legislation is undergoing scrutiny in Parliament. This was the case with the Freedom of Information Act which contains but a single reference to copyright buried away in a 2004 amendment made necessary by the devolution of various powers to the Scottish Parliament.

Is Peggy Guggenheim’s Collection a Work of Art Protected by French Copyright?

Daily newspaper Le Monde reported recently about an intriguing case unfolding in the Paris Court of Appeals. The Guardian reported about the case here. The Paris court will have to decide whether the art collection Peggy Guggenheim spent years building should be considered a « œuvre de l’esprit » and, as such, be protected by the French droit d’auteur.

Peggy Guggenheim was an American heiress who spent all her life acquiring and building a contemporary art collection. She donated it, along with her Venetian palace, the Palazzo Venier dei Leoni, to the Solomon R. Guggenheim Foundation, which was created in 1937 by her uncle. Peggy Guggenheim’s collection is now shown at the Palazzo Venier dei Leoni, where Ms. Guggenheim’s ashes are buried. In her autobiography, Peggy Guggenheim expressed her desire to see her collection remain intact in Venice, and that nothing should be touched.

Her heirs filed a suit against the Foundation in France, where they live, claiming that the way it is now presenting the collection distorts the way Peggy Guggenheim meant to have it seen. They argue that the collection is not shown in its totality, that the garden has been modified, and that the Palace now boasts a cafeteria, which makes the Foundation a mere extension of the Guggenheim museum. They also consider that organizing parties in the garden where Peggy Guggenheim is buried is akin to violating her tomb.

The Paris Court of the first instance, the Tribunal de Grande Instance, rejected their claim in July 2014 because of res judicata. Indeed, the heirs had already filed suit against the Foundation under the same claim in the 90’s. The heirs had lost, but both parties found an agreement outside the courtroom. The heirs now claim that this agreement has not been respected and again filed suit against the Foundation.

Can an Art Collection be Protected by Intellectual Property?

It remains to be seen if the Court of Paris will debate this issue, as the judges may very well consider that the case has already been judged. If they do consider the case, could French law protect an art collection as a work of the mind?

Article L. 111-1 of the French Intellectual Property Code gives the author of a “œuvre de l’esprit”, a “work of the mind,” exclusive rights over the work. Bernard Edelman, a renowned intellectual property attorney, is representing Peggy Guggenheim’s heirs, and he argued this week that a collection may be considered a work of the mind.

Indeed, the Paris Court of appeals held in 1997 that the “Musée du Cinéma Henri Langlois,” dedicated to the history of cinema, is indeed a work of the mind under French law. It had been entirely the idea of Henri Langlois who had been in sole charge of its design. The Paris Court of Appeals noted in 1997 that:  

“Henri Langlois ha[d] not only selected the objects and movie projections that form this exhibit but also imagined the presentation following an order and an original scenography; in particular, as reported in several excerpts of articles and publications related to the "Musée du Cinéma," Henri Langlois conceived the exhibition as a journey back in time in film history, which he staged in a cinematographic way; it is not a simple and methodical presentation of items relating to the history of cinema, but a resolutely personal creation, expressing both the imagination of Henri Langlois and his own conceptions of history of cinema, and reflecting thus his personality.”

Bernard Edelman had published an article in 1998 about this case, where he noted that the Henri Langlois Museum was particularly original as it was not only a collection of works of arts, but also a collection of objects, such as movie artifacts, and that the collection “invites to a kind of journey, a physical ambulation.” Does the Peggy Guggenheim collection invite visitors to such a journey?

Not in the opinion of Pierre-Louis Dauzier, the attorney representing the Guggenheim Foundation, who is quoted in Le Monde as arguing that "it is undeniable that the collector makes choices, he chooses to buy. Peggy Guggenheim was a muse of the art world, she bought a lot to support artists." But he added that the way she showcased the collection was"very didactic, unoriginal, nothing more than a compilation.” Peggy Guggenheim had "not given an aesthetic sense in which the collection should be presented," an argument which Bernard Edelman disagreed with, as he produced a plan made by Peggy Guggenheim on how the collection should be presented.

The case will be decided in September. 

Image is courtesy of Flickr user John Keogh under a CC BY-NC 2.0 license.

The Age of EU Copyright Reform? An event reminder

On Tuesday 26 May I am organising an event at the London offices of RPC, devoted to discussing everything EU copyright law and policy.

There are a couple of places still available to attend in person this event, which is also possible to follow via YouTube live streaming/video.

If you wish to register, just click here!

And here's the programme as it was originally advertised:

What future awaits EU copyright? What are the reform plans (if any) of the EU Commission? What is in the pipeline for the Court of Justice of the European Union (CJEU) in the area of copyright?

These and (many) other questions will be addressed during this 3-hour event that will take place on 26 May 2015 at the London offices of RPC!

***

On 6 May the EU Commission is due to unveil its own Digital Single Market Strategy, which includes plans to reform EU copyright. A draft version of this document has been already leaked. From this it would appear that areas for legislative intervention in the area of copyright are likely to encompass geo-blocking, exceptions and limitations, civil enforcement, and the role of internet service providers. Meanwhile numerous amendments have been presented to the draft Report on the implementation of the InfoSoc Directive, prepared by MEP Julia Reda. Following a vote in the Legal Committee of the European Parliament, her report will be subject to a final vote in plenary in early July.

Whilst the future of EU copyright policy, including possible legislative intervention, is (slowly) unfolding in Brussels, things are as busy as ever in Luxembourg, where the CJEU has been tackling (and will continue to do so) thorny issues such as digital exhaustion, hyperlinking, exceptions and limitations, and e-lending.

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This event will review developments at both policy and judicial levels.

Places are limited (with some tickets available for full time students), so to provide everybody with the opportunity to discuss fully the present and future of EU copyright.

For those who cannot attend in person, it will be also possible to follow the event in either live streaming or at a later time via YouTube.

CDP points are also available!

New Approach to Conflicts between Pre-existing Works and Derivative Works under French Law?

The balance to be struck between the rights of the author of a pre-existing work and those of the author of a work derived therefrom is a recurring and vexing issue in French copyright law.

In theory, there is no balance; rather, the author of the pre-existing work is all powerful.  Section L.113-4 of the Intellectual Property Code provides that the derivative work is the property of its author, subject to the rights of the author of the pre-exsiting work.

It has been held that this means that the author of the derivative work needs the consent of the author of the pre-existing work both at the stage of creation of the derivative work as well as with respect to the various forms of exploitation thereof.  Naturally, such consent is ususally given in exchange for a share of the revenue generated by the derivative work.

Applying the principles to a recent case involving a painter's unauthorized incorporation of photographs into his work, the Court of Appeals had held that the resultant painting constituted an infringing work and ordered its author to pay €50,000 by way of damages to the photographer.

Surprisingly, on May 15th, the French Supreme Court, citing Article 10 (2) of the European Convention on Human Rights (freedom of expression), reversed this ruling, opining that : "in so holding, without explaining in a concrete fashion how the search for a just balance between the competing rights required the order it made, the court of appeals deprived its decision of a legal basis".

It is striking that the Supreme Court explicitly refers to a "just balance" of the competing rights. This new approach, if followed by the lower courts, would limit the power of the author of a pre-existing work.  A finding of infringement and damages would only be awarded after careful consideration of such a balance between his rights and those of the author of the derivative work. 

Link to ruling here

Spotify leak puts streaming royalties in focus

The Verge has published details of the hitherto unknown terms of the January 2011 deal between streaming service Spotify and Sony Music, one of the two big record labels. And it makes for fascinating reading. Perhaps what isn't surprising (given the then near start up nature of Spotify in 2011) is a contract laced with 'Most Favoured Nations' provisions for Sony. The basic deal consists of annual advances paid by Spotify and a 70:30 split of advertising revenues in favour of Sony: On gross revenues the detail shows the actual split of revenue varies from rights owner to rights owner, but labels are usually getting somewhere between 55-60% and publishers 10-15%. The Sony contact unsurprisingly puts the world's second biggest record company at the top end of the range, on a 60% split. 

There are some odd quirks - Spotify seems to have a 15% buffer zone in ad sales which it doesn't have to account to Sony (and therefor cannot be shared by Sony's artistes) to cover out-of-pocket costs paid to unaffiliated third parties for ad sales commissions (subject to a maximum overall deduction of 15 percent "off the top" of such advertising revenues). Sony seems to have its own ad spots it can sell to a value of $9 million annually. How Sony accounts on for the profits from this (and how it pays over any share of advances - if it does at all) to artistes is unknown. These label advances are controversial:  Some artists and managers say they are concerned that the label's demands on digital start-ups have prevented some new services from ever getting to market, which results in a market dominated by one or two main payers - Like Spotify in which both both Universal and Sony are believed to hold equity. But of more concern for artists is what happens to unallocated advance payments and whether larger advances (which labels generally benefit from) push down ongoing royalties - where artistes do share.

The other big question is how much Sony Music gets paid per stream, and well, it’s complicated! Section 10 of the leaked contract shows how Sony Music separated it's label fees into three distinct tiers — the ad-supported free tier, online day passes (which no longer exist), and Spotify’s premium service - and a somewhat complex formula governing payments to Sony. Spotify must pay $0.00225 per minimum stream, but this rises to $0.0025 per stream if growth targets are missed.  But as the Verge says "Even with this contract, it’s still difficult to tell how much artists are getting paid by Spotify. Sony Music is likely getting considerable payouts from Spotify each year, but what it does when it gets that money — and how much of those payments actually make it down to the artists — is still unknown. Some artists have clauses in their contracts to get a larger share of the streaming revenue, and some artists are still operating under CD-era contracts that only give them 15–20 percent of their streaming revenues." But a share of which revenues?

In a related theme - and noting the above splits in gross revenues with labels collecting up to five times as much as music publishers from streaming service revenues - PRS for Music chief executive Robert Ashcroft has delivered a speech at the PRO's 2015 AGM outlining a number of issues which he says have prevented publishers and songwriters getting "fair value" for their work. Among the obstacles highlighted by Ashcroft were the continued battle against piracy, unhelpful safe harbour legislation which has been used by the likes of YouTube to protect their business models (noting "This legislation was not intended to protect those that host, curate and distribute copyright material while claiming to have no knowledge of it on the grounds that their users, and not they themselves, have the knowledge and are responsible for clearing copyright."), and the shift from downloads to streaming, which Ashcroft said is not yet paying enough to songwriters. Music Week have published the whole speech. 

Not Laughing all the Way to the Banc?

Back in last December, Ben told us about the US Ninth Circuit's en banc hearing of the Garcia v Google appeal. Cindy Garcia is the American actress who seems to have been tricked into playing a role in the controversial film entitled Innocence of Muslims, and she appeared for around 5 seconds in a trailer for the film which was posted on Youtube. Her appearance in the trailer earned her a number of death threats, and she took Google (the owners of Youtube) to court to force them to take down the clip, claiming that she owned the copyright in her performance. She lost at first instance, but won on appeal, with Judge Alex Kozinski giving the lead judgment in that first appeal. 

Cindy Garcia in a scene from the trailer

This decision was widely criticised, not only for its idiosyncratic interpretation of the law, but because of the implications of it for movie making in general. If the decision of the Appeal Court was allowed to stand, any actor in a feature film could theoretically hold the producers to ransom by withholding permission to use their specific performance. Unsurprisingly the case was appealed to the full eleven strong panel ('en banc') of judges of the Ninth Circuit, and their decision was handed down today.

The latest appeal court opinion reverses the earlier decision and denies Miss Garcia any copyright in her performance. What's more the court was fairly critical of Judge Kozinski's decision. In particular they were critical of Kozinski's readiness to grant an injunction against Google, despite the fact that this action appears to have constituted prior restraint contrary to the First Amendment. Kozinski, who was also one of the eleven en banc panel of judges, did not take this criticism with a shrug of the shoulders, but instead launched into a robustly worded dissent, in defence of his earlier decision. At times his argument borders on the bizarre: he considers (page 35) that since the majority en banc decision says that an individual actor does not have a copyright stake in a scene in which he or she appears, therefore there is no copyright in the scene whatsoever. He then extends this argument to say that anyone (a 'dastard') who then obtains the footage of the scene before the final film is edited, could then publish it with impunity because at the rushes stage, no copyright exists. He then implies that the en banc decision is based more on the economic interest of Google than on the law "In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won't be a party to it."

But Judge Kozinski does not have a monopoly in dubious reasoning. The lead en banc decision, written by Judge Margaret McKeown, contains the statement "Garcia's copyright claim faces yet another statutory barrier: she never fixed her acting performance in a tangible medium ...". Most UK law students will be aware of a seminal English copyright case from 1900 known as Walter v Lane, in which the House of Lords ruled that the author of an idea does not necessarily need to be the person who actually records the idea in order for copyright to exist in the work. In that particular case, Lord Roseberry, a politician of the time, was making an ex tempore speech, but because a journalist from the Times newspaper was present and recorded the speech in shorthand, copyright therefore subsisted in the speech. It seems that US jurisprudence, at least in the Ninth Circuit, has yet to establish this particular piece of precedence. Clearly Miss Garcia's performance was fixed (how else can it have appeared on Youtube?) and it seems bizarre to think no copyright exists in the video itself. That is an entirely separate matter from whether Miss Garcia has standing to bring a claim of infringment.

But for all these quirks, the en banc decision does appear to be well grounded in law, and also in common sense. Let's see if the US Supreme Court is asked to look at the case!

More on the story from Techdirt here
and the Ninth Circuit's judgment here.