The CopyKat

The animal right organisation People for the Ethical Treatment of Animals (PETA) has filed an appeal against a lower court's decision in January this year that declined to give the macaque monkey Naruto the right to his famous selfie taken in Indonesia in 2011. The appeal brief was filed at the Northern District of California.

Malibu Media — the online erotic film producer and alleged copyright troll — has been told that when filing against anonymous “John Doe” defendants whose identities are just an IP addresses for their Internet service, they cannot use geolocation tools to more precisely identify these alleged infringers. Malibu had argued that it had used “proven IP address geolocation technology which has consistently worked in similar cases to ensure that the Defendant’s acts of copyright infringement occurred using an [IP address] traced to a physical address located within this District.” The District Court was having none of that writing that “The allegation that the IP address at issue likely resolves to a physical address in this District is not supported in any of the declarations filed in connection with the instant motion.” and a second District Court said “Plaintiff fails to offer any evidence to support its allegation that the infringing IP address was actually traced to a location within this judicial district" and “Nothing in the declarations Plaintiff submitted with its Ex Parte Motion explains what steps Plaintiff took to trace the IP address to a physical point of origin within this Court’s jurisdiction.”

Can the unauthorised reproduction and making available of clips of cricket matches lasting up to 8 seconds amount to an infringement of copyright in works lasting several days hours minutes about this exciting and fast-paced sport? As Elonora tell us over on the IPKat, the answer is unsurprisingly yes -  and the use is not protected by the doctrine of fair use nor by 'safe harbour' - confirmed by Arnold J in his 174-paragraph judgment in England And Wales Cricket Board Ltd & Another v Tixdaq Ltd & Another [2016] EWHC 575 (Ch).

The German head of digital-economy policy at the European Commission, Günther Oettinger, is considering rolling out  German and Spanish “Google tax” on the wider EU stage. Oettinger’s department published a consultation on Wednesday that covers this “neighboring rights” issue (more commonly referred to as “ancillary copyright”). The consultation will run until June 15. This, and a review of the "freedom of panorama" too! Eleonora explains all on the IPkat, and of course John tells us more on the 1709 Blog here and more on the World IP Review here

UK record label association the BPI has said that its members have now issued more than 200m takedown requests to Google for removal of copyright-infringing links. The trade association, which represents the three major recorded music labels, Universal, Sony and Warner as well as many independent labels, sent its first takedown request to Google in July 2011. In 2015 the BPI sent 65m takedown requests and they are now, perhaps understandably, calling for a more permanent solution – so when an offending link has been removed following a takedown request, it stays down, permanently. For a leading technology company, Google seem rather less than innovative in finding a way of achieving this.  In a press release, the BPI say: ‘This high-volume take-down helps to limit the amount of illegal content being promoted, giving legal music services such as Amazon, Apple, Spotify and Deezer a better chance of appearing at the top of search results when fans are looking for music online" but add “While this approach has contributed to some improved visibility of legal services, illegal results that are taken down by Google are frequently replaced by other illegal links, which means that legal services continue to be overshadowed by infringing sites in the very top search results" and “This damaging situation can only be remedied by Google themselves changing strategy and pro-actively pursuing a “notice and stay down” approach, so that once a piece of content has been notified for removal by the BPI, it isn’t indexed again for the same site and stays removed.” The BPI are also asking Google to hep promote websites with legal content, and ensure court decisions to block sites are respected. CEO Geoff Taylor said "“We are calling on Google and Bing to show their undiluted commitment to artists and the creative process by implementing a more pro-active solution to illegal sites appearing in search results. This will avoid the cost for both of us in dealing with hundreds of repeated notices for the same content on the same illegal sites”.

Donald Trump’s presidential campaign is being sued by award-winning wildlife photographers who say Trump is using their copyright-protected image of an American bald eagle without permission. Attorneys for Wendy Shattil and Robert Rozinski filed the civil complaint in federal court this week after watching a Trump presidential rally on television and noticing that an attendee was holding a campaign sign that incorporated one of their photographs of the national bird.

And finally, the software behind the epic Princess Mononoke,  Spirited Away and Howl's Moving Castle anime films, created by Studio Ghibli founder Hayao Miyazaki and called Toonz, is about to be made available as an open-sourced edition which will be available for download starting March 26th. Those aiming to up its power can opt for a paid, premium version - helping Toonz cement a place as the world standard in animation. More on the Creators Project here.

More Consultations

Just in case we didn't think that there had been enough copyright consultations, along come another two today, one from Brussels and one from the UK IPO.

The Brussels offering is a consultation on two things, the role of the publisher and the "panorama" right.  You can read all about it here.

Following on from the introduction of specific publisher rights in Germany and Spain, this information gathering exercise is the first intervention from the EU on this topic.  The Commission says "It will serve to gather views in particular on the impact that granting an EU neighbouring right to publishers could have on the publishing sector, on citizens and creative industries and as to whether the need (or not) for intervention is different in the press as compared to other publishing sectors."

The decision to consult on the so-called right of panorama is (in the author's view) regrettable, given the press reaction to the last time this issue bubbled up above the parapet - the Commission says "The consultation will also serve to collect input for the Commission's analysis of the current legislative framework of the 'panorama exception' - so at least they are not saying there is definitively a need to legislate (or at least not yet).

[The author sends his condolences to the survivors and to the families of the victims of yesterday's terrorist attacks and is reassured that the Commission is still undertaking business, rather than allowing terrorism to paralyse activities.]

From the IPO comes the more micro, but nevertheless important technical consultation on implementing the reform of section 72 - which you can read in full here under its full title of "Further consultation and technical review on changes to Section 72 of the Copyright, Designs and Patents Act 1988 (which permits the free public showing or playing of a film contained in a broadcast)."

The revised proposal appears much simpler than the previous one, which is to remove films entirely from the ambit of section 72.  However, the drafting (in this author's view) leaves something to be desired, as it appears to suggest that a broadcaster cannot control ANY communication to the public of a broadcast to a non-paying audience (so I can retransmit broadcasts without constraint, subject only to a claim from the underlying rights owners in any film or other copyright work incorporated into the broadcast).  The revised section 72(1) would read:

The showing or playing in public or the communication to the public of a broadcast to an audience who have not paid for admission to the place where the broadcast is to be seen or heard does not infringe any copyright in- (a) the broadcast; or (b) any sound recording (except in so far as it is an excepted sound recording) included in it.

Does that really meet the three-step test?

Movie Producers Score Significant Win in French Court

                                                                                   

                                                                Who pays the piper?  ISPs!

French movie producers recently scored a significant legal victory in their continung fight against online piracy.

By a ruling dated March 15th the Paris Court of Appeals not only upheld a lower court's decision that internet access providers and search engines (collectively, ISPs) were obliged to block access (in the case of access providers) and remove links (in the case of search engines) to pirate sites but reversed the trial court's decision that the rightsholders had to bear the costs associated with the implementaion of such measures.  In other words, the appellate court held that such costs were to be borne by the ISPs.

In reaching this conclusion, the Court of Appeals reasoned as follows:

Section L.336-2 IPC (the French transposition of Article 8, paragraph 3 of the Info Soc Directive), upon which the action against the ISPs was based, is not an action seeking reparation for harm suffered but rather a specific procedure to be used against intermediaries who are not (necessarily) liable for the infringement.  Consequently, a fault-based approach to the determination of the costs issue is not appropriate.

Referring to the CJUE's ruling in the UPC Telekabel case, the Court noted that while it was true that obliging the ISPs to bear the costs of the measures adversely affected their fredom to conduct business, this was not unreasonable given that they were free to determine the precise technological measures deployed based on their resources and capacity (as long as the desired results were achieved).

The Court also referred to the general principle in French law under which it is not for the party who is a victim of wrongdoing and who seeks redress in court to pay the costs associated therewith. The Court noted that the already precarious financial situation of the rights holders would be seriously jeopardized by imposing the costs on them whereas the ISPs "derive an economic profit from the access (in particular by way of advertising on their pages) and it is thus legitimate and proportional that they contribute financially" to implementing the measures.  (This particular finding has already been criticized by certain commentators as factually inaccurate.)

In response to the argument put forth by the access providers that the statutory provision in question did not expressly provide for them to bear the costs whereas certain other statutory provisions did, the Court noted that while this was true the latter existed in contexts where the blocking measures were sought by the State for reasons of public order (online gambling, national defense) and not in contexts of private rights enforcement.  Accordingly, the absence of express provisions imposing such costs on the access providers in Section L.336-2 IPC was not a bar to doing so.

The Court of Appeals' decision has been hailed by many (including the CNC) as an important step in fighting online piracy.  There has been some press speculation that the ISPs intend to appeal to the Cour de cassation.

Link to ruling in French here

WE COME IN PEACE - PHASERS TO KILL

Our very own star ship : NCC 1709 USS Lexington 

At the beginning of this month Marie-Andree reported that Paramount Pictures and CBS Studios had sued Axanar Productions and its principal Alec Peters, claiming that its short movie Prelude to Axanar infringes their copyright in Star Trek, as it is an unauthorized derivative work. A forthcoming feature-length film called Axanar is planned after Axanar Productions was able to raise hundreds of thousands of dollars on both Kickstarter and Indiegogo.  On February 22, 2015, the Defendants filed a motion to dismiss the claim, arguing that the complaint did not contain sufficient factual matters to put Defendants on fair notice of the claims against them.

Peters had said that Axanar had professionals working in front and behind the camera, with a fully-professional crew — many of whom have worked on Star Trek itself — to ensure Axanar woud be of the same quality as an official Star Trek movie. Having in the past been quite tolerant of fan fiction and fan tribute films,  the film studios instead accused Peters of "unauthorized exploitation" of the Star Trek franchise: "The Axanar Works are intended to be professional quality productions that, by defendants' own admission, unabashedly take Paramount's and CBS's intellectual property and aim to 'look and feel like a true Star Trek movie" read the lawsuit, filed in federal district court in California on December 29th. 


Arts Technica now tell us that the Star Trek rights holders are back with an amended complaint dated the 11th March 2016 that lists many of the specific instances of infringement of what they say are copyrighted element in Star Trek, including the language and culture of alien races such as the Klingons and Vulcans, the cowl-neck uniform that Majel Barrett wore as the Enterprise’s first officer in the original series episode The Cage, and the concept of “Stardate."

The original series Star Trek crew

Axnae's defence seems to be that the project is non commercial saying "Axanar is an independent project that uses the intellectual property of CBS under the provision that Axanar is totally non-commercial” on its website. "That means we can never charge for anything featuring their marks or intellectual property and we will never sell the movie, DVD/Blu-ray copies, T-shirts, or anything which uses CBS owned marks or intellectual property."

That doesn't work for CBS and Paramount, which demanded injunctive relief barring Axanar Productions from distributing Prelude to Axanar and Axanar, and statutory damages (up to $150,000 for each separate infringed copyrighted work)

Some 57 instances of infringement are listed in the amended complaint. These similarities are divided into categories like characters (including Garth of Izar and Vulcan Ambassador Soval), races and species such as the Vulcans,Romulans abd Tellarites, costumes, settings like the planet Axanar and the Klingon planet Qo’noS, as well as spacedocks and the Starship Enterprise, logos like the Federation logo, and plot point similarities including the concept of dilithium crystals, phasers, and the Klingon Empire.

The complaint also points to copyrighted dialogue as infringement. Mentioning transporters and “beaming up,” warp drive, or speaking Klingon language are items listed in the amended complaint.

Finally, CBS and Paramount say that Axanar Productions infringed the copyrighted works’ “mood and theme”: "The mood and theme of Star Trek as a science fiction action adventure first appeared in The Original Series episode “The Cage” and has appeared in all subsequent episodes of The Original Series and other derivative Star Trek Copyrighted Works,” the complaint notes.

CBS and Paramount have requested a jury trial.

http://arstechnica.com/tech-policy/2016/03/paramount-cbs-list-the-ways-star-trek-fanfic-axanar-infringes-copyright/

http://the1709blog.blogspot.co.uk/2016/01/the-copykat-starting-year-with-big-bang.html

And more here https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/24/to-boldly-go-where-no-copyright-suit-has-gone-before/

The CopyKat

The YouTube channel of the state-run Vietnam Television (VTV) has been suspended with the national broadcaster later admitting that the termination was due to copyright infringement regarding its content. The channel, titled VTV - Đài Truyền hình Việt Nam, remained inaccessible, with a message saying it has been terminated because YouTube had “received multiple third-party claims of copyright infringement regarding material the user posted.” More here. However it should be noted that YouTube has set up a new team dedicated to improving the quality of policy enforcement and subsequent erroneous takedowns, responding to community criticism.

Indeed last month Google reported that it had received more than 75 million requests to remove from search results URLs that point to infringing content. That's more than double the number of requests it received in the same period last year, or around 34 million, according to the search giant's updated transparency report.

Controversial 'appropriation artist' Richard Prince has responded to a recently-filed copyright infringement lawsuit, claiming he should be shielded from infringement charges because his use of others’ copyright-protected images amounts to fair use. Prince has recently released a new series, entitled, New Portraits, which consists of blown-up photos from several Instagram accounts, including those of Pamela Anderson, Kate Moss, and Cara Stricker. Prince has added comments under the photos. For example, under one photo, Prince adds, “No Cure, No Pay” with an emoji. The case was brought by Los Angeles-based photographer Donald Graham against Prince, the Gagosian Gallery and Larry Gagosian, alleging that the defendants infringed the federally registered copyright in his photo, Rastafarian Smoking a Joint. Prince has asked the Southern District of New York court to dismiss the case as  attempt to ‘essentially re-litigate’ his controversial fair use victory against another photographer Patrick Cariou.

More than £200,000 has been spent by the Welsh government defending claims for copyright infringement over its use of photographs of Dylan Thomas, figures obtained by BBC Wales have shown. Over the last 18 months, £205,417 was spent defending claims brought by Pablo Star Media Ltd. The claims relate to two 1930s images of Thomas and his wife Caitlin. The Welsh government said it was seeking to recoup the costs. A judge in Dublin threw out one of the claims last month, but Pablo Star Media - which claims it owns the copyright - has launched an appeal.

The Hong Kong copyright amendment bill has failed to pass before the government-imposed deadline. The government plans to reshuffle the items on the agenda, meaning that the bill will not be discussed again in this legislature’s term. “We have decided to change the order of the bills to be discussed and move the copyright bill to the end of the agenda,” said the Secretary for Commerce and Economic Development Gregory So Kam-leung at a press conference.

The U.S. Supreme Court is staying out of a copyright dispute involving a Mark Towle, the California man who produced $90,000 replicas of the Batmobile for car-collecting fans of the caped crusader. SCOTUS has let stand the 9th Circuit Court of Appeals ruling that said the Batmobile's bat-like appearance and high-tech gadgets make it a character that can't be duplicated without permission from DC Comics, the copyright holder.

There's an interesting article from Tucker Arensberg on the JDSupra website that looks at the recent case, Dryer v. Nat’l Football League, No. 14-3428, 2016 WL 761178 (8th Cir. Feb. 26, 2016) - where former National Football League players sued the NFL over the use of their name, image, voice, and likeness in films and promotional videos released by NFL Films. The Players did not dispute the NFL’s right to record their performance in live sporting events, or the NFL’s valid copyright in the footage.  Rather, the Players challenged the NFL’s right to further use this footage by incorporating it into other films and promotional videos. The question before the Court was whether or not the district court erred in finding that the Copyright Act preempts the Players right-of-publicity claims.  The appellate court said no error - the Copyright Act prevails.

And finally - this one could be fun: Author Erick DeBanff, a self help guru who promotes living your life "to the max", has filed a lawsuit is against Google for copyright infringement, because it appears that Google (as TechDirt puts it) used a 'kind of trite message' in a commercial about making every moment matter - in the same way that Debanff subtitled his book. DeBanff's book is called "Vie Max" which also seems to be the name of the movement/fad/concept/something that he's selling. But the subtitle is "How to live the next 2 billion heartbeats of your life to the max." The claim says the wording in Google's ad "are essentially a direct copy of the words and philosophy in Mr. DeBanff's book and is a violation of the U.S. Copyright Act.". We shall see!

Farewell Sir George Martin. A wonderful and inspiring musician and producer - and a true gentleman.

IFPI and Sound Exchange make ISRC Codes publicly accessible for the first time

The international trade body for the recording industry, IFPI, has partnered with the world’s biggest digital Collective Management Organisation, SoundExchange, to create a new website that will make it easier to identify sound recordings.  SoundExchange collects and distributes royalties on the behalf of sound recording copyright owners for non-interactive digital transmissions, including satellite, Internet radio, and cable television music channels. In addition to music, SoundExchange also collects royalties for comedy and spoken word recordings.

The ISRC Search Site will provide access to nearly 20 million unique recordings, enabling recording artists, rights owners and music services to quickly identify data associated with sound recordings. The initiative will increase transparency and efficiency in the handling of data about recordings.

ISRC (International Standard Recording Code) is the standardised identifier for recorded music and is a unique code assigned to every single music recording or music video to ensure their usage can be tracked and accounted for.  IFPI manages the ISRC system globally under an appointment from the International Organisation for Standardisation.

For the first time, ISRC codes – supplied directly from record companies across the globe - will be publicly accessible and searchable. 

Commenting on the launch of the new platform, IFPI’s Chief Executive, Frances Moore, said, “The ISRC Search Site will give a new level of accessibility to help musicians, performers, managers, music publishers, and many others understand where their music has been used whilst also facilitating more accurate reporting by users of digital music. With the quantity of data expected to grow as we move deeper into the digital age, this tool will be vital to ensuring better communication throughout the music ecosystem.

“We’re delighted that SoundExchange has developed this much-needed tool to help our record company members.  As the world’s biggest CMO, they have an unparalleled platform to deliver the underlying technology and data this industry needs.”

SoundExchange President and CEO, Michael Huppe added: “We created this critical resource to improve our own efficient royalty processing, and we are delighted now to give the music community access to this data. This is part of our ongoing commitment to develop products and services that help the music industry move forward. We eliminate friction through better and more efficient technology solutions, so creators in the music community can focus on the music.”

The free search tool, which is an extension to the ISRC website managed by IFPI, will allow anyone to search either by artist/track or by ISRC code to find various products that a given recording appears on.  Selected data of interest can then be transferred to a “cart” where it can be downloaded as a CSV file.

The site is an "important first step in boosting accuracy, automation and efficiency within the data-processing that underpins the use of digital music by broadcasters, digital music services and any company that uses music online."

One might wonder why it took so long!

On of the biggest failings for the music industry was when the Global Repertoire Database hot the rocks in 2014 and was cancelled, although PRS for Music said at the time that it remained “committed to the principles of a single point of works registration” and hoped lessons learned from the GRD could be employed in future song ownership data ventures.

Now hot on the heels of the news that in the UK, PRS for Music and PPL (Phonographic Performance Limited) are forming a joint venture to licence song and sound recording performing rights together, perhaps we are finally looking at a scenario where licensees - the actual users of music who create revenues - can easily identify who controls any songs or musical works AND sound recordings they wish to make use of, ultimately facilitating the more efficient distribution of royalties to the rights holders who are due payment

The ISRC Search Site can be accessed at  https://isrc.soundexchange.com or via the IFPI site https://isrcsearch.ifpi.org.

http://www.completemusicupdate.com/article/prs-confirms-global-repertoire-database-cannot-move-forward-pledges-to-find-alternative-ways/

Live music sector put CMO 'kickbacks' into the spotlight

John Webster with Anthony Addis and Paul Crockford

They may not want to be in the spotlight, and the until recently practices of 'discounts' or 'rebates' offered by European Collective Management Organisations such as Buma-Stemra in Holland and GEMA in Germany to large and established live music promoters and venues were relatively unknown. But 2016 saw the topic rear up as one of the main talking points at this year's International Live Music Conference (ILMC). The Conference held a packed main conference session dedicted to the topic and with managers for Mark Knopfler and Muse on the Stage along with representatives from two Collection Societies, and many artiste and songwriter representatives expressed their anger at the practice,

Back in July 2015 Music Law Updates reported that Dutch collection society Buma’s practice of rewarding the country’s biggest promoters with a kickback for ‘helping’ to collect the levy on live music concerts (which is meant to remunerate songwriters and music publishers for the use of their works) had come under fire after a number of tour accountants for performers who pen their own material could not reconcile deductions made by promoters against revenues received by their songwriter clients from their own collection societies – even after taking into account usually collection society commissions which are generally accepted. Buma apparently set up the practice around 1999 after forcing through a rate rise for the use of music to 7% of Box Office net of VAT  – but was offering a 25% kickback of that levy to some promoters and venues in the Netherlands.

Two managers, Paul Crockford who manages Mark Knopfler and Brian Message of ATC who manages Nick Cave & the Bad Seed,  both made arrangements with their artistes’ publishers and UK music collection society PRS for Music (the so called 7G arrangement) to make direct collections from promoters. Message also manages P J Harvey and Radiohead and Crockford also manages Level 42.

Whilst many artiste managers are now asking for ‘transparency’, the UK’s Music Managers Forum says that the people who lose out in this situation are the performer artists (who are suffering the deduction), and the writers and publishers (who are not receiving the full amount being deducted on their behalf). The MMF says discussions between Byma, PRS for Music and the MMF have failed to resolve matters

Ruben Brouwer, head of legal affairs at Live Nation owned Mojo Concerts, has suggested a flat rate of 5.25% should apply to all promoters and venues in Holland. The rate in the UK is 3% of Box Office, although the PRS are now running a consultation with the presumed hope they can raise this. Some promoters and venues have refused to accept a new version of the rebate scheme offered by BUMA, and are taking BUMA to the Supervisory Board for collection societies in The Netherlands.

The ILMC proved to be a timely update on the topic - with the revelation that not only was the practice widespread across mainland Europe - but had been going on for many many years. The main panel  Performance Royalties: Shows, Songs & Settlements pulled no punches in regard to one of the most contentious issues facing payments from international collecting societies and the controversy around discounts that are applied.

The ILMC panel

Jon Webster - President of the MMF opened by asking if performance royalties should be seen as a tax. “It’s equitable remuneration,” he said. “It is part of the show.” Paul Crockford then explained how he first became aware of the issue in 2010 when Mark Knopfler  was touring in the Netherlands and their tour accountant spotted some issues going through the receipts. “In his follow up work he noticed there was a massive discrepancy between the amount that Buma had received and passed onto PRS versus what was in the settlement that Mojo Concerts had deducted on the settlement itself,” he said. Despite raising this with PRS in the UK, he felt that nothing was actually achieved when it contacted Buma.

“There was a discount, rebate, kickback or however you want to define it that Buma had agreed with Mojo Concerts,” he says. “When we fronted it up with Buma, the argument presented was that in an effort to increase the live rate, which Mojo had refused to go along with, they gave Mojo a discount based on the fact that they do a vast number of shows in Holland. It was on the basis that, hopefully, they would generate more income across the board from other promoters who work in that same semi-monopolistic position.”

Crockford claimed that very few people knew that any of this was happening. “Also Mojo wasn’t declaring that discount as part of the show income. Their argument was that it was money they got back from Buma and it doesn’t matter to them where it comes from, as it’s not part of the show’s settlement. My argument, of course, was that it was exactly the opposite. Buma should not be discounting my artist’s income. If they are, that money should go into the show instead of making its way into Mojo’s already stuffed pockets.”

Anthony Addis (of Brontone Management) said he asked for a “bible” in 2009 explaining which markets did discounts and at what rates. “Discounts or rebates – they are both the same to me as an artist manager,” he said. “Every collecting society only has to pay out to the PRS exactly what it receives. When you are talking about discounts or whatever, if the collection society receives the full amount, then that money should fall through the PRS, less its administration charge for that collection society in that country.”

Then it was the turn of the Collection societies. John Sweeney (of US society SESAC, but formerly of the PRS) revealed this topic has a much longer history. “20 years ago, U2 tried to do a cradle-to-grave royalty account for a European tour and found that the figures didn’t quite add up,” he explained. “We looked to see what we could do to make the sums add up but we never managed to achieve it or even get close. This discount or rebate was probably always going on but not known about. To make it a bit more complicated, the collecting society agreements are blanket licenses. Even though you can see what came from the box office and what you should be paid, there are always adjustments from past performances paid.”

Martin Vierrath of GEMA had bravely agreed to be on the panel - BUMA had declined to speak publicly on the issue at the ILMC. Vierrath explained how the system in Germany worked, something that appeared far more complex than anyone presumed. He says there are different rates deducted from gross tickets sales to remunerate songwriters - depending on the size of the venue. For mega acts (playing to 15k+), it’s a 7.65% deduction on the box office; for venues between 2k and 15k, it’s 7.2%; and for venues under 2k, it’s 5%. He then said there were moves to standardise that, which initially met with approval. When he revealed that the rate GEMA was now looking at would be 10%, there were loud gasps from the audience. However from this GEMA take their own administration fee (said to be 15%). On TOP of this is a discount for the larger promoters of 14.5% and then an additional 20% discount or rebate available to members of the German concert promoters association BDV (Bundesverband der Veranstaltungswirtschaftand) one other trade body. BDV president Jens Michow was in the audience and explained these rebates as way of regarding the promoters for probiding accurate set lists - although as Paul Crockford remarked from the stage - it was an expensive service and he couldn't understand why BDV member's rebates didn't come from the GEMA deduction - which of course was meant to cover the costs of adminsitration of collection. Michow, a lawyer, and Vierrath both said the rebates were specifically provided for in German law.

In the UK the PRS tariff is 3%, but as said above, the PRS are currently undertaking a consultation to revise the rate, looking at the possibility of widening the sources of revenues that the rate can be applied to (such as secondary ticketing, sponsorship and car parking) and of rising the 'headline' rate. Festival promoters are looking for a reduction in the rate to reflect their own business models. 

Crockford revealed that for Knopfler’s most recent tour in Germany he invoked clause 7G to withdraw the relevant live performance right from the PRS and collect direct from promoters (a situation made simple by the fact that Knopfler only plays his own songs and there is no support act). “I collected direct this time,” he said. “I didn’t use GEMA. I took my artist out and we collected direct. We got it on the night  and we got it all.”

Maria Forte (Maria Forte Music Services) explained how complex it can be for acts of a certain size, saying she was brought in by Iron Maiden’s management as they felt they weren’t getting what they were due - again with the amounts deducted in settlements not reflecting the amounts received back to remunerate the band's songwriters. In order to make sense of it all, she got access to their accounts and she logged six years (covering three tours) of accounts (by tour, territory, show, setlist and writer). She then logged that all through the PRS statements that came in. “I discovered that there had been discounts that had been applied but that hadn’t come through. I could see there were big variances with certain territories.” She added, “There were big territorial variances. We found there were discounts that were applied but not at the settlement point. We also found the box office amounts were under-declared and that would naturally reduce the percentage.”

Webster ended by saying “This is going to run and run but we are moving in the right direction,” he said. “Everyone –managers, agents – is learning what is possible and where we are all going with this. I’d like to see us end up with a simpler system and a much more transparent system. Because of what has happened over the past three or four years, people are beginning to shine a light on this area and it will end up in everyone’s better interest".

This writer remains concerned: The German rebates may well be provided for in German law -  but it doesn't mean that law is fair to songwriters, correct of even valid within the European Union. In another series of cases in the live music sector, German tax withholding laws were struck down (notably FKP Scorpio Konzertproduction Gmbh v Finanzamt Hamburg-Eimsbüttel ECJ C290-04) and it would be interesting to see what European Commission competition regulators and the Court of Justice of the European Union make of a system set up by a CMO (itself a monopoly) that then rewards dominant players and national trade association members - within an open common market, where competition laws trump all. The revelations have also come at an interesting time for European collection societies - already being looked at as they are almost always defacto monopolies.

The topic also came up at a second panel which included CAA co-head Mike Greek (One Direction, Sigur Rós, Sam Smith), Red Light Management’s UK MD James Sandom (Bastille, Kaiser Chiefs, The Vaccines), and ITB's Lucy Dickins (Adele, Mumford & Sons, Jamie T): pecifically, the practice of collecting societies granting promoters discounts that don’t end up with the artists. The panel agreed that this was an unacceptable practice although noted that in the USA - where songwriters get just 1% of Box Office, “the whole topic is not a real issue in America”. The same is true for Australia, with promoter Michael Gudinski explaining “There’s never been a rebate in Australia. You get a penalty if you don’t pay on time.” That does sound like a cheaper and somewhat more transparent solution!

http://28.ilmc.com/report/meetings#forum part 2

http://www.musiclawupdates.com/?p=6378

http://www.musiclawupdates.com/?p=2745

Collective Management Organisations, Creativity and Cultural Diversity
http://www.create.ac.uk/publications/collective-management-organisations-creativity-and-cultural-diversity/

Plus Ça Change… Prince, Rastafarians, and Fair Use

You may remember that Richard Prince, the Gagosian Gallery, and Larry Gagosian have been sued by photographer Donald Graham for copyright infringement in the Southern District of New York (SDNY). Plaintiffs moved to dismiss on February 22, asserting a fair use defense (motion).

Appropriation artists and copyright

Prince used Graham’s Untitled (Portrait) to create one of the works presented at his New Portraits exhibition (see here). The original image had been cropped and posted on Instagram, without Graham’s permission, by another Instagram user, then reposted by yet another user. Prince reposted it again from his own Instagram account, adding the comment “ReCanal Zinian da lam jam,” followed by an emoji (see p. 11 of the motion).

Prince stands at the corner of fair use and copyright infringement

In his motion, Prince placed himself in “a long line of [appropriation] artists” such as Marcel Duchamp, Jasper Johns and Jeff Koons. The latter has been involved in several copyright infringement suits over his work, for instance Rogers v. Koons where the Second Circuit found no fair use. But in Blanch v. Koons, the Second Circuit found that Koon’s appropriation of a photograph reproduced, at a different angle, in a painting was protected by fair use. Following this Second Circuit decision, Judge Stanton from the SDNY denied plaintiff Blanch’s motion for sanctions, which gave him an opportunity to explain the dynamic between appropriation artists and copyright:

“Appropriation artists take other artists' work and use it in their own art, appropriating it and incorporating it in their own product with or without changes. Because of this appropriation, often (as in this case) done without giving credit to the original artist, the appropriation artists can expect that their work may attract lawsuits. They must accept the risks of defense, including the time, effort, and expenses involved. While that does not remove the appropriation artist from the protection of the statute, litigation is a risk he knowingly incurs when he copies the other's work.”

Is this case the same as Cariou?

In his motion, Prince argued that, in Cariou v. Prince, “the Second Circuit held that “appropriation art” created by Prince that is substantially similar to the artwork at issue here constituted fair use as a matter of law” and argues that the Graham lawsuit “reflects an attempt to essentially re-litigate Cariou and should be dismissed with prejudice”(p. 2).

However, every fair use case is different since fair use is a mixed question of law and fact, as acknowledged by Prince on p. 12 of his motion. In Cariou, the Second Circuit set aside five artworks, remanding to the SDNY to consider whether the use of Cariou’s work was fair. Because the case settled, the SDNY did not have an opportunity to rule on that point on remand. Whether a court will find this Prince work to be fair use is an open question.

Is Prince’s character of the use of Graham’s photograph the same than his use of Cariou’s photographs? The Second Circuit noted in Cariou that “[t]he portions of the [Cariou photographs] used, and the amount of each artwork that they constitute, vary significantly from piece to piece” (at 699). As the affirmative defense of fair use is a matter of both law and fact, Cariou cannot be interpreted as the Second Circuit having given carte blanche to Prince to create any derivative works based on Rastafarian photographs “as a matter of law.” Indeed, in Cariou, the Second Circuit took care to note that its conclusion that twenty-five of Prince’s works were protected by fair use “should not be taken to suggest… that any cosmetic changes to the photographs would necessarily constitute fair use“ (at 708).

Fair use or not?

The Graham photograph is somewhat similar to the Cariou photographs, as they are classic black and white portraits of a Rastafarian. However, if the nature of the original work is one of the four fair use factors used by courts to determine whether a particular use of a work protected by copyright is fair, the first factor, the purpose and the character of the use, is “[t]he heart of the fair use inquiry” (Blanch at 251).

A work is transformative, as explained by the Supreme Court in 1994, if it does not merely supersede the original work, but instead “adds something new, with a further purpose or different character, altering the first with a new expression, meaning or message… in other words, whether and to what extent the new work is transformative”, Campbell v. Acuff-Rose Music, Inc., at 577-578.  

What is determining is whether the new work is transformative, and Prince recognizes this in his motion (p.1). He argued that, by incorporating Plaintiff’s photograph into a social media post, and adding “Instagram visuals and text,” the derivative work has become “a commentary on the power of social media to broadly disseminate others’ work” (p.3).

To create his Canal Zone series, Prince had torn multiple photographs from the Cariou book, enlarged them using inkjet printing, pinned them to plywood, then altered them by painting or collaging over them, sometimes using only parts of the original photographs, sometimes tinting them, sometimes adding photographs from other artists. The result was declared fair use by the Second Circuit. In our case, Prince inkjet printed his original Instagram repost of the Graham picture, complete with his comment, with no further change, except for the change in format and size.

But whether a particular work is transformative does not depend on the amount of sweat of the brow, and a derivative work can be created by a mere stroke of the pen, such as Marcel Duchamp’s L.H.O.O.Q. Nevertheless, the more detailed the process to create a derivate work is, the more likely it is transformative.

It remains to be seen if the SDNY will find this new Prince appropriation work to be fair use. The court is becoming somewhat an expert on appropriation art. Jeff Koons has recently been sued in the SDNY for copyright infringement over the use of a photograph by a commercial photographer, Mitchel Gray. Gray claims that his photograph of a couple on a beach, which he had licensed in 1986 to Gordon’s Gin for the company to create an ad, was reproduced the same year by Koons as part of his “Luxury and Degradation” series. Koons reproduced the whole ad, with no change. Mr. Gray only discovered this use in July 2015 and filed his suit.

We’ll see how this case and the Koons case will proceed. ReCanal Zinian da lam jam.

Image is courtesy of Flickr user Joseph Teegardin under a CC BY-ND 2.0 license.

 

Crowdfunding May Take Fair Use Where It Has Never Gone Before

On December 29, 2015, Paramount Pictures and CBS Studios sued Axanar Productions and its principal Alec Peters, claiming that its short movie Prelude to Axanar infringes their copyright in Star Trek, as it is an unauthorized derivative work (Complaint). On February 22, 2015, Defendants filed a motion to dismiss (Motion), claiming that the complaint does not contain sufficient factual matters to put Defendants on fair notice of the claims against them.

Star Trek first appeared on television in 1966, and the original series ran three seasons until 1969. The franchise now comprises six television series and twelve movies. Another movie is set to be released on July 22, and another television show is planned. The Complaint claims that Star Trek is “one of the most successful entertainment franchises of all time.”

In one of the episodes of the original series, Captain Kirk, the captain of the U.S.S. Enterprise, meets his hero, former Starfleet captain Garth of Izar, and they discuss the battle of Axanar between the Klingon Empire and the Federation, which was won by Garth. Reading about the battle is required at the Starfleet Academy, of which Captain Kirk is a proud graduate. This is the only time the battle is mentioned in Star Trek.

 

The battle of Axanar is the topic of a short movie written, directed and produced by Defendants after a successful crowdsourcing campaign on Kickstarter. The movie has been shown for free on YouTube since 2014. Defendants are now raising money through crowdsourcing to produce a longer Axanar movie. According to Defendant’s website, the movie is in pre-production with an anticipated release in the first half of 2016.

However, Defendants moved to strike Complaint’s allegation that they “are in the process of producing a film called Axanar.” They also argued the copyright infringement claim regarding the movie is premature, at it has not yet been made, and that “seeking to stop the creation of a work at this stage would [be] an impermissible prior restraint” (Motion to Dismiss p. 10).

Fan Fiction

The Complaint states that Star Trek “has become a cultural phenomenon that is eagerly followed by millions of fans throughout the world.” Indeed, Star Trek has its own fan fiction cottage industry. It includes short stories, novels – like this one about Garth of Izar – - and even new episodes, such as those produced by “Star Trek: New Voyages,” a project which is also crowdfunded and produced by a non-profit. The first New Voyage episode was released in 2004 and the project is still going strong, without apparent concern from CBS and Paramount.

In an article published in 1997, Professor Rebecca Tushnet traces “[f]an fiction and organized media fandom… to the second season of Star Trek in 1967,” and cites a much earlier instance of fan fiction when Lord Tennyson imagined what happened next to Ulysses.

Under Section 106(2) of the Copyright Act, the copyright owner has the exclusive right to prepare derivative works. There is no doubt that fan fiction is derivative work, that is, “a work based upon one or more preexisting works.” Is fan fiction copyright infringement?

 

Copyright Infringement

Plaintiff in a copyright infringement suit must prove ownership of the copyright and must also prove actual copying. Copying may be proven by circumstantial evidence by showing access to the protected work and substantial similarity.

Plaintiffs claimed they own copyrights in the Star Trek television series and motion pictures. However, Defendants argued that the Complaint “lump[s] both Plaintiffs together and appear to allege collective ownership of all of the Star Trek [c]opyrighted [w]orks,” even though Plaintiffs cite a copyright assignment from Paramount to CBS, and “fail[ed] to specify which of those copyrights Defendants have allegedly infringed.”

Defendant, of course, had access to Star Trek. But Plaintiff must also prove substantial similarity between the original and the derivative work. The Ninth Circuit uses the extrinsic/intrinsic test created in the Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp. case. The extrinsic text is thus called “because it depends not on the responses of the trier of fact, but on specific criteria which can be listed and analyzed. Such criteria include the type of artwork involved, the materials used, the subject matter, and the setting for the subject. Since it is an extrinsic test, analytic dissection and expert testimony are appropriate” (Sid & Marty Krofft at 1164).

The Complaint claims that Defendant’s short movie is substantially similar to the Star Trek works, listing similar characters, the use of the Federation, similar costumes, sets, props, and logos, and further claims that the “feel and the mood” of Defendant’s work is similar to the original works.

It is interesting to note that the Star Trek New Voyages project has also replicated some sets of the original series, such as the transporter room, the sick bay and the bridge of the Starship Enterprise, and used Star Trek characters and costumes, without having been sued for copyright infringement.

Possible Defense

Plaintiffs argue that the Axanar short movie is neither a parody nor fair use. Defendants calls it a “short mockumentary.” Could the fair use defense be successful? Defendants did not address the issue, arguing instead that the claim is unripe.

The four fair use factors are 1) purpose and character of the use, 2) nature of the copyrighted work, 3) amount and substantiality taken, and 4) effect of the use upon the potential market.

The purpose and the character of the use factor inquiry includes whether the use is commercial. Defendants explains on their website that Axanar is not licensed by Paramount and CBS, but that it is an “independent project that uses the intellectual property of CBS under the provision that Axanar is totally non-commercial. That means we can never charge for anything featuring their marks or intellectual property and we will never sell the movie, DVD/Blu-ray copies, T-shirts, or anything which uses CBS owned marks or intellectual property.” In a crowdfunding pitch video , Alec Peters is heard explaining that CBS has “graciously allowed” that he and others make Star Trek movies as long as they do not profit from it, sell anything with ‘Star Trek’ on it, and that they “have to honor the best story - telling tradition of Star Trek.”

Indeed, this is what Star Trek New Voyages has been doing for years. Defendants claim in their Motion that Prelude to Axanar is a ‘mockumentary,’ and indeed the video narrates the battle of Axanar using a format favored by the History Channel, as explained on Defendants’ site.

As for the nature of the copyrighted work, there is little doubt that the argument would go in Plaintiff’s favor, as the television series and the movies are highly creative. The third factor, the amount taken, could be in Plaintiffs or Defendant’s favor. It is hard to say without engaging in a complete analysis.

As for the effect upon the potential market, it could be argued that it is actually beneficial for Plaintiffs, not detrimental, and thus the fourth factor could be in favor of Defendants. Professor Tushnet noted in her article on fan fiction that the great success of the official Star Trek derivative works co-existed with numerous Star Trek fan fiction, and that this “provides strong evidence against the claim that fan fiction fills the same market niche as official fiction” (p.672). Could the same be argued for the Axanar movie if it is ever produced?

This Case May Very Well Stretch the Limits of Fair Use

This case is interesting as it shows that crowdfunded User-Generated Content could stretch the limits of fair use. It seems that CBS and Paramount have tolerated Star Trek fan fiction for years, understanding that what a copyright attorney may regard as unauthorized derivative work is indeed valuable user-generated marketing and promotional content.

But written fan fiction, even if published online, may not replace the experience of watching a Star Trek movie or television show. Crowdfunding has allowed the Axanar project to be built as a non-profit project, and it would not be shown in movie theaters. But it could nevertheless compete on the market with official Star Trek movies. Watching the Axanar short movie was quite entertaining, and I expect the future movie to be as well.

Producing such fan movies is not possible without crowdfunding. As more fan fiction is likely to be financed this way in the future, it will be interesting to see the effect of this practice on fair use, although I do hope fair use will live long and prosper.

Image of Star Trek figurines is courtesy of Flickr user Kevin Dooley under a CC BY 2.0 license.

Image of Spock being watched is courtesy of Flickr user JD Hancock under a CC BY 2.0 license.