Art Imitating Life?

"The bad gains respect through imitation, the good loses it especially in art" - Friedrich Nietzche

While all art, however good or bad it is, qualifies for copyright assuming that it is original, in many jurisdictions (for instance France and Germany) photography has to meet a certain standard before it can gain the same sort of protection as its fellow artistic works. This was amply demonstrated in the French case of the Jimi Hendrix portrait reported on by Marie Andree here. Even in the USA, the famous case of Bridgeman Art Library vs Corel Corp introduced a caveat when deciding if a photograph per se qualified for copyright protection. The objection rests on the fact that, ordinarily, the camera just records what is in front of it in a mechanical way, much as a photocopier might do. To overcome this objection the photographer may, in some cases, need to demonstrate some special input in the form of choices he or she made over lighting, point of view, cropping etc in order to make the work 'original'. By these criteria most photojournalism would fail to make the grade, and photographic artists of the calibre of Henri Cartier Bresson might well be dismissed as mere snappers, simply because they recorded the scene at the decisive moment. 

 "Photography is not like painting,  There is a creative fraction of a second when you are taking a picture. Your eye must see a composition or an expression that life itself offers you, and you must know with intuition when to click the camera. That is the moment the photographer is creative,  Oop! The Moment! Once you miss it, it is gone forever."  Henri Cartier-Bresson quoted in the Washington Post in 1957.

So it is more than a little ironic that we hear of yet another case of a painting which is a direct copy of a photographic work, which some might term photo reportage. And if the copying had not been spotted, this painting would have been accepted as an original work in the Infopaq sense of being a creation reflecting the spirit and personality of the author, while the work which the artist copied might well have failed to impress the French courts (per the Jimi Hendrix case) as being worthy of copyright.

The latest case concerns a portrait by artist Perry Milou of Pope Francis officially commissioned for the Pope's forthcoming visit to the USA, which it has been revealed is entirely based on a photograph taken by Italian photographer Franco Origlia, to which Getty owns the rights. 

This comes only a few months after the Luc Tuymans case in Belgium and 3 years since the Shepard Fairey Obama Hope poster case, in which the respective artists were found to have infringed the work of photographers.

Whoever coined the phrase, imitation is the sincerest form of flattery clearly wasn't a copyright lawyer.

Copyright Literacy: an update on an imaginative initiative

Here's a guest post from Chris Morrison (Copyright and Licensing Compliance Officer at the University of Kent, Canterbury), which brings us up to speed on an initiative to which this weblog was able to give some small assistance:

Following the notification of the launch of the UK Copyright Literacy Survey in December 2014, Jane Secker from LSE and Chris Morrison from the University of Kent would like to inform readers of 1709 Blog of the survey results and explain their ongoing mission to make copyright engaging, fun and empowering.

The UK Copyright Literacy Survey was part of an international project to explore levels of copyright knowledge amongst library, information and related professionals and is the largest known study of its kind. Thanks to the high level of engagement amongst those in libraries, archives, museums and cultural institutions in the UK we received 613 responses, meaning that our survey had the biggest response out of any of the other participating countries so far. We have published a high level summary of the results and in essence it seems that UK library and information professionals have a relatively high level of copyright literacy compared to other countries. However they still feel they would like to know more about how copyright relates to their day to day responsibilities, and expressed a certain amount of anxiety in keeping up with developments in copyright law and responding to copyright concerns.

We have also recently written a blog post for CILIP explaining why we think copyright education is a fundamental part of digital and information literacy. Digital and information literacies are skills, attitudes and behaviours that allow people to find, evaluate, manage and use information and digital technologies to achieve their personal and professional goals. At the heart of this is an understanding of the ethics surrounding how information can be shared and used. Our blog post mentions the Copyright Card Game that we developed in conjunction with copyright consultant Naomi Korn which is now available as a free, Creative Commons-licensed download from the open education resource repository Jorum. The game has proved very popular with information professionals in higher education and seems to be generating a renewed interest in copyright.

If you would like to read more about the survey and our copyright literacy mission we have posted our slide deck from July’s Northumbria Conference on Performance Measurement in Libraries and will be presenting at the European Conference on Information Literacy in October. We are also expecting to have a paper published in a special copyright/IPR issue of Library and Information Research in September/October 2015.

We would be very interested to hear from anyone who is interested in our research, or feels the same way about the empowering potential of copyright education and would like to join forces. You can send us an email via copyright@kent.ac.uk.

Another consultation from Brussels- anyone for SatCab?

In case anyone [other than the author] was under the impression that the European Commission closes entirely for August and goes en masse on holiday, you are mistaken.

Just to keep us on our toes, the Commission has this week published the latest in a series of consultations arising out of its Digital Single Market initiative (which Eleonora previously covered on 1709 here as well as on the IPKat here).

This time, the topic on the card is 1993's SatCab Directive, or to give it its full title "Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission"

It is, like last year's copyright consultation, a "fill in the box" online questionnaire - the latter, you will recall, created a torrent of thousands of responses generated by interest groups, especially from the "anti-copyright" community.

This topic is likely to be of much more limited interest, focusing as it does on practical experience arising out of the existing Directive.  However, it too has potentially broad implications.

The first part looks at the two core existing sets of provisions in the Directive, first the principle of country of origin for the communication to the public by satellite, then the management of cable retransmission rights.

However, the latter part of the questionnaire extends into the question of whether it might be possible to extend the "country of origin" principle to cover other types of exploitation beyond satellite - including a number of different scenarios:

• "TV and radio transmissions by other means than satellite (e.g. by IPTV, webcasting)"
• "Online services ancillary to initial broadcasts (e.g. simulcasting [note to Brussels - precisely how is this something different from the first category of TV and radio transmissions by other means..."], catch-up TV).
•  Any online services provided by broadcasters (e.g. video on demand services [note to Brussels - is that video on demand services other than catch-up which is in category 2?]).
• Any online content services provided by any service provider, including broadcasters. [so a VOD service provided by a broadcaster is to be considered different from one provided by a cable operator which is different again from one provided by an internet only business like Netflix... as a matter of copyright?]

As indicated by the asides above, this blogger has some concerns about whether the Commission will be able to define the way forward, given that it appears to have a limited understanding of the technologies involved in modern audiovisual world.   

The Commission also asks some questions which are potentially fiendishly complex, such as "How would the "country of origin" be determined in case of an online transmission? Please explain."

Well now is your chance to influence them and answer all of these questions... the questionnaire (in English, French and German) can be found from this introductory page.

PRS for Music begins legal action against SoundCloud

PRS for Music has written to it's members saying it is beginning legal action against online music streaming platform SoundCloud after "five years of unsuccessful negotiations". The PRS says:

"SoundCloud actively promotes and shares music. Launched in 2008, the service now has more than 175m unique listeners per month. Unfortunately, the organisation continues to deny it needs a PRS for Music licence for its existing service available in the UK and Europe, meaning it is not remunerating our members when their music is streamed by the SoundCloud platform.". The PRS letter goes on to say: "We have asked SoundCloud numerous times to recognise their responsibilities to take a licence to stop the infringement of our members’ copyrights but so far our requests have not been met. Therefore we now have no choice but to pursue the issue through the courts."

The letter explains that whilst SoundCloud has taken down some of PRS repertoire,  a recent list of some 4,500 musical works which the PRS say were being made available on the service and which they were asking SoundCloud to licence  or remove resulted in this: "SoundCloud decided to respond to our claim by informing us that it had removed 250 posts. Unfortunately, we have no visibility or clarity on SoundCloud’s approach to removing works, so it is not currently clear why these particular posts have been selected by them given the wider issue of infringement that is occurring. Ultimately, it is SoundCloud’s decision as to whether it starts paying for the ongoing use of our members’ music or stops using these works entirely."
   
The letter from Karen Buse, Executive Director, Membership and International at PRS for Music, ends by saying "We remain hopeful that this matter can be resolved without the need for extended litigation. Members will appreciate that this is now a legal matter and our ability to communicate around it is therefore limited by the legal process. However, we will try to share information and updates whenever we can."

SoundCloud has issued its own statement responding to the letter saying: “It is regrettable that PRS appears to be following this course of action in the midst of an active commercial negotiation with SoundCloud. We believe this approach does not serve the best interests of any of the parties involved, in particular the members of the PRS, many of whom are active users of our platform and who rely on it to share their work and communicate with their fanbase.”


“SoundCloud is a platform by creators, for creators. No one in the world is doing more to enable creators to build and connect with their audience while protecting the rights of creators, including PRS members. We are working hard to create a platform where all creators can be paid for their work, and already have deals in place with thousands of copyright owners, including record labels, publishers and independent artists.”

SoundCloud's content is currently uploaded by creators, marketing companies, record labels and even music publishers - and  whilst the PRS letter notes "When a writer or publisher becomes a member of the Performing Right Society, they assign certain rights to their works over for us to administer, so it’s our job to ensure we collect and distribute royalties due to them" this move certainly may irritate some of the PRS's own membership who see a real value in SoundCloud. A court case would almost certainly look at the European take on 'safe harbours' and how SoundCloud's take down policies would fit with that - but going forwards, and if SoundCloud is going to adapt to a streaming model more akin to Spotify, its hard to see why it would want a war with the PRS at this juncture.

The letter can be found here - an interesting analysis on MusicAlly here, and more comment and thoughts on Music Business Worldwide here - not least on the position of Warners Music Group and Universal Music here - presumed equity holders in SoundCloud - but through their publishing divisions - members of PRS for Music as well. 

UK-China Copyright Week: can it deliver, and will it?

You may not have realised it -- and this blogger certainly didn't -- but next week is UK-China Copyright Week. It's only a five-day week rather than the conventional seven-day variety, possibly on account of the shrinkage in China's economy, but it's a sweet idea anyway. The UK IPO's media statement below says it all:

Firms from the UK’s world-leading creative industries sector will travel to China, with officials from the UK Intellectual Property Office, to strengthen relations with Chinese counterparts. UK-China copyright week takes place from 31 August to 4 September 2015 and is the latest in a series of high level international events to promote and protect intellectual property across borders. The UK Intellectual Property Office has coordinated a week long programme of events in conjunction with the National Copyright Administration of China (NCAC).

Headed by Dr Ros Lynch, the UK IPO’s Director of Copyright and Enforcement, the delegation including representatives of the UK’s world class creative industries will participate in events in Beijing, Hangzhou and Shanghai. They will share best practice on key areas of reform such as collective licensing, extended collective licensing, broadcasting & related rights, orphan works, copyright enforcement, enforcement of other IP rights and to engage with copyright creators and owners from both the UK and China [do we even know what best practice in all these fields is?]. 

...

Copyright underpins success in publishing and all other creative industries. UK physical book export sales to mainland China increased 6% to £57 million in 2014 and it is vital that we create an environment to protect this market and foster future growth [it will be interesting to see how this growth can he sustained and protected, given that the purchase of foreign copyright-protected material is presumably going to be much more expensive following China's currency devaluations].

China is a key trading partner for the UK and a market of enormous potential for the creative industries. China has the fourth largest TV market in the world and the third largest radio market. China has seen a boom in its online entertainment sector and is likely become one of the world’s top 10 music markets over the next few years. The Chinese broadcasting industry is estimated to grow strongly over the next 5 years to over US $11.5 billion (estimated £7.3 billion) there is still tremendous potential for further growth [one wonders whether this figure will need to be revised downwards in light of the recent slump in China's economic performance].

China’s copyright law is currently being revised across a range of areas including: digital environment & internet service providers; sound recordings & public performance rights; works of applied art ownership provisions for films; limitations & exceptions (in particular regarding software); orphan works; compulsory licences & collective management; exercise of rights; droit-de-suite/artist resale right; technological protection measures; and civil infringement and administrative enforcement.

Copyright Week will provide a unique opportunity for businesses and policymakers from both countries to engage directly with government officials and discuss these revisions in depth. Discussions will aim to maximise the benefits of an effective copyright regime.

This blogger is very fond of international cooperation, but he also wonders how the benefit -- if any -- of events such as this will be measured and whether the funds expended in participation in this week could not have been put to better use by his servants in the UK IPO.

The CopyKat - courtesy of the red, white and blue

Photographer Art Dragulis  probably thought he had an open and shut case when he found out the Kappa Map Group had been using one of his shots of rural Maryland on the front cover of a street atlas of Montgomery. Except .... maybe he had forgotten  that when he uploaded the shot to the photo sharing site Flickr he did so under a Creative Commons licence  which allowed commercial use of the photo in exchange for attribution; Plaintiff alleges that defendant infringed his copyright in the photograph because it “copied Plaintiff’s work and made derivatives of the work without Plaintiff’s authorization in violation of 17 U.S.C. § 501.” Id. ¶ 22. But plaintiff uploaded the photograph to a public photo-sharing website, where he did not assert exclusive rights to his copyrighted image, and he instead opted to license the work and make it available for use by others without compensation. TechDirt says "The final opinion notes that Dragulis seems upset with what happened but can't really blame anyone but himself for the outcome."

As the CopyKat noted in an earlier posting in relation to the use of copyright laws in 'revenge porn' cases, the hacked extramarital dating service Ashley Madison is trying to prevent dissemination of its stolen database and other information by sending DCMA copyright takedown notices to social networks and file-sharing sites. It's only been partially successful so far - not least as there are 33m user records posted online - a huge volume. Some takedowns have worked - but some have not,  because platforms such as Twitter have resisted some DCMA claims. Joseph Cox, a writer for technology site Motherboard, reported that a copyright takedown notice was filed for three of his tweets, each of which contained screenshots of information contained within the Ashley Madison breach: One takedown was implemented But the company disagreed with Ashley Madison over the infringing nature of the other two tweet.

Mayor Butts

A federal judge in Los Angeles has told the city of Inglewood  that it can't try to silence a critic of Mayor James T. Butts Jr.(left) by asserting copyrights over the official videos of City Council meetings. U.S. District Judge Michael W. Fitzgerald's decision made it clear that the the state legislature has severely limited the ability of local governments and other public entities to copyright the materials they create - and - even if Inglewood could copyright the videos, the use by local resident Joseph Teixeira criticising the Mayor would be covered by fair use. Image of Mayor Butts by Melanie McDade. 

The Attorney Registration and Disciplinary Commission (ARDC) of Illinois, USA, has filed a complaint against John Steele, one of two lawyers believed to be the masterminds behind the Prenda Law 'copyright-trolling' scheme. In the seven count complaint, ARDC asks for a panel hearing and a disciplinary recommendation, which will be transmitted to the Illinois Supreme Court. That court has the power to suspend and disbar attorneys. More on ArtsTechnica here.

The former owner of a major file haring site, one Rocky P. Ouprasith, has said he was not the operator of a new version - not least as he was busy being investigated fir piracy, finally pleading guilty to one count of copyright infringement. Ouprasith's attorney Bobby Howlett Jr. told reporters that his client - who was behind  RockDizMusic.com and RockDizFile.com - was not behind RockDizMusic.tv saying: “I can assure you my client is not still doing what brought him in front of the judge”.  The Recording Industry Association of America, a trade organization that represents the recording industry, said RockDizFile emerged in 2013 as the “second largest online file sharing site” specialising in pirated music. Press comments say Ouprasith should expect a prison sentence.

And finally - two non U.S. updates - but both from the UK so still some red, white and blue in there somewhere! Firstly, PRS for Music confirms it has agreed a new two year multi-territory European licensing deal with music streaming and subscription service, Spotify. Continuing the ongoing relationship between the pair, the recent deal allows the music streaming and subscription service to continue to offer its users a vast bundle of repertoire in the UK and Ireland (including repertoire from over 100 affiliated societies from around the globe), plus PRS for Music’s and Eire based IMRO’s direct members’ repertoire across Europe. The repertoire PRS for Music licenses to Spotify across Europe further includes musical works represented by a growing number of IMPEL publishers. IMPEL currently represents the rights of 40 leading independent publishers, a number that is anticipated to grow further before the end of the year.

And lastly, the City Of London Police's IP Crime Unit – (PIPCU) – has to date requested that domain name registrars suspend 317 pirate sites, according to Torrentfreak, which confirmed the numbers from a UK Freedom of Information request. In addition to targeting domain registrars, PIPCU also told Torrentfreak that it had sent warning letters directly to the operators of 377 piracy websites, all of which had been referred to the policing unit by entertainment industry trade groups. How successful either of these initiatives are remains to be seen. Image from www.123rf.com 


Courtesy of the Red, White & Blue (Toby Keith): "Oh, justice will be served and the battle will rage / This big dog will fight when you rattle his cage / And you'll be sorry that you messed with the U.S. of A. / 'Cause we'll put a boot in your ass, it's the American way."

PRS announces new two-year Spotify deal

Here's some hot-off-the-press news from the wonderful world of collective copyright management. UK-based PRS for Music has confirmed that it has agreed a new two-year multi-territory licensing deal with Swedish music streaming and subscription service Spotify. According to a media release from PRS earlier this afternoon:

"Continuing the ongoing relationship between the pair, the recent deal allows the music streaming and subscription service to continue to offer its users a vast bundle of repertoire in the UK and Ireland (including repertoire from over 100 affiliated societies from around the globe), plus PRS for Music’s and IMRO’s [Irish] direct members’ repertoire across Europe.

The repertoire PRS for Music licenses to Spotify across Europe further includes musical works represented by a growing number of IMPEL publishers. IMPEL currently represents the rights of 40 leading independent publishers, a number that is anticipated to grow further before the end of the year.

The new deal is part of PRS for Music’s continued commitment to support and licence streaming services to ensure that its members are fairly remunerated for their works".

This blogger is having a little chuckle, recalling the dark cloud cast over the world of music copyright by the emergence of Spotify and the threats it posed, both to the accepted order of things and even to its own investors. Is this the same Spotify we blogged about here in October 2009, here in April 2010?  Incidentally, there's a reasonably good account of the evolution of Spotify from its earliest beginnings on Wikipedia here.

Cheering news for Cheerleading Uniforms ?

Sixth U.S. Circuit Court of Appeals

The Sixth U.S. Circuit Court of Appeals has issued its opinion on the nature of federal copyright protection that can apply to the outfits worn by cheerleaders in a dispute between the makers of the two outfits illustrated above:  Judge Karen Nelson Moore, who wrote the majority opinion, asked “Are cheerleading uniforms truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks?” and looked at the distinction between the protection the mechanical or utilitarian design aspects of a useful object (that cannot be protected by U.S. federal copyright law) and the artistic elements applied to any useful object (which can): 

“[T]he design of a useful article . . . shall be considered a pictorial, graphic, or sculptural work,” and thus copyrightable, “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 

its an area of law fraught with problems (in the UK matters where somewhat clarified by the 'Star Wars' case of Lucasfilms v Ainsworth).

Here in the United States District Court for the Western District of Tennessee at Memphis (No. 2:10-cv-02508)  Judge Robert H Cleland  concluded that a cheerleading uniform is not protected without the distinctive stripes, chevrons, zigzags, and colorblocks, and therefore the claimant's copyrights were invalid. But the Sixth Circuit majority opinion by Judge Moore disagreed. The appellate court likened uniforms to fabric patterns, which can be protected by copyright:

To the extent that [the defendant] contends that pictorial, graphic, or sculptural features are inextricably intertwined with the utilitarian aspects of a cheerleading uniform because they serve a decorative function… we reject that argument. Such a holding would render nearly all artwork unprotectable. Under this theory of functionality, Mondrian’s painting would be unprotectable because the painting decorates the room in which it hangs….It would also render the designs on laminate flooring unprotectable because the flooring would be otherwise unattractive….Finally, holding that the decorative function is a “utilitarian aspect[] of [an] article,” would make all fabric designs, which serve no other function than to make a garment more attractive, ineligible for copyright protection. But it is well-established that fabric designs are eligible for copyright protection…We therefore conclude that a pictorial, graphic, or sculptural work’s “decorative function” does not render it unable to “be identified separately from,” or “[in]capable of existing independently of, the utilitarian aspects of the article.”

Judge David McKeague dissented saying that the uniforms were  not copyrightable  - because the design identifies someone as a cheerleader

“clothing provides many functions, but a uniform at its core identifies its wearer as a member of a group” 

But adding a plea for Supreme Court guidance, or even reform or new legislation, saying:

"The majority takes a stab at sorting it out, and so do I. But until we get much needed
clarification, courts will continue to struggle and the business world will continue to be
handicapped by the uncertainty of the law."

Varsity Brands, Inc., et al V Star Athletica, LLC. (14-5237)

http://blogs.wsj.com/law/2015/08/19/copyright-case-asks-what-is-a-cheerleading-uniform/

London Calling - for scholars of Lego and the CJEU

Two new seminars are coming up for those of you who can make it to London - firstly a fascinating look at the world of Lego hosted by the City University, and then BLACA hosts Sir John Mummery looking at the impact in the UK of rulings from the Court of Justice of the European of the European Union.

On Monday September 7th Professor Dan Hunter, Foundation Dean, Swinburne Law School, Australia, will be giving a talk at the City University titled "The Lego Brick and the International Intellectual Property System, 1955-2015" - from 15.00 to 17.00.

Background: For intellectual property scholars, the Lego brick stands as a wonderful case study in the development of intellectual property regimes in the latter part of the twentieth century. This paper traces the ways in which the Lego company has used every type of intellectual property regime since it first created its system of interlocking bricks in 1955, in an effort to retain control over its iconic brick. With its bricks initially protected by patent, the company has, at various times, sought to use copyright, trademark and trade secret to stop competitors from creating interlocking bricks. As these efforts failed, the company had to change, rethinking its approach to intellectual property and more generally to its degree of control over the brick. By using the primary sources of the litigation material and the issued Lego sets, the paper examines the complex interaction between the intellectual property law, global capitalism, and the cultural environment of the last 60 years. The paper also demonstrates how the Lego company has influenced the development of the international intellectual property system in the postwar period. In a concise and interesting way, Lego is a microcosm of the development of the international intellectual property system, and the firms that rely on it.

Room A110, College Building, City University London. You need to register to attend - but its free! There is a link below.

On Thursday September 10th, the British Literary and Artistic Copyright Association, BLACA (which provides a forum for discussion of matters affecting the rights of authors and other copyright owners and is the UK national group of the International Literary and Artistic Association) hosts Sir John Mummery speaking on the Impact in the UK of Court of Justice European of the European Union rulings. Sir John is a former Lord Justice of Appeal and is President of the Investigatory Powers Tribunal -  and has an honorary Doctorate in Laws from the City University!

Time: 6.15pm for a 6.30pm start  Venue: The offices of Berwin Leighton Paisner, St Magnus House, 3 Lower Thames Street, London, EC3R 6HE. Link below.


More Lego information here http://www.city.ac.uk/events/2015/september/the-lego-brick-and-the-international-intellectual-property-system,-1955-2016

More Euro information here http://www.blaca.org/

The CopyKat - food for thought

Whilst (and for an unexplained reason) numerous blogs including Boing Boing and TechDirt focussed on a 2013 ruling in Germany that "Germany Says Taking Photos Of Food Infringes The Chef's Copyright", The CopyKat was more intersted in the ruling in the the Australian Federal Court which dismissed an interlocutory application by Seven Network (Operations) Limited (Seven) to restrain the Nine Network (Nine) and production company Endemol from continuing to broadcast the kitchen reality TV show, The Hotplate. Seven alleged that, by producing and broadcasting episodes of The Hotplate, Nine was infringing Seven’s copyright in its program, My Kitchen Rules (MKR) - its format wars again folks! Seven had argued that key elements of MKR sufficient to constitute a substantial part of one or more of the MKR literary works had been incorporated into The Hotplate and that Endemol had access tho the MKR production 'Bible'.  The Court dismissed the application, finding that  the balance of convenience of either granting or withholding the interlocutory relief weighed in Nine’s favour, not least as if The Hotplate were halted, it would be increasingly difficult to re-start as successfully at a later date. This means that the remainder of the first season of The Hotplate can continue to be broadcast (at least until the next hearing).  Justice Nicholas did find that Seven has a reasonably arguable case that the formats of MKR and The Hotplate are very similar and that this close similarity was (at least to some extent) the result of copying by Nine.  Sonia Borella and Sam Berry (Holding Redlich) have some useful observations here.

The Motion Picture Association Of America has dropped their somewhat controvesrial request for a preliminary injunction that would have required U.S. internet service providers to block access to the copyright infringing MovieTube we mentioned in our last (catscratching) post.

Paul Duffy, one of the attorneys behind the somewhat notorious copyright 'troll' Prenda Law, has died. His death was confirmed by the  Cook County Medical Examiner. The cause of death is still pending and could take up to three months to confirm. The Madison Recorder noted that Duffy died at a Chicago hospital. He was 55. . US District Judge Otis Wright had Prenda's practices referred to the Internal Revenue Service's criminal investigation unit and in August 2014, the US Court of Appeals for the Seventh Circuit upheld judicial sanctions against Duffy and fellow attorneys John Steele, and Paul Hansmeier for engaging in “abusive litigation” and failing to pay attorney's fees to defendant Anthony Smith in a porn-downloading lawsuit. ArtsTechnica also say that in June this year US District Judge David Herndon ruled that Steele and Duffy had "engaged in unreasonable, wilful obstruction of discovery in bad faith" in its case against Smith. Herndon ordered Duffy and Steele to pay for the defence's discovery costs.

The Chinese State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) has announced a regulatory notice to control reality television programmes that are “vulgar and damaging to social ethics”. The notice does not give details of mechanisms that will be used to define or ban problematic programmes. The notice may affect licensing of programme formats and content from overseas, for both on- and off-line screening. More here (in Chinese). This from the IPO's excellent monthly China IP Newsletter.

Kim Dotcom has posted a recording of a phone call he had with some Universal Music executuves a few years ago in which the major label men –- at that point major foes of the MegaUpload founder and about to shut him down - discussed the possibility of participating in a new venture he was experimenting with at the time called Megakey. CMU Daily have an interesting update on this here. 

A Los Angeles federal judge has now scheduled the trial in a copyright-infringement case involving Led Zeppelin’s iconic rock anthem “Stairway to Heaven.” A lawsuit, filed last year in Philadelphia and subsequently transferred to Los Angeles, alleges that the guitar arpeggio opening of “Stairway,” released 44 years ago, was lifted from the 1968 instrumental “Taurus” by the long-defunct Los Angeles band Spirit who suppirted Led Zepplin on tour. The complaint was lodged on behalf of the estate of Spirit’s guitarist- songwriter Randy California, who drowned in 1997 off the coast of Hawaii. The trial is set to begin on May 10th.

And finally: So you're a farmer in rural America - the land of the free and the self reliant - and your John Deere 8520T tractor plays up - and needs a fix:  the problem is that it's all run by a computer and you can't actually do repairs as there's a digital lock on the software and only the autorised dealer can fix the tractor.  Tamper and you run the risk of a copyright infringement suit. Now farmers and mechanics are asking the Library of Congress' copyright office to review the law and make an exemption.  More here.

The Future of the Music Business: a new edition

Does the music business have a future? Despite all the gloom and doom, one would like to think that the answer is an emphatic "yes", if only because  The Future of the Music Business, by US entertainment attorney Steve Gordon, is now in its fourth (and, one guesses, by no means its final) edition.

According to the book's website:

" ... the purpose of the fourth edition of the FUTURE OF THE MUSIC BUSINESS ... is to provide a road map for success in the music business – not only for musicians, songwriters and producers – but also for entrepreneurs and industry professionals. Technology has profoundly changed the recording industry and the music publishing business. Entirely new rules, business practices and models have emerged at breathtaking speed including in the several years since the publication of the third edition in 2008. The fourth edition explains the most recent rules, business practices and models, and offers insights into how to take advantage of them.

The purpose of this website is to update the book and to promote it to readers who have not bought a copy by offering segments of the book’s contents including the Foreword by Amanda Palmer and Table of Contents. ..."

This US book comes out on 20 August and our good friend Amanda Harcourt -- a founder member of this weblog -- contributed a chapter on music licensing in the hope that readers in the USA might remember there is a licensing landscape that stretches beyond the familiar territory of the 50 States.

You can buy this book on Amazon here.

The CopyKat - taking stock of a 'brief week'

A Sky News live feed of the debate between the US Republican presidential candidates, including Donald Trump, Jeb Bush, and Rand Paul on its YouTube channel focussed on the U.K. was shut down part way through, possibly after the intervention of U.S. sister channel Fox Networks. Both broadcasters are owned by News Corp. The YouTube feed was replaced by an error message: "This video is no longer available due to a copyright claim by Fox News Networks, LLC." although some commentators point to the fact that YouTube's own automatic copyright infringement identifying software might have instigated the take down. Sky's old YouTube channel remains blocked - Sky News has since switched over to a new YouTube URL. In the U.S.,  the Republican debate, which was hosted by Fox News in partnership with Facebook, was meant to only be available to those with a cable TV subscription.

Google, Facebook, Twitter, Tumblr and Yahoo! are amongst the signatories to a new amicus brief submitted to the New York court that is considering legal action filed by the Motion Picture Association Of America seeking an injunction forcing third parties to block, remove links and stop providing any services to the copyright infringing MovieTube website(s).  They say that the injunction the MPAA requests is too wide-ranging, hinders the sometimes controversial safe harbours provided to tech companies in the Digital Millennium Copyright Act, and is basically "SOPA by the back door" (SOPa was the much maligned Stop Online Piracy Act, ultimately put on the back burner by the legislature. The brief says: "Plaintiffs now appear to be repackaging the excesses of SOPA into the All Writs Act. Indeed, the injunction proposed here would require the same online intermediaries targeted by SOPA to engage in the same kind of content and domain blocking that would have been required under SOPA had it been enacted".

Police in the UK have hailed an operation to halt advertising on piracy sites as a “major success”. The Police Intellectual Property Crime Unit (PIPCU) claims that since it launched Operation Creative and the Infringing Website List (IWL) in summer 2013, there has been a 73% decrease in advertising from the UK’s ‘top ad spending companies’ on copyright infringing websites, with PIPCU heralding the success of its 'follow the money' approach. More on MBW here.

Back to SiriusXM and those pre-1972 sound recordings in the USA: As readers may remember, Sirius appealed both the decisions it has so far lost (New York and California) which held that state law DID protect pre-1972 sound recordings and Sirius couldn't therefor use them royalty free , and a similar case against Pandora is also on appeal in California. Last week, EFF, who argue that this effectively creating new public performance rights that might apply to all pre-1972 recordings and all types of broadcasters, filed a brief with the Second Circuit  Court of Appeals in New York, urging that court to reverse the decision. The National Association of Broadcasters, the New York Broadcasters Association, Public Knowledge, Pandora, and a group of law professors also filed briefs (it seems to be 'brief week') opposing the new right, with the EFF explaining to the court some of the many problems this ruling could cause if it’s not reversed. EFF argued that the courts should leave decisions about expanding copyright law to Congress and also saying that whilst public performance rights in sound recordings are common outside the US, and they exist for digital radio services in the U.S. - they come with important safeguards: explicit limitations like fair use, and statutory licenses that avoid the massive transaction costs that would come with having to negotiate with each rights holder individually. 

A report crunching more than six years of copyright lawsuits filed in the U.S. has revealed that Malibu Media is the country's most litigious plaintiff. The company, which TorrentFreak says demands thousands of dollars from individual file-sharers, has filed 4,332 lawsuits since January 2009, fifteen times more than its nearest rival. Overall, it's estimated that 90% of file-sharing cases are settled out of court. However 66 cases reached court with total resulting damages estimated at $3.05 million. The company set up to pursue illegal downloaders of the movie Dallas Buyers Club sits in second place, with a relatively measly 274 cases, fifteen times fewer in volume than Malibu.

ZDNet reports that the Australian Attorney-General has commissioned a cost-benefit analysis of proposed digital copyright reform, which will encompass an economic analysis into the Australian Law Reform Commissions's (ALRC) recommendation to adopt a flexible fair use provision in regards to digital copyright in Australian law, seemingly as the the AG is concerned about the costs to both rights holders and rights users. A new Australian fair use provision would mean the fair use of a copyright material would not constitute infringement, based on a series of as yet incomplete fairness factors -- including the purpose of the use, nature of the material, amount of the material used, and the use's effect on the material's value: in addition research for the purposes of study and education as well as news reporting, review, criticism, satire, parody, quotation, non-commercial private use, professional advice, incidental or technical use, library or archive, and access for people with a disability would be exempted from copyright infringement provisions. The ALRC have said that the reforms are needed to promote the digital economy in Australia, although AG Brandis is seen as a friend to the content industries and unconvinced that despite changing technology, major law reforms are necessary, saying in late 2013 "I want to reaffirm the government's commitment to the content industries. It is the government's strong view that the fundamental principles of intellectual property law, which protect the rights of content creators, have not changed merely because of the emergence of new media and new platforms."

Unification of European Copyright: coming soon ...

They forgot to book an executive bedroom ...

Our friends at the British Literary and Artistic Copyright Association (BLACA) have been busy again: they are participating in a joint seminar with the Bangor Law School on Friday 20 November, the topic being "The Unification of European Copyright".

There's a 5 pm start and a 7 pm reception. Between those two points you can listen to words of wisdom from Fidelma Macken SC (former judge of the CJEU and retired judge of the Supreme Court of Ireland; now with Brick Court Chambers, London) and Professor Antoon Quaedvlieg (Law Faculty, Radboud University, Nijmegen, the Netherlands).

4-star accommodation will be available in the University’s Management Centre (20 bedrooms have been provisionally reserved. Prices range from £74.50 for a double room and, from £89.50 for an executive bedroom). To book a bedroom in the Management Centre, please mail Ffion Lisk (Events Coordinator) at f.lisk@bangor.ac.uk (Telephone: + 44 (0)1248 - 365912), quoting ‘ Law School/BLACA Copyright Seminar'.

Pre-registration is required for this seminar. If you wish to attend, please confirm this by Friday 13 November to Polly Taylor (BLACA) at polly.taylor@blplaw.com, copying Mark Hyland (Bangor Law School) at m.hyland@bangor.ac.uk in the same e-mail.

This event is unusual in that it's the only one this blogger has ever seen in which details of the sleeping arrangements occupy more space in the publicity than details of the seminar topic.

Temporary increase in PRS TV admin rates to cover Copyright Tribunal reference by ITV

UK collection society PRS for Music have written to members explaining an increase in administration rates for TV collections to cover the expected cost of a Copyright Tribunal referral by ITV, one of the UK's leading broadcasters and home to X-Factor, Coronation Street, Midsomer Murders and UEFA Cup football. Rates range from 12.5% for BBC collections to 16% for Channel 5, MTV and other satellite and cable channels. A peak hour's one minute play on BBC1 would currently generate £90.35 for the rights holder, whereas on Channel 5 it would generate £11.95.  The letter reads:
                             
"After careful consideration by the Executive Board, it has been agreed that there will be a temporary rise to our TV admin rates by an additional one percent for one year. This will be implemented to cover the expected costs associated with defending the recent Copyright Tribunal reference brought against PRS by the broadcaster ITV.
                             
Following prolonged negotiations, ITV referred the new deal (covering broadcasts from 1 January 2015), to the Copyright Tribunal. This was due to disagreements over the details of our licence renewal. We feel it is vital that we fully participate and vigorously defend this referral to secure a fair return for the use of our members’ work. Copyright Tribunals are costly but it’s important to protect and champion your work and ensure you are fairly remunerated whenever it is used.
                             
The Executive Board has therefore approved a proposal for a one percent increase in our TV admin rates for a period of one year, this being the fairest way of covering the expected costs in defending this referral. While the tribunal will only rule on the ITV licence, it is an important decision for all members whose music is played on TV, meaning we are sharing the cost across all our TV revenues.
                             
The increase is expected to take effect from October 2015. 

Shakira Plagiarism Verdict Reversed

Readers may recall that last August Ben told us about a case in the District Court for the Southern District of New York, in which a song entitled Loca by the singer Shakira, was found to have infringed the copyright of another song entitled Loca Con Su Tiguere written by Ramon Arias Vasquez in the 1990s.

On Monday the same court presided over by District Judge Alvin Hellerstein, reversed the earlier verdict after hearing new evidence about a cassette which had been used to register the song with the US Copyright Office and which also featured as an exhibit in the original trial. Sony/ATC Latin who were defendants in the original case produced new evidence which showed that the type of cassette on which the recording had been made was not available in 1998 when it was claimed the tape had been made. Furthermore the picture on the cover of the cassette depicted an adult singer named Jhoan Gonzalez, who because he was born in 1989, would have been aged nine years old, and so could not have been the singer on the tape, if it had been recorded in 1989. Also on the tape were songs by a Dominican band which had been written in 2008 and 2009. The court therefore concluded that the song Loca Con Su Tiguere is likely to have been composed around the same time.

In the original case, it had been claimed that Dominican rapper Edward Bello who along with Shakira and another writer, was responsible for writing the  song Loca, had met with Arias in 2006 and had heard the song Loca Con Su Tiguere. This, it was claimed, was how the song came to be copied and Loca was not therefore a case of independent creation. Bello had denied this version of events at the original trial.  In view of the court's finding that the song Loca Con Su Tiguere was not composed until 2008 or 2009, this would appear to back up Bello's testimony.

Understandably, according to Reuters, the Judge said that he had lost faith in Arias's testimony and there "was a basic issue of fraud in the trial". The copyright claim was dismissed. It appears unlikely that Mayimba Music, who brought the original claim as owners of the rights to Arias's songs, will be appealing the decision. 

Graffiti Artist Rime Sues Moschino For Copyright Infringement

The Wall Street Journal Law blog reported this week that graffiti artist Rime is suing Italian fashion house Moschino and its designer, Jeremy Scott, for copyright infringement, in the Central District of California. The article provided a link to the complaint. The case is Joseph Tierney v. Moschino S.P.A., 2:15-cv-05900.

Plaintiff is a graffiti artist and is known as Rime. His work has been shown in several museums and galleries around the world. He claims that Moschino incorporated a reproduction of one of his works, Vandal Eyes, in a dress which was worn by singer Katy Perry at the latest Metropolitan Museum of Art gala, and on a men’s suit worn by Jeremy Scott at the same gala. The complaint takes care to note that Ms. Perry “made a number of “worst dressed” lists as a result” [Ouch!].

Plaintiff also claims that his name and fake signature were reproduced on clothes and accessories, and that “Moschino” was included in the print, making it appear that the print was created by the fashion house.

He is claiming copyright infringement, trademark infringement, unfair competition, and infringement of his right of publicity.

Copyright Infringement

Plaintiff created Vandal Eyes in 2012, when he was invited by a property owner to create a giant mural on a wall of a building in Detroit. There is no doubt that it is protected by copyright, as it has been fixed and is certainly original. Plaintiff has applied to register his copyright in this work. Plaintiff claims that Jeremy Scott attended the 2011 Arts in the Streets exhibition at the Museum of Contemporary Art in Los Angeles which featured Rime’s work, among other graffiti artists. If this access is indeed shown, a lower standard of proof of substantial similarity would be required by the court under Ninth Circuit case law, see for instance Three Boys Music Corp. v. Bolton at 485.

Just as graffiti artists Revok, Reyes and Steel did in their copyright infringement suit against Roberto Cavalli, Rime claims that by intentionally removing and altering his signature, Defendant intentionally concealed copyright infringement and thus violated § 1202 (b) of the Copyright Act. This section protects the integrity of copyright information, and makes it illegal to intentionally remove or alter any copyright management information without authorization of the copyright owner or the law.

Right of Publicity

As this blog concentrates on copyright, I will not comment on the trademark and unfair competition claims. Plaintiff also claims that Defendants infringed his right of publicity, as provided by California civil Code §3344, as they “us[ed] his name in connection with the marketing and sale of Moschino apparel and goods, and for the purpose of advertising, marketing and soliciting purchases of Moschino apparel and goods” and that he sustained damages because of these actions. Indeed, 3344 (a) prevents knowingly using a person’s name “in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent.”

This case is the last of a series of graffiti artists suing fashion companies for copyright infringement (see here and here).

The CopyKat - that not quite so secret TPP Agreement is back in the news

China's copyright regulator has said that the online music copyright situation has improved since it ordered music providers to remove unlicensed songs in July. Music steaming services had removed more than 2.2 million unlicensed songs as of Friday, said the National Copyright Administration (NCA). Internet companies have also improved their efforts in copyright cooperation, said the NCA. However many commentators such as Billboard saying piracy remains a major issue saying "Well, that deadline has passed, and sites like VeryCD, which allows illegal downloads, and the popular QQ for streaming, are still up and running and still serving up artists like The Beatles". 

Torrent Freak have led with an article headlined "iTunes illegal under UK cpoyright law": TF reached out to the UK Intellectual Property Office, which provided some very clear answers on the recent decision in BASCA v Secretary of State for Innovation and Skills [2015] EWHC 1723 (Admin) saying: “It is now unlawful to make private copies of copyright works you own, without permission from the copyright holder – this includes format shifting from one medium to another,” a spokesperson informed us. The IPO specifically notes that copying a CD to an MP3 player is not permitted. TF says this  means that iTunes’ popular ripping feature, which Apple actively promotes during the software’s installation, is illegal.

The Trans Pacific Partnership Agreement (TPP) continues to attract interest and comment - almost all negative. The latest leaks have revealled that there is a widening disagreement between member nations on the deal’s 'draconian' copyright and intellectual property (IP) provisions which appears to be a split between the USA and almost all of the other 11 potential signatories on a number of copyright provisions. The 12-nation trade pact would put nearly 40 percent of global trade under a trade agreement aimed at spurring growth and closer trade ties between the Asia Pacific region and Western Hemisphere countries. The US's moves to extend the term of copyright beyond life of author plus 70 years is being resisted as are the text that allows authorities to seize and destroy equipment that infringe copyright, as well as “materials and implements relevant to the infringement” such as computers or servers that host such materials. The leak reveals that the U.S. is opposing a measure that would limit these laws to goods “predominantly” used in infringement, instead calling for the seizure and destruction of equipment that committed only 'minor infractions' of these laws according to the International Business Times. TechDirt takes a different tack, looking at the USA's resistance to 'fair use' provisions with the headline "Why Does The TPP Repeatedly Require Stronger Copyright, But When It Comes To Public Rights... Makes It Voluntary?" saying what the USTR is really proposing is a limit on fair use by proposing a rule that would act as a ceiling for the kind of fair use-like protections for the public and making any provisons (in effect) voluntary by using the qualifications that signatories 'shall endeavour' to bring in a fair use scheme - almost all other provisions in the next must be incorporated into signatnories' domestic laws. A Canadian perspective here.

The EFF say this: "For starters, countries are resisting U.S. negotiators' audacious proposal to distort trade secrets law into a weapon against hackers, journalists, and whistleblowers. There are two new proposals in this leaked text, one of which the U.S. itself supports, to allow countries to adopt a narrow safe harbor for whistleblowers in respect of information that exposes a violation of the law. But this is far from enough. The safe harbor isn't compulsory and it doesn't apply to leaks of information that are of vital public interest, but that don't expose illegality—such as the TPP text itself. Another important area of dissent from the U.S. negotiators' hard line appears in the Enforcement section of the IP chapter, in which every single country is now lined up against the U.S. in favor of a remedy for victims of wrongful copyright abuse" with the EFF posing the question "one has to ask why the U.S. administration wishes to prevent its trading partners from adopting a basic protection for victims of copyright trolls that already exists in U.S. law".

Those Turtles

The New York State Broadcasters Association has filed an amicus brief in the Second Circuit U.S. Court of Appeals in case betwewen sixties pop stars the Turtles (Flo & Eddie - Howard Kaylan and Mark Volman) and SiusXM, contesting the lower court's assertion in dicta that the performance rights being established under common law might apply to broadcast radio as well and  arguing that New York state law does not support a common law performance right in sound recordings and saying that upholding such rights would be "impractical and destructive."  "(T)he District Court’s sweeping alteration of the law is unsupported by prior case law, legislative history at the federal level, and the history of the recording and broadcasting industries in New York State," the NYSBA says, adding that "broadcast radio is fundamentally different from satellite radio; broadcast radio is not subscription based and has been a fixture in the music industry for decades.  In fact, broadcast radio is the very medium that made Respondent’s music famous by disseminating it to the public at large at no cost." The brief also argues that "the District Court fashioned a new common law performance right in sound recordings that heretofore never existed," the brief asserted that radio airplay sells music and that common law copyrights for sound recordings have never included performance rights but only against unauthorized reproduction.  And the brief argued that ruling to expand the imputed performance right would result in "financial distress for broadcasters, perverse incentives for artists, and uncertainty for everyone". More here and here. Having prevailed in Claifornia and New York in establishing that state laws protect the public performance of pre-1972 sound recording,  the litigants lost their claim for common law protection of pre-1972 sound recordings in Florida where the judge said no law existed to protect such rights and that the coirt was not disposed to create a new property right which is a matter of the legislature.

Ray Charles

And finally, the United States Court of Appeals for the Ninth Circuit has 'breathed new life' into a case highlighting an interesting intersection of the worlds of estate planning and copyright law. The case in question was initiated in 2012 by the Ray Charles Foundation against 7 of the musician’s 12 children, to block their attempted terminations of copyrights in 51 of Charles’ songs, including “I Got A Woman” and “Hallelujah, I Love Her So.” to get the return of the copyrights. The charitable Foundation was Charles’ sole heir and received the entirety of his estate, including the rights to receive royalties for his songs.  Charles' children, each got a trust worth $500,000 apiece shortly before his death and were required to sign written contracts effectively waiving their rights to any other inheritance. Regular readers will recall the termination right the children are attempting to assert is created under the U.S. Copyright Act of 1976 which allows an artist or his surviving heirs to terminate a copyright 35 years after it was granted.  The Ninth Circuit has now reversed the lower court’s dismissal of the Foundation claim, ruling that the foundation had standing since it receives royalties from the copyrights held by Warner/Chappell Music and so had  standing as a “real party in interest” ruling “It is undisputed that copyright ownership lies with Warner/Chappell, but just as the termination notices affect Warner/Chappell’s ownership of copyrights, they also directly affect the foundation’s right to royalties” and “The foundation is the sole recipient of royalties flowing from Charles’s copyright grants and effective termination would deprive it of the right to receive prospective royalties. We thus have little difficulty concluding that the foundation is litigating its own stake in this controversy.": (Ray Charles Foundation v. Raenee Robinson et al., case number 13-55421, in the U.S. Court of Appeals for the Ninth Circuit.).