THE MARS ARGO COPYRIGHT INFRINGEMENT
DISPUTE:
In a case
being tagged as “one of the most important battles” in YouTube history, Mars
Argo (Brittany Sheets) had alleged identity and copyright infringement against
Corey Mixter and Moriah Pereira (commonly known as Poppy). The grounds of the
allegation mostly related to a video put up by the duo, which was termed as a
“Mars Argo knockoff” by Sheets. The core of the dispute (as far as copyright
and image rights are concerned) rested upon the claims stating an intimation of
Mars Argo’s identity, likeness, expression of ideas, sound style and certain
other distinctive elements of Argo’s voice and look (dyed hair to a specific
Platinum color). It was claimed by Sheets in the lawsuit, that the duo tried to
emulate the look as well sound style-associated with her and tried to pass
themselves as her for commercial purposes. This law suit has however reached an
ugly settlement (details can be found here)
where the parties have agreed to never speak to or of each other and where all
the rights to the work and identity have been settled to remain with Sheets.
According to us however, a claim for fair use is bound to exist here, as there
was no substantial reproduction of the work per say, and such a restrictive
interpretation of a parody can have major ramifications on the YouTube creator
community. Even in the case of H3H3 v.
Matt Hoss, fair use was upheld on a YouTube upload which was criticising or
came into the category of a parody. Similarly, herein as well merely the style
or the way the content is expressed has been appropriated rather than the
expression itself. The intricacies of the matter are not present in the public
domain and hence an accurate analysis would be tough to construe, however I
would like to point out to the case of Campbell
v. Acuff Rose (1994) which bought in the concept of “parody as an obvious
claim of transformative and fair use”. Justice Souter in that case had held
that, parody, like comment or criticism, is bound to be covered under fair use
and Section 107 of the US Copyright Act. It is an amalgamation of reference and
ridicule which has been held to be permissible as a transformative element.
Further, the court had coined the “conjure up” test wherein it was established
that the threshold to deny a finding under fair use, in the case of a work
which was a parody, was when the parodist appropriated a greater amount than necessary to ‘recall or conjure up’ the object
of the parody. Hence, merely appropriating the sound style or look won’t
qualify as infringing content per say, as long as substantial similarity is
sufficiently established.
IS BLOCK CHAIN THE NEW SOLUTION TO COPYRIGHT INFRINGEMENT IN THE
JOURNALISM INDUSTRY?:
As reported
in Spanish by Cointelegraph, the Argentina based NEM foundation signed an MOU
with a local trade union of journalists to work upon building a blockchain
based solution for copyright protection. The issues which are sought to be
countered through this are that of content theft and royalty paying failures
amongst others. It has been developed to regulate the flow of content and
enforce licensing rights effectively. A similar arrangement was recently
entered into for a similar purpose by Associated Press (AP), to track the use
of content. AP had entered into such an agreement with CIVIL, to use its
network to track the use by potentials of created content. The main aim of the
same is to keep a check on the chain of value and ensure adequate receipt of
credit and compensation on the event of exploitation and use of a copyrighted
work. The usage of block chain technology has been hailed to be effective in
keeping track of how the information is used and avoid use for illicit purposes
like Fake News propagation. Control over all kinds of information created, with
the creator, has been argued to be the basic goal of inculcation and usage of
blockchain technology, particularly in journalism.
The method
of operation of the same has been enunciated upon by the press secretary of the
local Argentina based union of journalists – CISPREN, who states, “Authors will
be able to upload their content to blockchain, ensuring authenticity. Further,
presence of a QR code along with a digital signature will be additional
safeguards in the case of a dispute.” An advantageous implication of the
emergence of blockchain technology in the journalism domain obviously will be
the presence of a “vigilant eye” for anyone violating copyright due to a
permanent record of the work and the ability to track the usage of the work, as
has been reported
by the bitcoin magazine. However, certain anxious issues exist as well, with
the evolution of technology and the incapability of law to address the various
consequential problems associated with it. The law, is not in its current
state, woke enough to accommodate to such technological usage and there is
grave possibility of misuse. Due to the anonymous nature of blockchain based
transactions, which are embedded in an immutable manner, there is a huge
possibility of circulation of infringing content and mis-information. The
option to exploit such technology is not merely limited to rightsholders but
rather is accessible to infringers as well, and until regulation is at its
paramount, there is a certain risk associated with the adoption of newer
technological mechanisms. Certain questions like management of takedown
requests, identification of location of infringing work in an immutable
embedded world are being posed, which are imperative to be brainstormed upon
before lauding the appealing usage of such technology.
THE US “REGISTRATION”
REQUIREMENT IN COPYRIGHT LAW:
The
registration requirement is unique to the United States copyright enforcement
and has been a topic of debate, in relation to its ambit, since long. There has
been a split on the threshold requirement to fulfil “registration” amongst the
circuits, with some preferring the “certified registration complete” approach
(10th and 11th circuit) and some, the application
approach, which is limited to merely applying (5th and 9th
circuits). Even within the 6th and 7th circuits, there is
no harmony in the view adopted and there has been a multitude of opinions
flowing as to which is the most appropriate and intended one. The Copyright
office has also shown its support towards the registration approach. It’s
inclination towards the registration approach obvious, keeping in mind the
profitability that follows from it. There is an expended approach mechanism,
wherein the rightsholder can finalize upon a registration in under 5 days, upon
the payment of a hefty 800$ per claim, over and above the regular application
fee. The argument resorted to by the proponents of the registration approach is
merely grounded on the literal rule of statutory interpretation, read on the
provision which states,” no action for infringement can be instituted until
registration of the copyright claims are made in accordance of the act.” This
however goes against the creators’ interest and is a burdensome procedural flaw
in the US copyright system.
This issue
is finally being taken up the US Supreme Court, upon a certificate issue in the
matter of Fourth Estate Public Benefit v.
Wall-Street.com. The Supreme Court too on 8th January, seemed
divided on the interpretation with Justice Elena Kagen saying that the only way
to be read the statute is to imply registration as registration being made and
finalized conclusively. This was in support by Justices Sonia Sotomayor and
Brett Kavanaugh and Chief John Roberts, however the Chief also acknowledged the
technological development taking place resulting in faster infringing
mechanisms and the problems associated with waiting for completion of
registration. A purposive interpretation was also argued for by the amicus
groups in the issue like the National Music Publishers association. In my
opinion, in the current age of technological dynamism and the Copyright Act
being drafted in 1976, waiting for a registration-based practice can result in
validating infringement actions on an incidence of a lackadaisical conduct by
the Copyright office. Further, there is a chance of exploiting the literal
connotation of the provision by the Copyright office, in order to mooch of
extra money. Hence, a harmonious purposive construction is imperative to
effectively safeguard the rights of the shareholders especially in the realm of
US Copyright law, wherein the threshold of copyrightability is a minimal
modicum of creativity as compared to novelty in patent law.
COPYRIGHT IN TRADITIONAL SONGS?:
India is
known as the land of folk music because of the traditional association of music
and lifestyle even within the diverse religious and sectoral groups present. An
interesting question regarding the copyrightability of such traditional songs
has been brought in before the Bombay High Court, which is set to decide this
matter soon. Old songs which are sung in traditional community-based weddings have been argued to have been
infringed by being included in a lyrical compilation, without the earlier author’s
permission who had published the same earlier. The counter argument that has
been raised is that these songs are traditional and not owned by any individual
person. They are in the Public domain. In this light, I would like to get in
the WIPO’s interpretation of the same. The WIPO has described the
concept of Traditional Cultural expressions and has used it synonymously with
the phrase “expressions of folklore”. It has defined it to mean productions
consisting of characteristic elements of the traditional artistic heritage
developed and maintained by a community. These include verbal expressions such
as folk tales, musical expressions such as folk songs and instrumental
music. They have defined traditional as- not “old” but rather an
expression based upon tradition or associated with an indigenous or traditional
society (based on location or community beliefs) and practiced in traditional
ways. (WIPO Publication no. 489 (E), 2004). A specific expression of the same
inculcating elements of originality or in a form of a compilation has although
been held to be protectable due to involvement of sufficient skill and
judgment, which is the threshold of originality. This doesn’t seem the case for
lyrical infringements as the lyrics are always in the public domain and cannot
be specifically changed in traditional works. “Traditional” implies a community
economy, wherein authorship is not a central concern and is evolutionary in
nature.
Hence, it can easily be held
that a copyright or a monopoly right to exploitation cannot be claimed over
lyrics of a traditional song that has been published, due to it being a generic
element of a society and hence a mere idea rather than an original expression
of the same. The court in the case at hand, although, needs to analyse the work
wherein copyright is being claimed and examine whether, there are elements in
the work which go beyond being traditional and generic, and fulfil the
threshold of originality. Otherwise, a claim of copyright on an expression of a
traditional song merely lyrically written, should ideally not be sustainable
and there would be no infringement.
THRESHOLD FOR FAIR USE IN
PHOTOGRAPH PROTECTION TO BE REVISITED:
A certiorari has been filed in the United States
Supreme Court, against the decision of the 9th Circuit case of Rentmeester v. Nike, (883 F.3d 1111 (9th
Cir. 2018) wherein, it has been argued that the 9th circuits
decision is problematic and creates a circuit split, by giving “photographs a
thinner protection than any other art form”. It has been alleged that an
evaluation which requires super-substantial similarity is to be conducted which
goes against the 11th, 1st and 2nd circuit
decisions which treat the individual elements of a photograph substantially
protectable while evaluating the whole, rather merely the whole of the
expression. The background of the case dealt
with 2 photographs involving Michael Jordan jumping in the style of
ballet’s grand jete, with the ball in his left hand. However, the picture was
taken from a different angle. This issue has been previously covered by the
CopyKat in January
2015 and March
2018. The dispute in the 9th circuit case involved 2
photographers, however it brings up a highly important question of how to treat
photographs in copyright law and the concept of art within it the law - and transformative art in the context of 'fair use'. In the case of Cariou v. Price, 714 F.3d 694 (2d Cir. 2013) , substantiality was
evaluated on the basis of “character” and “aesthetics”. Similar questions have
been asked in cases like Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014), however a conclusive determination of what is to be considered of
substantial importance when evaluating similarity amongst photographs is yet to
determined. The CopyKat has its eyes set. Will it be lighting choices or
painter’s use of colours?, individual elements or the whole of a photograph?,
superficial texture or imagery? It will be really interesting to see how the
Supreme Court resorts to resolve this long standing question. In my opinion,
there is no infringement in the case at hand as separate creativity was
exercised on the part of both the fixers in terms of clicking the photograph
and the instantaneous reactions irrespective of the subject captured. It’s not
the subject pictured which is copyrightable rather the expression which comes
out of the photograph. Until and unless, the same photograph is not reproduced,
merely the subject which is fixed cannot be claimed a copyright on. The
differentiating factor from music and other forms of art and a photograph is
the creativity involved in the art of curating and the art on one hand and
merely fixing it on the other. I aint undermining the skill, judgment and
creativity involved in fixing and clicking a photograph, rather am appreciating
the intuitive technique and fixation involved in it which differs inherently
from person to person. The CopyKat is
highly excited to see what the Supreme Court opines of the same.
VIDEOGAME COPYRIGHT INFRINGEMENT
CASE RESOLVED
In the month of June 2018, Bethesda had brought in a
copyright infringement suit over is videogame mobile title Fallout Shelter against
Behavior Interactive and Warner Bros title Westworld. The main grounds alleged
were based upon similar game design, art style, animations, features and other
gameplay elements including various bugs being similar!! Notably even the
source code in the resultant game was argued to be copied by Bethesda, claiming
from an injunction from distribution and complete removal from the market. These allegations were completely denied then by
Behavior Interactive. As reported by gamesindustry.biz, the dispute has amicably
been resolved and the CopyKat can peacefully enjoy both these games now.
This CopyKat by our new intern, Akshat Agrawal. Thank you Akshat!
