THE COPYKAT

1)    Record Labels in the United States claim Copyright Infringement against COX

In another US case on the question of liability of intermediaries such as Internet Service Providers and the ambit and threshold required to prove  Contributory/Secondary infringement, US Magistrate Judge, Judge F. Anderson has taken a stance on evidentiary presentations and has blocked the request of COX to not admit certain evidence presented by the Record Labels due to alleged non-credibility, as reported by Law 360. COX had gone on to argue certain issues with the credibility of the evidence, wherein they said that the record labels had not kept all the data related to the finding of infringement (worked by the Record Labels in collaboration with Anti- Piracy agencies – Mark monitor and Audible Magic) on record.

For a claim of such secondary liability to be conclusively established, firstly a user having performed primary infringement must be shown, after which, the burden shifts upon proving actual knowledge of the infringement with the intermediary, and a positive role in promoting the same. A safe harbor protection is available to the intermediaries, which do not conclusively pursue an actual knowledge of infringement. The main argument brought in by the record labels herein is that the ISP COX deliberately had shoddy systems for dealing with infringement and infringers on their networks and produced certain evidence on it, using the worked data, but not all of it. The Judge went on to hold that, whatever is the issue with the evidence, it needs to be brought before the jury, and cannot be blocked, due to such reasons. The court concluded (as reported by Complete Music Update) that the labels weren’t under any obligation to keep all the data which they and their partners had gathered, on record.

2)    Robert “Bobby” Prince sues Gearbox, its President as well as Valve for unauthorized exploitation of copyrighted music.

The original music for the video game Duke Nudem 3d was created and composed by music composer Robert Prince, but has seemingly been used without unauthorisation (without a license or a compensation) by Gearbox Software LLC., in its new game - Duke Nukem 3d World Tour. Further, these allegedly infringing copies were conveniently distributed by another defendant, “Valve Corporation”, which even ignored a takedown notice, hence denying a claim to safe harbor. Another interesting fact to note is that the allegedly infringing game includes text specifically giving accreditation to Mr. Prince for his music, but has not compensated or even contacted Prince to get a license in the use. In light of the same, Robert Prince has filed an infringement suit in the United States District Court Eastern District of Tennessee, Northern Division. The Petition can be found here.  The game is supposed to be released on October 11^th and It will be interesting to see, how this one plays out.

3)    CJEU clears the air over conflict between Design and Copyright Protection and the ambit of Copyright.

The CJEU, in the case of Cofomel (C-683/17) decided on the issue as to whether Copyright would subsist in the designs of G-Star Raw’s Jeans and T-Shirts. The question peculiarly concerned itself with whether member states had the freedom to choose the threshold which works of applied art, industrial designs and works of design are required to meet for Copyright Protection. The Court held that, even in the cases of functional products, the ambit required for it being a work is the same and that is “the author’s own intellectual creation”, that is one reflecting free and collective choices, which could give the non-functional aspect of the work, Copyright Protection. Most importantly, as reported by IAM Media, the judgement makes it clear that an analysis of artistic merit or aesthetic impression need not be done, as it is extremely subjective and non-precise, to conclude whether a work is copyrightable or not.

This makes it clear that the aesthetic aspects of useful articles can also be protected as Copyrightable, insofar as they fulfill the originality standard of “Author’s own intellectual creation”. Read more on this on the IPKAT.

4)    STAIRWAY TO HEAVEN back in court!!

The US Deptartment of Justice had recently released their Amicus Brief in favour of Led Zeppelin in the now infamous copyright suit, covered herein by the blog. In a latest update to this case, as reported by The Rolling Stone, the case started with a filing by Michael Skidmore, a trustee representing the estate of Randy Wolfe, and this accused Led Zeppelin of stealing the opening guitar riff from Spirits' 1968 instrumental track Taurus. The case is now back in court before an 11 judge bench in the 9^th Circuit US Court of Appeals. A request to make available the sound recording was made and a claim was brought in by the plaintiff attorney saying that if these were made available, Led Zeppelin would lose out on the case. However the court observed that if the law limited the claim to the 4 corners of the deposited sheet music, and the currentthinking is that the justices feel that on that basis there was no chance the plaintiff could establish an infringement. Led Zepplin's attorney Peter Anderson argued that “There is no similarity between these two songs, but they both combine a scale, little pairs of notes that are in different melody and an eighth note rhythm.” It will be interesting to see how the court proceeds this time, in light of the Justice Deptartmen's Amicus brief.

5)    GOOGLE undercuts new EU Copyright Law

Google has decided to not pay European Media Outlets to display and use their content on its search engine and Google News platform. It has decided that it will only portray content from those media groups that have allowed free usage of the content. The EU Copyright legislation was brought in to ensure that media companies could get adequate compensation for the display of their items on platforms of these tech giants, however google has played a trump card, mostly propagating free content higher access philosophy. Google’s vice president has announced that it is upon the Europe based news published to decide if it would allow Google to show “snippets” of content or thumbnail images, however there will be no compensation paid for the same. If they don’t allow, only a headline and a bare link to the content will appear in the results. This is a major blow to media organisations which hugely depend on Google for facilitating access and to reach out to more of online audiences. This move by Google has been criticised by the EU Copyright rapporteur, referncing the move as a 'digital dictatorial' practice, with an intention to create a monopoly. This move makes the situation even worse for the publishers. This move has taken place post French legislating this EU directive in its Domestic Law. In Germany, recently after the EU Directive was complied with, some publishers decided to allow Google to publish their content free of cost, due to a drop in traffic (as hreported by Politico). In light of this, it will be very interesting to see the implications of the same and how this practice affects the news industry in the future across Europe.

This update by Akshat Agrawal

THE COPYKAT

The makers of a 'Grease' spoof have gone to the courts in the US seeking confirmation that their show is covered by the doctrine of "fair use" in retaliation to a 'cease and desist' letter from the publishers of the original musical. Grease, made world famous by the 1978 romantic comedy movie starring John Travolta and Olivia Newton-John is based on the 1971 musical of the same name by Jim Jacobs and Warren Casey. Theatre publisher Samuel French, now owned by Concord, represents the rights in the original musical.  According to Sketchworks which created the spoof 'Vape: The Musical'  the new production "uses millennial slang, popular culture, a modern lens, and exaggeration to comment upon the plot, structure, issues and themes of 'Grease' and to criticise its misogynistic and sexist elements". But Sketchworks say their argument that the play was a parody of Grease failed with Concord's lawyers and indeed the theatre that was due to host the spoof was putt off by the cease and desist letter. Sketchworks now wants "a declaratory judgment of fair use so that it may perform and otherwise exploit 'Vape' without further delay".

Buste de femme (Dora Maar) by Pablo Picasso

And the San Fransisco Chronicle reports that the San Francisco art editor who reprinted and sold copyrighted photos of paintings by Pablo Picasso as part of a reference book did have the right to do so under U.S. law - and that means he does not have to pay damages of $2.68 million ordered by a French court. In 2012 the court in Paris ruled that Alan Wofsy, had violated a previous order against making any commercial use of the photos, and ordered him to pay damages to the copyright-holder. Nearly 16,000 photos of Picasso’s works, taken from 1932 to 1970, were published in a 22-volume catalog after the artist’s death in 1973. In 1996, Yves de Fontbrune, a Frenchman who had purchased the publisher’s stock and obtained the copyright, sued Wofsy in France for reproducing some of the photos in “The Picasso Project,” a publication he offered for sale at a Paris book fair. Now U.S. District Judge Edward Davila sitting in San Jose has ruled the order is not enforceable in a U.S. court because federal law allows publishers to use copyrighted works for different purposes under the doctrine known as “fair use.” Wofsy’s book used less than 10% of the pictures in a photographic material available in a catalogue of Picasso’s paintings, which was intended for a different market and the court found that Wofsy's work did not compete with the catalogue, saying said fair use applies as the new book as the doctrine promotes “criticism, teaching, scholarship and research” by allowing copyrighted works to reach wider audiences with Wofsy's legal team saying said the judge recognised that “what he was doing, generating a reference work for libraries, academic institutions, auction houses and art collectors, is different from trying to compete” with the catalog of copyrighted photos.

Fitness firm Peloton that was recently called out for using unlicensed music and sound recordings in its popular (and profitable) exercise videos has admitted that "the challenges and complexities of music licensing are a key risk to its business". Peleton is facing a lawsuit  from a number of music publishers which alleges that Peleton's fitness videos contain unlicensed songs. Peloton countersued in April, mainly citing competition law arguments. The company is now heading for IPO and the pre-IPO filing states: "Given the high level of content concentration in the music industry, the market power of a few licensors, and the lack of transparent ownership information for compositions, we may be unable to license a large amount of music or the music of certain popular artists, and our business, financial condition, and operating results could be materially harmed" adding that despite "expending significant resources" on music licensing, the complexities of music rights ownership and song licensing meant that it could never be absolutely certain it wasn't "infringing or violating any third-party intellectual property rights" with the music already featuring in videos on its platform. At the time of the March lawsuit against Peleton  David Israelite, president and CEO of the National Music Publishers’ Association said “It is frankly unimaginable that a company of this size and sophistication would think it could exploit music in this way without the proper licenses for this long, and we look forward to getting music creators what they deserve.” The claim now stands at $300 million. Image (c) 2018 Ben Challis. 

Pitchfork reports that an  appellate court has ruled that iconic film composer Ennio Morricone can reclaim the rights to his film scores. Morricone sued Bixio Music Group in 2016 in an attempt to regain the copyrights to six of his film scores from the late ’70s and early ’80s arguing that his contract with Bixio expired in 2012 using the provisions of the US copyright law that  lets authors terminate a trasfer of rights  35 years after a work’s initial publication. The composer reportedly served Bixio a termination notice in 2012, but the company didn’t give their claim. In fact the composer lost at first instance in October 2017 when a New York federal court  determined that Morricone’s works should be considered “works for hire” and  that would block the composer’s termination rights. The U.S. Court of Appeals for the 2nd Circuit reversed that decision, saying the scores shouldn’t be considered “works for hire” in either U.S. or Italian law.

And finally, the three major recorded music labels, Universal, Sony, and Warner have issued legal proceedings against a US  internet service provider to be found liable for facilitating its customers’ copyright infringement. In their complaint, the major labels allege RCN Telecom has been aware for years of rampant copyright infringement by its subscribers, thousands of whom they assert include repeat offenders (UMG Recordings, Inc., et al. v. RCN Telecom Servs., LLC et al., 19-cv-17272 (D.N.J.)).  JDSupra reports that the federal suit contends RCN has received more than 5 million infringement notices, but turned a blind eye to music piracy by continuing to provide high speed internet to these users. The major labels claim RCN’s inaction facilitated copyright infringement and caused RCN to become a “haven for infringement.”