THE COPYKAT

Linns Stamp News tell us that a federal judge has ordered a dispute over the "Lady Liberty" stamp that the United States Postal Service mistakenly produced in 2010 to go to trial in September. Federal Claims Court Judge Eric G. Bruggink rejected motions by both the Postal Service and sculptor Robert S. Davidson that would have effectively ended a four-year-old lawsuit over a stamp that was based on a replica of the Statue of Liberty. Davidson created the Lady Liberty replica, which stands outside the New York, New York Hotel & Casino in Las Vegas. The postal official who oversaw stamp designs later said he would have never selected that image if he had realised it featured a replica - which also would have protection as a  “sculptural work”  under the US Copyright Act with the Judge noting “There is no question that plaintiff was invoking the Statue of Liberty, in his replica, but he argues that his intent was not merely to copy and that the replica is unique.” The error was identified by Sunipix, a stock photo agency in Texas. Wikipedia says ten and a half billion of the stamps were produced.

A photographer is suing consumer products giant Procter & Gamble in the US, accusing the corporation and the world’s largest advertiser of not paying her for photos that have appeared on Olay packaging and marketing materials used around the world. The Cincinnati Enquirer reports that 46-year-old Annette Navarro has spent over a decade photographing models who have graced the packaging of a number of notable consumer products. Her photos have also been used by P&G $2 billion Olay skin care brand for 14 years. Navarro is accusing P&G of using her photos beyond the scope of her license, which limited usage to within North American and a 3 year period. 

And more photography: US District Judge Sidney H. Stein has just ruled that the case between photographer Donald Graham and 'appropriation artist' Richard Prince can proceed. Graham took issue with Prince for using his images in an exhibition of re-appropriated Instagram images at the Gagosian Gallery in NYC - and Graham never gave any permission for his image titled “Rastafarian Smoking a Joint” to be used. Many comment that any 'transformation' is minimal (at best), being little more than enlarged Instagram screenshots. Judge Stein said “The primary image in both works is the photograph itself. Prince has not materially altered the composition, presentation, scale, color palette and media originally used by Graham.” Prince escaped relatively unscathed in his last battle, Cariou v Prince, with the appellate court saying "Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five".

And finally on photography, a New York federal court judge handed a photographer a mixed result when the court dismissed her copyright infringement claim but allowed her Digital Millennium Copyright Act (DMCA) allegations to move forward in a dispute that began on Instagram. The case involves photojournalist Matilde Gattoni, based in Italy, who photographed a colourful building in Essaouira, Morocco, that included the figure of a woman in a long dress walking down an empty street. In August 2016, she placed the photograph—which has a pending copyright registration in the United States—on her Instagram page, accompanied by a copyright notice. Gattoni claims that one month later, clothing retailer Tibi copied and cropped the photograph (removing the woman) and placed this image on the company’s social media page without licensing the image or obtaining her consent to use it. But US copyright had only been applied for, not registered, so could there actually be an infringement?  There's an excellent article from Jesse M. Brody of Manatt Phelps & Phillips LLP here on Lexology that analyses this and the DMCA claim. Well worth a read.

A New York judge has dismissed a lawsuit brought the estate of promoter Sid Bernstein, who staged the Beatles’ legendary 1965 show at Shea Stadium. The Estate had argued that band’s Apple Corps had infringed on the copyright of Sid Bernstein Presents by including footage from the concert in Ron Howard's  documentary film Eight Days a Week - the Touring Years which was released in September 2016.  The Estate's action sought ownership (or joint ownership) of the master tapes and copyright by Bernstein’s company, Sid Bernstein Presents, arguing that, “[w]ithout Sid, the mastermind of the event, this film would never have been made”. In a ruling on the 26th July, Judge George B. Daniels, in the US District Court for Southern New York, said the company could not claim ownership of the footage as Bernstein did not himself film the concert, instead signing over the rights to do so to Nems. Judge Daniels held:  “The relevant legal question is not the extent to which Bernstein contributed to or financed the 1965 concert .... [R]ather, it is the extent to which he ‘provided the impetus for’ and invested in a copyrightable work" and “The complaint and relevant contracts clearly refute any such claim by Bernstein. By the express terms of the Nems-Bernstein contract, Bernstein had no control over the filming of the concert” and that the contract signed in 1965 “reserves no rights whatsoever for Bernstein in any filming or recording of the concert.”

Billboard reports that Beyonce's legal team is going to have to work a little harder to defeat a copyright infringement lawsuit over her hit "Formation." Spoken word from the late Anthony Barre (also known as Messy Mya) features on the song, and his estate sued in February for copyright infringement, (there are other claims). Barre's voice is heard saying “What happened at the New Orleans,” “Bitch, I’m back by popular demand” and "Oh yeah baby. I like that.” His sister, Angel Barre, claims the samples infringe the rights in two works of her brother's performance art, "A 27 Piece Huh?" and "Booking the Hoes from New Wildings." Louisiana federal judge Judge Nannette Jolivette Brownon denied Beyonce's motion to dismiss the copyright claim on fair use grounds and noted that Barre had made a case that Beyonce's use of the clips was not transformative and that, although the samples were short, it was a "qualitatively significant" use". Judge Nannette Jolivette didn't t agree with Barre's argument that the fair use doctrine doesn't apply to the digital sampling of a sound recording. Judge Brown also denied the motion to dismiss Barre's false endorsement and Louisiana Unfair Trade Practices Act claims, but did dismiss a claim for unjust enrichment.