Tuesday, 31 December 2019

2019 - THE COPYRIGHT YEAR


DEAR FRIENDS: The bloggers here at the 1709 Blog have decided that this will be our very last post. We have had great fun blogging through a decade, in some very exciting times for copyright law set against a backdrop of rapid technological change in the digital age. So on behalf of Marie-Andree, John, Eleonora, Angela, Ken and Ben, can we thank you for supporting the 1709 Blog, and we wish you every happiness and success going forwards. 

2019 - what a year ! A year of reforms to copyright laws around the globe; an ongoing debate about the role of Artificial Intelligence, both in the creation of copyright and in the enforcement of copyright;  the ever developing ways in which copyright can be infringed; new ways in in which uses and indeed users might be protected by technology; ever  developing concepts such as fair use and fair dealing; and the exceptions to copyright - these were just some of our favourite themes in 2109.


JANUARY 1st 2019 saw a “public domain day” in the United States as a large number of films, books, songs, and artistic works once protected by US copyright, and all from the year 1923, fell into the public domain, including Marcel Duchamp’s original “The Bride Stripped Bare By Her Bachelors, Even (The Large Glass)”. Other works included Kahil Gibran’s "The Prophet", Virginia Woolf’s "Jacob’s Room", Agatha Christie’s "The Murder on the Links", Marcel Proust’s "The Prisoner" (La Prisonnière, vol. 5 of In Search of Lost Time), William Carlos Williams’s "The Great American Novel", H. G. Wells’s "Men Like Gods", AND any poem from Robert Frost’s Pulitzer Prize-winning compendium New Hampshire. Cinemas cOULD now screen Cecil B. DeMille’s The Ten Commandments, Charlie Chaplin’s The Pilgrim, Buster Keaton’s Our Hospitality, or Rin Tin Tin’s Where the North Begins. And theatres can have performances of songs from Noël Coward’s London Calling! or George Gershwin’s Stop Flirting without having to pay a royalty. The Chip Woman’s Fortune, the first drama by an African-American author produced on Broadway, also entered the public domain2019 also opened with the news that that a court in southern China has upheld the country's largest ever fine of 260 million yuan (37 million U.S. dollars) for copyright infringement against a media player software company Qvod. The official website of the Guangdong Court said that the Supreme People's Court of Guangdong Province had rejected an appeal against the fine. It ruled that the penalty was justified and the Shenzhen marketing supervisor, the local regulator, had the right to impose it on the Shenzhen-based company. We also had the first inklings of a lawsuit brought by the representatives of the former band Nirvana who sued designer Marc Jacobs for copyright infringement on the basis that the fashion brand’s Redux Grunge collection featured several items that allegedly resembled the Seattle grunge band’s black-and-yellow iconography. Advocate General Maciej Szpunar advised CJEU to rule that quotation exception in EU law is not limitless and that there is no fair use in the EU - and that (1) the exception within Article 5(3)(d) of the InfoSoc Directive requires one to consider the purpose of the quotation at issue, and (2) fundamental rights like freedom of expression do not allow EU Member States to go beyond the catalogue of exceptions in Article 5 to envisage new exceptions, or even introduce a general fair use clause. And finally in January (and remembering our need to always feature AT LEAST  ONE Star Wars update (even better if on May 4th of course) news broke that Lucasfilm and Disney had lifted the copyright claim on a Star Wars Theory’s Darth Vader 'Fan Film'. It seems pressure by Lucasfilm led to a change of heart by Disney, and the film stayed up


FEBRUARY, and we were back to the ongoing battle between the creative sector (rights owners and actual creators amongst others) and the technology and communications sectors on the planned revisions to EU Copyright law. Now rights holders from across the European Union, including the recorded music sector, music publishing, television and sport called for a halt to the planned reforms to copyright laws saying that recent revisions to the draft legislation meant that  "regrettably under these circumstances we would rather have no directive at all rather than a bad directive".  But interestingly this view caused a split with the actual creators of music who were taking a very different view to the corporate owners of copyrights - as they still saw big benefits from the planned Copyright Directive. Ken Moon updated us on planned revisions to copyright law in New Zealand looking at a diverse range of topics including whether a website link to infringing content stored on another website constitute copyright infringement (?) and whether content streaming should be treated the same as broadcasting under the existing right to communicate, as well as questions related to software and enforcement of copyright. Former "Fresh Prince of Bel-Air" star Alfonso Ribeiro had filed a lawsuit against Take-Two Interactive, publisher of the video game "NBA 2K," and the publisher of "Fortnite" over avatars in the games being able to do the dance that his character popularised on the hugely popular '90s sitcom, the 'Carlton Dance'. But  that actiontook a February a knock back as details of a letter from Saskia Florence at the US Copyright Office to Ribeiro's attorney, David Hecht surfaced as part of federal court documents in California. In the correspondence, Florence wrote that the moves are "a simple dance routine." adding "as such, it is not registrable as a choreographic work". But at the very same time, Marie-Andree Weiss updated us on another case in the USA involving dance steps, and the massive online video game Fortnite. Rapper 2 Milly claimed that the “Swipe It “dance, an “emote” which in 2018 appeared in season 5 of the game, infringes his copyright in the Milly Rock dance he choreographed. The Plaintiff claimed his work is protected by copyright. Defendant claims they are mere steps, which are not protectable: The Plaintiff argued “[c]opyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy.” The Defendants said “no one can own a dance step” and that “Plaintiff’s claims is based on his assertion that he has a monopoly on a side step with accompanying swinging arm movement that is then repeated on the other side.” The US Copyright Office has refused to register the Milly Rock dance, writing that “[c]horeographic works are typically performed by skilled dancers for an audience. By contrast, social dances, such as ballroom dances, line dances, and similar movements are not created by professional dancers. They are instead intended to be performed by the general public for their own enjoyment.” And finally and Perhaps in preparation for EU reforms,YouTube has announced changes to it's 'strikes' system as it applies to content flagged for violating the company’s Community Guidelines. Starting February 25th, the first time a creator’s content is flagged, they will get a one-time warning and their flagged content will be removed. Prior to this change, there was no warning, and a first strike would result in a 90-day freeze on live streaming. A second strike would result in a two-week freeze on video uploads .

MARCH opened with the news that the US Supreme Court had finally resolved the controversy surrounding copyright registration in the US:  The US Copyright Act, 17 U.S.C. § 411(a), states that “registration" of a copyright is a precondition to filing suit for copyright infringement.  Some courts of appeal interpreted “registration” as meaning “filing an application to register the copyright” while others interpreted it as “the Register of Copyrights registers the copyright.” In their decision in Fourth Estate Public Benefit Corp. v. Wall Street LLC. The US Supreme Court resolved the circuit courts split and ruled that registration occurs when the Copyright Office registers the copyright.  Only after that may a plaintiff file a copyright infringement suit. However, once the copyright is registered, the owner can recover for infringement which occurred both before and after the registration. In Rimini Street, Inc. v. Oracle USA, Inc. the Court, relying on statutory text and precedent, held that the Copyright Act's provision for the discretionary award of "full costs" does not allow courts to award costs beyond the categories enumerated in the general "costs" statute. Also in the US,a  Grand Theft Auto V 'cheat maker' was been ordered to pay $150,000 in copyright damages: Rockstar Games' parent company Take-Two Interactive won a default judgment against the developer of the GTA V cheat maker "Elusive". The Florida-based defendant was ordered to pay the defendant company $150,000 - the maximum that could be awarded as copyright infringement damages. Then news broke that defendant Erik Cameron has now admitted to copyright infringement, breach of the game's End User License Agreement, and profiting from his violations of the law, and would pay Take-Two an undisclosed sum. Cameron was also  permanently prohibited from developing, promoting, or using any software program that alters Take-Two's owned software in any way, creating derivative works, or otherwise encouraging others to follow in his footsteps. It had all been going so smoothly - but in March US publishers and songwriters hit out at an appeal made by the US streaming services, including Amazon and Spotify, who formally objected to the mechanical royalty rate set by the Copyright Royalty Board (CRB) ruling, with royalty rates for streaming and other mechanical uses set to rise 44% for the compulsory licences over the next five years. That decision was ratified in February when the CRB published the final rates and terms for songwriters. The top line revenue share figure to be paid by streaming services will rise, over a number of years, from 10.5% to 15.1%. Apple Music declined to appeal, but Spotify and Amazon both filed a notice of appeal. Pandora and Google have also asked the CRB to review its decision. In a statement the National Music Publishers Association (NMPA) said that a “huge victory for songwriters is now in jeopardy” due to the streaming services’ filings. The NMPA called the appeal a “shameful” move which equated to “suing songwriters”. The case between Nirvana and Marc Jacobs was back in the news, with the fashion brand seeking to have the copyright infringement case dismissed; Jacobs questioned whether Nirvana LLC even owned the copyright in the happy face illustration (that was seemingly created by the deceased Kurt Cobain). It then argued that - while its happy face t-shirts are clearly influenced by the iconic Nirvana merchandise, the imagery on its garments is sufficiently different to not constitute copyright infringement. Jacob's also notes that its products don't include the text  "flower-sniffin, kitty-pettin, baby-kissin corporate rock whores" which was on the back of the band's original shirts. And where the Nirvana t-shirts bore the band's name, Jacobs' say 'Heaven', albeit in a very similar font. And finally, The EU's somewhat controversial copyright reforms were adopted by the European Parliament, with 348 votes in favor and 274 against in the European Parliament, meaning Articles 13 and 11 are one step further on to becoming enshrined in EU law. In the wake of the vote, the chair of ICMP, the global trade body for music publishing, Chris Butler said: “We extend our appreciation to MEPs across party lines and EU Member States for their hard work through this challenging legislative process. We are grateful for important provisions supporting songwriters and composers, recognising that music must be given its rightful value. “We're particularly pleased to secure sector-specific safeguards for music publishers in Articles 4 and 12. These battles were hard-fought, amount to crucial wins for music in Europe and are particularly important for our independent publisher members.” ICMP Director General John Phelan commented: “Four years of titanic tussling later, our work to solve the ‘Value Gap’ now begins a new stage after this vote. Namely, to ensure that those who make the music make a fair return. ICMP will keep working with all European governments to transpose this law appropriately. ‘Safe Harbours’ must not become archipelagos for platforms to devalue music. Today redoubles our determination in that mission.” Pirate Party MEP Julia Reda tweeted that voting on individual amendments were rejected by a majority of just 5 votes, before tweeting "Dark day for internet freedom: The @Europarl_EN has rubber-stamped copyright reform including #Article13 and #Article11. MEPs refused to even consider amendments".

At the beginning of APRIL we published a very interesting update from Hayleigh Bosher on the ongoing relationship between creativity and Artificial Intelligence, and the news that Warner Music, the multinational entertainment and record label, the third largest in the global music industry, with artists from Ed Sheeran, Coldplay, Madonna to Led Zeppelin. 
had "signed" an algorithm, Endel, developed by a start-up based in Berlin, which creates tailor-made custom sound frequencies based on personal user inputs such as weather, time of day, location, and biometric details such as heart rate. The Verge also published an interesting piece titled "We've been warned about AI and Music for 50 years, but no one's prepared": Do AI algorithms create their own work, or is it the humans behind them? What happens if AI software trained solely on Beyoncé creates a track that sounds just like her? “I won’t mince words,” says Jonathan Bailey, CTO of iZotope “This is a total legal clusterfuck”. Vodafone in Germany blocked access to a popular platform where users shared links to infringing content after a complaint from music collecting society GEMA, but seemingly without GEMA securing an injunction to mandate the block. Vodafone blocked Boerse telling  Torrentfreak "On the basis of a notification from GEMA, we have set up a DNS blockade for the 'boerse.to' domain. The blockade affects Vodafone GmbH's fixed and mobile network" citing recent precedents in the German courts regarding the responsibilities and liabilities of internet companies saying "GEMA has officially sent us a notification and we have set up the DNS blockade in order to avoid a legal dispute in accordance with the principles established by the Federal Court Of Justice". adding that whilst it was "critical of these blocking requests" it would nevertheless comply with its legal obligations. Ten members of the European Parliament (MEPs) said they voted against a crucial amendment to the EU's Copyright Directive by accident, and that if they had got their votes right it would have let MEPs take a further vote on the inclusion of Articles 11 and 13, the most controversial parts of the law (and named by the tech sector as the  “link tax” and “upload filter”. A video in support of Donald Trump's 2020 re-election campaign was been removed from Twitter . The video used music from the Warner Bros Batman film 'The Dark Knight Rises' and in a statement Warner Bros. confirmed it was taking action over the video: "The use of Warner Bros.’ score from The Dark Knight Rises in the campaign video was unauthorized," a spokesperson said. "We are working through the appropriate legal channels to have it removed.” The video in Trump's tweet had been replaced by a message that it was no longer available "in response to a report by the copyright owner." And finally, Chinese authorities suspended country's largest stock images provider's website after it was found to have put its copyright mark on the first ever photo taken of a black hole. China Daily reported that Visual China Group (VCG) had published the black hole photo with a watermark to indicate ownership and that a fee was payable for use. The cyberspace affairs authority in Tianjin (North) to suspend its website. The image was from  the Event Horizon Telescope and was available for use where it was properly attributed, a position commonly taken by the European Southern Observatory and the National Aeronautics and Space Administration (NASA).


MAY began with the rather odd news that a 49-year-old German man had been found guilty of the theft of four artworks, which had been thrown away as trash by the artist Gerhard Richter some three years earlier. Richter became aware of the matter when the Gerhard Richter Archive was contacted by the defendant with a request to issue certificates of authenticity, before he would be selling the works at auction in Munich. The head of the Archive became suspicious as the sketches, though clearly authentic, were unusually unframed and unsigned. A judge in the Cologne District Court held that although the works were discarded and thrown away they still belonged to the artist, who had at the time decided to hand them over to a waste disposal facility for the purpose of disposal. The defendant was fined 3,150 for theft and the works (valued at  €60,000) were seized. Poland began an action in the CJEU against the implementation of the new Copyright Reforms in the EU, specifically with relation to Article 13 and 17 of the Directive on the ground of it being a “disproportionate measure that fuels censorship and threatens Freedom of Expression”, quoting Prime Minister Matesz Morawiecki. The deputy Foreign Minister Konrad Szymanski has also reportedly stated that such a system may result in adopting regulations analogous to “preventive censorship” which is forbidden in the Polish Constitution and other EU based treaties, raising the question of harmony of legislation. And finally in May, The United States District Court for the Central District of California ruled that Walt Disney’s “Pirates of the Caribbean” had not lifted copyrighted elements from a screenplay. The court held that core elements of the screenplay were not copied but were non-copyrightable idea, and a storyline based on pirate battles and sea monsters is central to any pirate drama and copyrighting the same would be granting excessive monopoly on generic plot-based elements. The court took into account the jurisprudential principle that the extrinsic test compares “articulable similarities between the plot, themes, dialogue, mood, setting, sequence of characters etc. and does not compare the basic plot ideas but the actual concrete elements making the narrative flow and relationships between major characters”. The court also noted that familiar scenes and themes that are staples of literature are not original enough to be protected and scenes-a-faire elements that flow necessarily or naturally from a basic plot premise cannot sustain the test of originality for being protectable and to bring in an action of infringement.


AHHH JUNE!  Rolling Stone magazine reported that the Led Zeppelin’s Stairway to Heaven case would be reheard by an 11-judge 'en banc' panel in the 9th US Circuit Court of Appeals, to look again at whether or not Zepplin's classic track plagiarised its opening riff from Spirit’s 1968 song “Taurus”.  Ken Moon let us know that the Federal Court of Australia (in APRA v Telstra & others) had granted blocking orders against internet service providers to prevent their users from accessing a number of off-shore stream ripping sites. This case targeted online sites which were facilitating the infringement of the music and sound recording copyrights embodied in promotional music videos which had been uploaded onto YouTube by recording companies. The YouTube licence and technology for allowing users to only receive streams was selected.  However various ‘pirate’ sites such as 2conv, Flv2mp3, Convert2mp3 and Flvt0 exist to receive a user request for a music video song and from the streamed video from YouTube create an audio file which is then downloaded to the user – ‘stream ripping’. Perram J had no difficulty in deciding to issue blocking injunctions against the defendant service providers to deny access. And the Supreme Court of Sweden confirmed that the storage of infringing goods with a view to selling the same may pave the way for both kinds of liabilities - civil as well as criminal. This case was reported in detail by IPKat who let us know that The CJEU had, having established that storing counterfeit goods falls within the scope of Article 4(1) of the InfoSoc Directive, left it for the Swedish courts to determine the question of criminal liability. Due to this clarification, the Swedish SC held the scope of Section 2 and 53 of the Copyright Act to include storage of goods, for commercial purposes within the scope of the distribution right. Hence, an intention to distribute has been held to be sufficient to establish Criminal Liability.  And NASA announced that it had made its entire collection of images, sounds and videos publicly available on the internet-based platform. A collection of 140,000 photos and other resources like sound samples and videos has been made available for online viewing as well as download. A huge step by the Space technology giant "towards promoting the Open Access movement" (The featured photo by NASA / Tony Gray & Kevin O'Connell).





In JULY GMA reported that Japan's Bureau of Immigration (BI) had arrested a fugitive who was said to be one on Japan's "most wanted" list - for copyright infringement. the BI press release said that Romi Hoshino alias Zakay Romi, a Japanese-German-Israeli fugitive, was arrested at the Ninoy Aquino International Airport Terminal 3. The BI said Hoshino, 28, managed "Manga-Mura," allegedly an illegal viewing website of Japanese comics or graphic novels, popularly known as manga, that operated from January 2016 to April 2018 in what is said to be the worst violation of Japan's copyright law, Manga-Mura's operation allegedly cost 320 billion yen or US$2.9 billion in damages, the Bureau reported. The Electronic Frontiers Foundation warned that the new Copyright Alternative in Small-Claims Enforcement (CASE) Act would "supercharge" a “copyright troll” industry. Readers will remember that the CASE Act aims to make it easier for independent creators to better defend their IP from theft, and was proposed in May by Democrat congressman Hakeem Jeffries and Republican Doug Collins - with widespread support from the creative industries, in particular photographers and songwriters, musicians and artists. But the EFF argues that the bill would increase the number of trolls filing “many ‘small claims’ on as many internet users as possible in order to make money through the bill’s statutory damages provisions”. And Angela Saltarelli let usa know that the US District Court, Southern District of New York had ruled that Andy Warhol's 1984 "Prince Series" (picture on the right, above) did not infringe Lynn Goldsmith's copyright on a Prince's photograph which she shot in 1981 for Newsweek but which was never published (picture on the left, above). When Goldsmith raised the issue of infringement of her work, the Andy Warhol The Foundation preemptively sued Ms Goldsmith and her company  seeking a declaratory judgement that the works based on Goldsmith's photograph did not constitute copyright infringement, being dissimilar to the Goldsmith Prince photograph and, in any event, that the series is protected by fair use doctrine. In addition, the Foundation raised also a statute of limitation defense, arguing that the three-year statute of limitation barred the defendant's claim. Goldsmith responded with a counterclaim for copyright infringement. The court focussed on fair use and found for the Foundation, finding a transformative use, employing a new aesthetic and conveying a new artistic message, that Warhol removed all protectable elements of Goldsmith's photograph in creating his Series and that Warhols use had not diminished the value of Goldsmith's work or it's potential market(s). An appeal by Goldsmith was planned!


In AUGUST Hugo Cox introduced us to the decision in Islestarr Holdings Ltd v Aldi Stores Ltd where the High Court in London found that the patterns on the lid of a make-up powder palette and embossed on the powder itself could constitute protectable copyright works, dismissing Aldi’s argument that the ephemerality of the powder design meant that it was not sufficiently fixed to be granted copyright protection. Hugo also told us that this conclusion was aligned with the CJEU’s recent ruling in Levola Hengelo on whether the taste of cheese can be protected by copyright. The CJEU reasoned:
Accordingly, for there to be a “work” as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.  In the Islestarr case, Deputy Master Linwood used the  examples of the copyright protection granted to sand sculptures that are washed away by the tide - and a personalised wedding cake that will be eaten can still constitute a copyright work. Analysing the 'thin' copyright provision in the US, the US Department of Justice, giving reasons akin to that of the trial judge, sided with Led Zeppelin in the Stairway to Heaven case. The DoJ's  amicus brief went  on to claim that the Ninth Circuit was wrong to overturn the finding of the lower court which stated the compared compositions were sufficiently similar for copyright infringement. The U.S. government explained that "even if deposit copies do not capture all details of a composition, they generally include the elements of a song, such as the melody and lyrics, that are of most importance to the copyright owner. Failure to incorporate elements such as these in the deposit copy would reflect a failing on the part of the copyright owner or its agent, not an insurmountable obstacle imposed by the statutory scheme."  The Amicus Brief argues that the only similarity between the allegedly infringing work and the original is the selection and arrangement of two basic musical elements: an A minor chord and a descending chromatic scale. These have argued to not substantially be the base of the challenge as a small standard selection and arrangement gets a fairly thin copyright protection due to the “creative” standard of Originality being prevalent in the United States. And a total of 123 musicians and recording artists joined in, publicly supporting the British rock band in their arguments saying that unless the 9th Circuit reversed  the decision it would set a dangerous precedent that would be hugely detrimental to songwriting and an assumption that “trivial and commonplace similarities between two songs could be considered to constitute the basis for a finding of infringement” and that this would confuse artists, stifle creativity, and result in “excessive and unwarranted” litigation by artists and lawyers seeking to profit from ambiguities in the law. Turning to music sampling, sampling: The European Court of Justice sided with German electronic music pioneers Kraftwerk against against hip-hop producers Moses Pelham and Martin Haas, ruling that unauthorised sampling of even brief clips of a sound recording can constitute copyright infringement as long as they are recognisable. Kraftwerk brought the action in 1999 over the Sabrina Setlur track “Nur Mir”, where Pelham and Haas used a two-second snippet of Kratfwerk's “Metall auf Metall” as a loop. In 2012, Germany's Federal Court Of Justice found in favour of Kraftwerk, in part on the basis that Pelham could have easily recreated the sound he sampled, so clipping the snippet out of 'Metal On Metal' was just laziness. Four years later the German Constitutional Court overturned that judgement, deciding Pelham's "artistic freedom" had to be considered - and that the negative impact on Kraftwerk caused by the uncleared sample wasn't sufficient to outweigh the sampler's artistic rights. The case was then referred to the CJEU who gave the win to Kratwerk.  Making clear the difference between sampling a recording and copying part (or all) of a song, Advocate General Maciej Szpunar wrote in his opinion "A phonogram is not an intellectual creation consisting of a composition of elements such as words, sounds, colours etc. A phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself" adding "Consequently, although, in the case of [other creative works], it is possible to distinguish the elements which may not be protected, such as words, sounds, colours etc, from the subject-matter which may be protected in the form of the original arrangement of those elements, such a distinction is not, however, possible in the case of a phonogram". And finally in August, and in a decision that was echoed as the year ended over the pond, Dailymotion was ordered to pay €5.5m in damages to Italian broadcaster Mediaset with the Rome court saying that Dailymotion was “entirely aware” of copyright infringement on it's platform and that safe harbour protection available to intermediaries would not apply if the intermediary did not fulfil the criteria set out in the EU E-Commerce Directive, which is the origin point of the EU Safe Harbour norms - here for failing to have a filtering mechanism and a system to automatically remove infringing content,


Buste de femme (Dora Maar) by Pablo Picasso
SEPTEMBER. EU copyright reforms had a reasonably quick impact on Google - but maybe not quite the one legislators had hoped for: The internet giant decided that it will not pay European Media Outlets to display and use their content on its search engine and Google News platform - which means 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 have Google now played a "trump card", reducing those who do not comply with Google's wishes to just a headline and a bare link to the content in Google results - results  which facilitate access to online audiences. The move was criticised by the EU Copyright rapporteur Axel Voss MEP, calling it a 'digital dictatorial' practice, France had already brought in legislation to bring the EU directive into domestic Law - and In Germany, when the law was brought in, some publishers decided to allow Google to publish their content free of cost, due to a huge drop in traffic when Google 'ignored' content they would otherwise have to pay for under the new laws.  The San Fransisco Chronicle reported 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 meant he did 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 of “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. And Pitchfork reported that an appellate court had ruled that iconic film composer Ennio Morricone could 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 transfer 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 so could be reclaimed.



OCTOBER. Current chair of the House Judiciary Committee, Jerrold Nadler, aired his thoughts on what might be the next challenges for legislating for music copyright in the USA. Prioritising the unity that led to the unanimous passage of the Music Modernization Act, Nadler opined "If you want real legislation, the different segments of the industry have to get their act together and speak with one voice," and admitting that most members of Congress aren't well-versed in music industry particulars. "Once they did that, we were able to pass legislation unanimously." Nadler then highlighted that odd anomaly in the US where there is no performing right for recorded music that are the staple of terrestrial AM/FM radio play - an almost unique position in the World adding "As terrestrial radio becomes relatively less important and streaming becomes more, the question is the extent to which broadcasters will see their interests as less opposed to performance rights. At some point, I do think we will get some [agreement], because the National Association of Broadcasters (NAB) and their people will see that their interests are less adversely affected than previously." Queen joined the long list of bands who have taken action against President Trump for using their music without permission. A campaign video featuring 'We Will Rock You' was removed from the President's Twitter feed following a copyright complaint from the band’s publisher. According to Buzzfeed, within hours of the video going live Queen had "already entered into a process to call for non use of Queen song copyrights by the Trump campaign”. After being viewed more than 1.7 million times, the video was disabled by Twitter and the post now reads: "This media has been disabled in response to a report by copyright owner.” They join REM, Prince, Neil Young, Rihanna, Nickleback and Adele (amongst others) who have objected to Trump using their music. More details on Nickleback's recent takedown can be found here. A Twitter spokesperson told CNN that the company responds to copyright complaints sent to them by a copyright owner or their authorised representatives. US comedian Jerry Seinfeld defeated a lawsuit which alleged he had stolen the idea for a TV series. But the case was decided on basis that the statute of limitations must bar the claim - and not on any infringement or otherwise. Christian Charles, a former colleague claimed he had originally pitched the idea for "Comedians in Cars Getting Coffee" to Seinfeld in 2002 - a decade before it debuted. Manhattan District judge Alison Nathan said Charles had taken too long to sue, The statute of limitations applies after three years and Charles had waited for six years to file his lawsuit after Seinfeld rejected his copyright claim in 2012, the year the first series of the show aired. In other news, The U.S. House of Representatives voted 410-6 in favor of the Copyright Alternative in Small-Claims Enforcement Act of 2019,  Seeking to address the high cost of copyright litigation, when passed into law, the CASE Act will create a voluntary 'small claims court'  within the U.S. Copyright Office, called the Copyright Claims Board. Its not without criticism: the American Civil Liberties Union argued the Act lacked procedural safeguards and could be abused by “copyright trolls” or by those seeking to silence free speech on the internet - and expose millions of Americans to liability who unknowingly violate copyright law for actions seemingly as petty as sharing photos online. And apart from the US of A? Well in London Hugo Cox explained the case of Kogan v Martina case concerning the screenplay for Florence Foster Jenkins. The question was whether it had been written solely by Nicholas Martin, as had been decided in the Intellectual Property Enterprise Court in 2017, or whether Julia Kogan was joint author. The Court of Appeal was not content with the reasoning of the lower court and ordered a retrial. Why? Well it seemed Martin had held the pen and Kogan had contributed only to the first drafts. However, the Court emphasised a joint author can be someone who only offers suggestions to the writer  – she does not necessarily have to put pen to paper or have the last word on what goes into the script. Contributions to plot ideas or inventing characters are on an equal footing with contributions to the execution of a work. And if a work has been created through a series of drafts, inputs into the earlier drafts count.


NOVEMBER. In the big news, the US The Supreme Court agreed to hear the appeal by Google in the case where Oracle accused the tech giant of violating copyright laws when developing its Android mobile platform. The court's decision to hear the case comes more than a year and a half after the U.S. Court of Appeals for the Federal Circuit ruled against Google, saying the company's unauthorized use of 11,500 lines of code in Oracle's open-source Java application programming interface was not fair use, and will provide the final say in the 2013 claim accused Google of infringing the copyright on its Java APIs in the development of Google’s Android OS. Google denied any wrongdoing and has argued, in part, that software APIs cannot be protected under US copyright law.  We opened this review of the year with a mention of AI, and with the advent of the concept of “Computer-generated works”, and with the recent advancement in the role of AI in curation of art-based copyrightable works, this debate has gained even more importance and is now the  subject of a number of major academic conferences and seminars, with the question surrounding the most appropriate path to be taken by lawmakers and courts. The US Patent and Trademark Office  launched a public consultation in this matter and issued a request for comments on IP protection of AI based innovation, on or before 16th December. The notice reads: “Artificial Intelligence (AI) technologies are increasingly becoming important across a diverse spectrum of technologies and businesses. AI poses unique challenges in the sphere of intellectual property law. At a January 31, 2019 conference on ‘‘Artificial Intelligence: Intellectual Property Policy Considerations,’’ USPTO explored a number of those challenges. On August 27, 2019, the USPTO published a request for comment regarding AI’s impacts on patent law and policy. As a continuation of this work, the USPTO is also considering the impact of AI on other intellectual property rights.”  Nigeria emphasized, via its Copyright Commission, a will to stamp out Piracy in totality. Vincent Oyefeso, the commision’s director of public affairs,said:"The NCC is not just a compliance agency, it has the power to arrest and prosecute anybody caught pirating other people’s intellectual properties.” and “Copyright owners could institute civil suit against copyright offenders, apart from the criminal suit the commission normally institutes against such offenders.” And Hypebot reported that despite an acknowledgement that the the 1923 song “Yes! We Have No Bananas” by composers Irving Cohn and Frank Silver had slipped into the public domain, Universal Music stepped up to claim ownership. Glenn Fleishman had posted a video of the song to YouTube in celebration of it entering the public domain earlier this year. He even titled it “Yes! We Have No Bananas, now in the public domain.” The video is of him and his friends and family singing it at a New Year’s Eve Party: However, Hypebot says that video has now been “claimed” by Universal Music with a claim to “monetize” the video on YouTube  - despite them "literally having no rights to speak of". Hypebot say "What’s possibly troubling is that YouTube doesn’t even seem to offer up an option for you to point out that the work is in the public domain, and even if these entities might have once had a claim on the song". 


Paris Chic, Tal R, 2017
We're nearly there - it's DECEMBER!!! And French media organisations have lodged a complaint against Google with the country's competition authority in a move over the US internet giant's refusal to pay for displaying their content. In fact the internet platform has taken the decision not to show their content at all - which in turn has reduced traffic to those sites.  Earlier this year France implemented the recent EU copyright reforms - one aim of which was to ensure publishers are compensated when their work is displayed online.  Google won't pay - but with the law now in place will only display content if they are granted gratis permission. And the APIG press alliance is not happy. Not happy at all - not least because their members have lost visibility and presumably advertising revenue - and the media organisations say the giant is abusing its dominant position in the market. French President Emmanuel Macron has already voiced his support for the press, saying that no company can "break free" of the law in France.'' And also in France, a study into Hadopi, the regime implemented to stem piracy, showed that whilst the law had reduced piracy and benefited established artists and record labels, it may well have disadvantaged emerging talent: “The introduction of the Hadopi anti-piracy law in France had a positive effect on sales for all artists, superstars as well as artists lower in the sales distribution” researcher Ruben Savelkoul said, but added “The effect is stronger for superstars, suggesting that smaller or niche artists gain exposure from illegal downloading, partly offsetting the negative substitution effect on sales - and that piracy makes it easier to discover newer music. The Nirvana case was back in the news as fashion firm Marc Jacobs submitted new arguments as to why it has not infringed the intellectual property rights of the band by selling a t-shirt that featured a version of the wobbly face image that was a staple of the band's merchandise. Marc Jacobs has so far failed to have Nirvana LLC's claim dismissed with the judge overseeing the case ruling  "a review of the images confirms that the allegation as to substantial similarity is sufficient". Now Marc Jacobs has now filed some new documents with the courts that include copyright and trademark law technicalities, and a challenge to whether or bot the claimant owns the original wobbly face image. On subsistence, Marc Jacobs cite rules and practices of the US Copyright Office which, they say, confirm that Nirvana's wobbly face image does not meet the requirements to be protected by copyright. They also note that the US Patent And Trademark Office refused to register the logo as recently as last summer, and that Nirvana LLC has failed to demonstrate that Kurt Cobain drew the wobbly face, as has been claimed, nor that rights in the drawing passed to the band's company through either explicit or implicit agreement.  Rapper Jay-Z (Shawn Carter) filed a copyright infringement lawsuit against Australian Jessica Chiha and her business “The Little Homie”, which sells hip-hop inspired clothing and apparel. The subject matter of infringement refers to the book “AB to Jay-Z” which has been created by te online retail business, and which aims to teach kids alphabets in terms of names and pictures of rappers. Since then, their imagery and names have been expended to use in a coloring book as well as clothing retail options. After being served with a legal notice, the company raised a defence of transformative use and fair use and resisted the rapper's claim, which has consequently landed them in court. As far as the claim over lyrics is concerned, the lawsuit refers to the famous quote by Jay- Z: “If you’re having girl problems, I feel bad for you son, I got 99 problems but a bitch ain’t one”, which has allegedly been appropriated by the Children’s book, as it displays on its front page a quote on the same lines, which states: “If you’re having alphabet problems, I feel bad for son, I got 99 problems but my ABC’s ain’t one.”  A Montana based clothing company called All Season All Terrain (ASAT) Outdoors is suing New York-based fashion company Supreme for copyright infringement after Supreme sold clothing printed with a copyrighted camouflage design. ASAT has told the New York District Court.that it has owned the copyright on a camouflage design since it was created in 1985. Copenhagen's maritime and commercial court found against art provocateurs Dann Thorleifsson and Arne Leivsgard -  founders of Kankse and Letho watch brands - who had purchased and then cut up Tal R's artwork "Paris chic" (for the fairly substantial sum of £70,000 at the Victoria Miro Gallery in London) The duo wanted the painting fragments to decorate the faces of their latest watches, each of which they planned to sell for at least DK 10,000.  The Danish court issued a ruling yesterday in favour of the Tal R. Consequently, the two watch designers cannot use Tal R's painting as a raw material and will have to pay DK 31,550 in legal costs. As the year wound it's way towards Christmas, the CJEU handed down its decision in the long-awaited Tom Kabinet case (Case  C-263/18 Nederlands Uitgeversverbond and Groep Algemene Uitgevers v Tom Kabinet Internet BV and Others):  the Court found that the supply by downloading, for permanent use, of an e-book is not covered by the right of ‘distribution to the public’ provided for by Article 4(1) of Directive 2001/29, but that it is covered by the right of ‘communication to the public’ provided for in Article 3(1) of that directive, in which case exhaustion is excluded under paragraph 3 of that article, saying that determined that their is no exhaustion of online media and If there is to be exhaustion of digital copies, then that must be a decision taken by the legislature after a full public policy evaluation. The Paris Court Appeal ruled in favour of the estate of late French photographer Jean-François Bauret in proceedings brought against, inter alia, US artist Jeff Koons for copyright infringement by copying Bauret's photograph 'Enfants' into a sculpture 'Naked', rejecting freedom of the arts and parody defences. AND FINALLY, the music industry ended the year on a high note with the news that the jury in the case between RIAA, which represents the recorded music sector in the US, and Internet Service Provider Cox Communications had found in favour of the record companies, primarily on the basis that Cox had set up a deliberately shoddy system for dealing with repeat copyright infringement by users on its customer base. The Digital Millennium Copyright Act states that safe harbour protection is conditional on net firms operating takedown systems and policies for dealing with repeat infringers (although the law is less clear on how those systems and policies should operate). But here Cox were found liable for the infringement by its users, of the 10,017 tracks listed in the litigation, and the  jury awarded nearly billion in damages ($99,830.29 for each infringement). Cox intends to appeal saying "We are disappointed in the court's decision" adding "The amount is unjust and excessive. The RIAA's Chief Legal Officer, Kenneth Doroshow, said: "The jury's verdict sends a clear message - Cox and other ISPs that fail to meet their legal obligations to address piracy on their networks will be held accountable. The jury recognised these companies' legal obligation to take meaningful steps to protect music online and made a strong statement about the value of a healthy music ecosystem for everyone - ranging from creators to fans to the available outlets for legitimate music consumption". 

Sadly we have lost some important creative talent this year. In music we lost bandleader Jimmy Cavallo, rapper and songwriter Juice Wrld, drummer Ted McKenna, singer songwriter Scott Walker, The Prodigy's Keith Flint, Roxette singer Marie Fredriksson, South African singer and apartheid activist Johnny Clegg, The Monkees' Peter Tork, king of the surf guitar Dick Dale, João Gilberto, the legendary Brazilian bossa nova pioneer, rock guitarist Bernie Tormé, Stephen Fitzpatrick and Audun Laading of the band Hers who were killed in a car crash along with their tour manager Trevor Englebrektson, French music producer and songwriter Henri Belolo, singer songwriter Dr John (Malcolm John Rebennack), American country musician Chuck Glaser, Brazilian singer, songwriter, and guitarist João Gilberto, Talk Talk frontman Mark Hollis, US songwriter LaShawn Daniels, the Cars' frontman Ric Ocasek, West African singer DJ Arafat, Eddie and The Hot Rods singer Barrie Masters, The Beat's Ranking Roger, Larry Wallis of the Pink Fairies, Level 42's Rowland 'Boon' Gould, and legendary drummer and co-founder of rock band Cream Ginger Baker were just some of those who passed alongside Inuit singer-songwriter and activist Kelly Fraser. Italian tenor Marcello Giordani, Japanese soprano singer Shinobu Sato, Zimbabwean musician, philanthropist and human rights activist Oliver Mtukudzi, French producer and DJ Philippe "Zdar" Cerboneschi, Bollywood film and music producer Champak Jain, the Oscar-winning composer, arranger and conductor Michel Legrand, German-American pianist, composer, arranger, and conductor André Previn, and conductor Mariss Jansons.  And the world of Film, TV and theatre lost a wealth of talent including the actors Albert Finney, Luke Perry, Vinny Vella, Rutger Hauer, Bibi Andersson, Viju Khote, Valerie Harper, Kaoru Yachigusa, Peter Fonda, Doris Day, Ramesh Bhatkar, Windsor Davies, Freddie Jones, Jan-Michael Vincent, Broadway star Carol Channing, Shaukat Kaifi (Shaukat Azmi), Anna Karina, Tatsuo Umemiya, alongside Oscar-nominated director John Singleton, British theatre director and presenter Jonathan Miller,  Japanese film director Yasuo Furuhata, Bollywood film producer Raj Kumar Barjatya, YouTuber Emily Hartridge, chef Gary Rhodes, fashion designer Karl Lagerfeld, German fashion photographer Peter Lindbergh, photographer Terry O'Neill, comedians Arte Johnson, Jeremy Hardy, John Witherspoon and Ian Cognito, The Tiger Who Came To Tea writer Judith Kerr, Doctor Who writer and script editor Terrance Dicks, author Seiko Tanabe, Nobel Prize winner Toni Morrison who was the first black woman to receive the prize for literature, critic and broadcaster Clive James, "King of the Broadway musical" Harold 'Hal' Prince, fiery U.S. theatre critic John Simon, Irish broadcaster Gay Byrne, I.M. Pei, the pre-eminent U.S. architect, Cuban ballet legend Alicia Alonso, and Puppeteer Caroll Spinney. 

So all we can do is wish you a happy and healthy 2020, and that you 'live long and prosper'.
You can catch up with Eleonora's excellent and well observed 2019 Copyright Awards on the IPKat here

The EFF also has a number of reviews of 2019,  which you can find here (on the CASE  Act) and here and here

As ever - readers will have their own views on what should (or perhaps should not) be included in the copyright year. The CopyKat writes from a UK/US, music industry and common law perspective: So please let us know if you think something important is missing - comment is free on the 1709 blog, but please be polite and thoughtful! 

And finally, on a personal note,  this review will be my last post for the 1709 Blog as me and the team take a break. Time to move on! I would never say never again, but 2020 is, for me, the time to go. It's been a blast! Ben Challis. 

THE FABULOUS IPKAT will of course continue to cover blog on all things related to IP, including copyright. 



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