THE COPYKAT

The UK's Intellectual Property Office has said it has plans to simplify the way websites which contain copyright infringing material are blocked - currently the system is based on injunctive relief that must be obtained from a court - giving orders are often easy to circumvent. In a statement the IPO confirmed that the UK government was now considering "the evidence for and potential impact of administrative site blocking - as opposed to requiring a high court injunction in every case - as well as identifying the mechanisms through which administrative site blocking could be introduced". The IPO's announcement also covered their position on devices that came pre-loaded with apps that can be used to easily access infringing streaming and other content - something of real concern to the entertainment and sports sectors. The government's IP Minister, Sam Gyimah, said that recent criminal prosecutions of individuals concerned with the distribution of devices that enable infringement showed the  current law to be working, but he said that education of the public and the involvement of Trading Standards officers would be followed up, as would new new anti-piracy measures such as administrative site blocking.

As of the end of October, six of the eleven “Trans Pacific Partnership" member states had ratified the Trans Pacific Partnership 11 Agreement.  The agreement will go into effect in two months’ time on December 30 this year. The amendment of Japan's copyright law will be effective on the same day, and the statutory term will be extended to life + 70 years from January 2019, including for those creators whose copyrights would have expired on December 31, 2018. The Diet's Upper House approved the move to match US (and EU) law, and the provision has been retained even though the United States government has withdrawn from the TPP agreement (at least for now).  What is interesting is how the "war extension" in copyright law might (or might not) be accommodated. 

Lucien Greaves, spokesmen and co-founder of The Satanic Temple ("TST"), has tweeted that the Temple is taking legal action against Netflix in connection with the "Chilling Adventures of Sabrina". TST has decided to take this route because of what Greaves claims is copyright infringement. He claims the statue of Baphomet in the hall of the school depicted in the show is a copy of TST’s deity.

From Hell to Heaven? Led Zeppelin have asked the Ninth Circuit appeals court to reconsider its recent ruling in the "Stairway To Heaven" copyright lawsuit 'en banc' to determine the law in the case that involves allegations that the 1971 classic is rip-off of the 1968 instrumental song "Taurus" recorded by Spirit and written by Randy "California" Wolfe's whose estate brought the claim. The group's representatives argue that by overturning the original judgement, the appeals court could "cause jurors to find infringement just because the same unprotected elements are present, upsetting the 'delicate balance'" between copyright protection and the freedom of music creators to employ common techniques and musical elements when composing music" and "if uncorrected," the Ninth Circuit's recent conclusion will "allow a jury to find infringement based on very different uses of public domain material" which, it then argues, "will cause widespread confusion in copyright cases in this circuit."  You can compare the two recordings here and a very interesting analysis by TJR here.  'Top 10 Sound Alike Songs' here. 

Seven sports photographers have been given another chance to pursue copyright allegations against the National Football League (NFL) in the U.S. The World Intellectual Property Review reports that the NFL had asked that the US Court of Appeals for the Second Circuit hold an en banc rehearing of the matter, which was decided against the NFL last month - this has been denied. The 2013 complain relates to claims by the photographers against 
against the NFL, all 32 NFL teams, the Associated Press (AP), and image companies Replay Photos and Getty Images that the defendants exceeded the terms of original licence agreements that granted limited use of certain images. The case was filed in the US District Court for the Southern District of New York (image: C Watts). 

And finally, Lyor Cohen is the latest YouTube executive to take aim at the planned reforms to EU Copyright Law, and in particular Article 13. An ex-record label man himself, Cohen is now YouTube’s global head of music and he posted a warning about the new Copyright Directive saying “Let me be clear: we understand and support the intent of Article 13. We need effective ways for copyright holders to protect their content” adding “But we believe that the current proposal will create severe unintended consequences for the whole industry. We still have a couple of weeks to work together towards a better final version of the law. The music industry should really pay attention to these unintended consequences - the system that largely contributes to their success is at risk of major change in the European Union”, opining that "Remixes and covers, tutorials, fan tributes, parodies" were all at risk, and that "these are such powerful promotional tools for the industry". More on the Verge here.

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.

Photographic Copyright Infringement

Apparently it is a tough time to be a professional photographer. Last week brought news of two cases wherein multinational corporations allegedly exceeded licensing terms and consequentially engaged in large scale photographic copyright infringement.  

On October 21, a group of seven high profile sports photographers filed a federal lawsuit accusing the National Football League (NFL) of "rampant, willful and continued" copyright violations. The plaintiffs also accuse Getty Images and the Associated Press of "illegal and unethical misconduct which permitted, encouraged and contributed" to the copyright infringement. At issue were photographs shot at NFL games. These were typically licensed to the NFL through the licensing agencies, Getty Images and the Associated Press. In the complaint the plaintiffs argue that the NFL went beyond the terms of the agreement by using the photographs in connection with advertising, news reporting, promotional materials and products. Due to its market power, the NFL was able to cut deals with the licensing agencies which allowed them to use the content on a royalty free basis. The complaint, however, did not include any antitrust or unfair competition claims.

In addition, a New Jersey judge refused to dismiss a case against Pearson Education. Pearson, who claims to be the largest producer of college textbooks in the world, allegedly has infringed the copyright in four thousand photographs. The claimants, Minden Pictures (a stock-photo corporation based in California) and twelve photographers, had previously licensed Pearson to use their works within the US. They now claim that Pearson went beyond the terms of the license by distributing the photographs internationally.