THE COPYKAT

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

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

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

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

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

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

DMCA, Moral Rights and Photography

A New York photographer has filed a copyright infringement suit in the Southern District of New York against a media company owning four news websites, claiming it used one of his photographs without permission to illustrate articles. The case is Theodore Parisienne v. Beasley Media Corp., Inc., 1:17-cv-02407.

Plaintiff is a professional photographer who took a picture of a man being pulled in an ambulance. The man had been struck by a subway in Queens, New York, after allegedly robbing a teenager of her smartphone. Plaintiff licensed the photo to the Daily News, who used it to illustrate its article about this event. The newspaper credited Plaintiff under the photograph.

The complaint alleges that Defendant reproduced the photograph on its four news websites to illustrate its own report on the subway robbery and accident. Defendant did not credit Plaintiff for the photography.

Plaintiff claims this is copyright infringement, as Defendant did not have permission to reproduce and to publicly display the image, in violation of Plaintiff’s exclusive rights under Sections 106 and 501 of the Copyright Act, 17 U.S.C. §§ 106 and 501. That is a classic copyright infringement complaint.

DMCA as a moral rights law

The complaint also alleges that Defendant intentionally and knowingly removed the copyright management information identifying Plaintiff as the author, which had been published under the photo in the Daily News website. Plaintiff claims that this violated 17 U.S.C. § 1202(b) protecting the integrity of copyright management information.

It is interesting to see that 17 U.S.C. § 1202(b), part of the Digital Millenium Copyright Act (DMCA), is becoming a sort of de facto moral rights law, providing authors with an enforceable right of paternity. We reported on several others cases where Plaintiff used the DMCA to enforce their right of attribution, which is a moral right, see here, here, and here.

U.S. law provides limited moral rights under the Visual Artists Rights Act of 1990 (VARA). VARA only protects “works of visual arts” which are defined by Section 101 of the Copyright Act, 17 U.S.C. § 101. Photographs are ”works of visual arts,”and thus within the scope of VARA, only if they were “produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.”

This was not the case here. This is a picture taken on the spot, in the heat of action, as the man is pulled inside the ambulance by New York City emergency medical technicians. The purpose of the image is to inform. The author did not select the subject for its aesthetic value, nor did he direct the subjects to wear special clothes, to pose a certain way, nor did he have the time to select particular lightning or lenses.

That said, copyright law does not differentiate work of art from work of lesser aim. As Justice Holmes famously wrote in 1903, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations” and this certainly applies to photographs. As long as a photograph is original, it is protected by copyright, whether is a work of art or a news photo. These two categories sometimes overlap, as in this work by Weegee, but not always. As beautiful as Weegee’s works are [and ‘beautiful’ is not a legal concept], they were not taken for exhibition purposes and even they would be outside of VARA’s scope.

Will U.S. law ever provide comprehensive moral rights?

In our case, the work is protected by copyright, and the DMCA provides its author with a claim against Defendant for alleged falsification, alteration and/or removal of copyright management information, aka right of paternity. There is still no U.S. law which could serve as a substitute to provide authors a right in the integrity of their work, another moral right, and it is unlikely such law would ever be enacted in the U.S. The U.S. Copyright Office recently undertook a public study on moral rights for authors, specifically the rights of attribution and integrity. The public comments it has received so far are here. The U.S. Copyright Office has extended the deadline for the submission of written comments, which are now due no later than May 15, 2017.

Photo is courtesy of Flickr user Dade Freeman under a CC BY-NC-ND 2.0 license.

The CopyKat

A photograph of the Northern Lights sparkling above a village in Belarus (right) has no artistic merit whatsoever according to a recent court ruling in a copyright dispute between a well-known photographer and Belarus's state-run television network.
Belteleradiocompany, which ran a feature using photographer Anton Motolko's work that compared the hues in his photos to the red and green Belarusian flag. The television channel did not pay or credit Motolko, and had not asked permission to use the pictures.  The unauthorized use of their work is something photographers have become accustomed to in Belarus, Motolko told RFE/RL. "They [the television network] do it all the time." Motolko decided to sue. "I was asking for about 1,000 euros ($1,100)," he said. But as the case wore on, he decided to drop the amount in damages he sought to just one kopek -- less than a cent. "I wanted to be clear that this wasn't about the money, that I just wanted professional respect." But the snapper failed - key to the television network's case was testimony from an expert (paid for by Motolko) who said that Motolko's photographs did not have "any signs of creative freshness, originality, uniqueness, or exceptionality" and were simply a record of a "social event," and therefore copyright protection did not apply - that despite thet fact he drove some 60km North of his home in Minsk to find the perfect location, framed the image and used his skill and judgment editing the shot. But the decision is certainly not that out of step with decisions in some other European nations - the  French decision to deny copyright protection to the iconic image of Jimi Hendrix by Gered Mankowitz springs to mind. An appeal is planned. (Radio Free Europe/Radio Liberty).

So you thought copyright law for libraries was the same across the world. It isn’t! There’s a patchwork quilt of differing interpretations and applicable rights and exceptions, and this applies even within the EU!. Dr Kenneth Crews, on behalf of WIPO, has compiled a Study on Copyright Limitations and Exceptions for Libraries and Archives that brings together information that relates to the activities of libraries and archives from 188 countries. The study shows that whilst some 66 countries have amended or updated their copyright laws in the past 6 years, many countries still have no provision for library activity within their domestic law! Nearly half do not even explicitly allow libraries to make copies for research or study. As for adapting to the fast paced changes driven by the internet and digital activities some countries are incredibly slow to make their laws fit for purpose. Teresa Hackett, writing a CILIP blog about this also points the reader to a EIFL Core Library Exceptions Checklist which is based on the findings and provides a way to assess what you think about your laws (and perhaps identify areas where you need to find more information) in relation to library activity. It’s described as ‘a practical and, we hope, a fun way to help librarians’ and those interested in this area. Image by Marcus Hansson. 

In its much awaited judgment in the Delhi University photocopying case (The Chancellor Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services), the Delhi High Court has dismissed the copyright infringement claim initiated in August 2012 by three publishers (Oxford, Cambridge and Taylor & Francis) against a photocopy shop located in the premises of Delhi University. The publishers argued that the creation of course packs and the photocopying of academic material amounted to an infringement of the exclusive copyright of the authors and publishers, the defendants argued that the reproduction of materials for educational purposes fell within the exceptions to copyright under Section 52(1)(i) of the Indian Copyright Act - and prevailed with the court noting changes in both technology and student approaches to studying, and saying: "Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public." An excellent report fro Lawrence Liang on Hindu,com here and comment on Forbes here and TechDirt here who add that the court also noted the hypocrisy of lawyers who regularly photocopy things "now complaining about students doing the same". Image courtesy of Solomon203.

And finally - whilst there have been some dark mutterings in Europe from songwriters and self composing performers about the activities of CMOs, including Buma-Stemra and GEMA, who have been offering established concert promoters 'discounts' or 'kickbacks'  on published public performance tariffs - and indeed in Spain the Supreme Court ruled that SGAE's tariff was abusive and ordered the CMO to scrap the rate and set up a new fair tariff - in Macedonia things have gone a lot further: Local music CMO ZAMP, previously the sole music copyright collection organization for Macedonia, has withdrawn ALL broadcast licences because Macedonia's culture ministry allowed the formation of a second collection group alongside new rules governing how much money ZAMP can deduct from its members for its administration services.  ZAMP has informed Macedonia's broadcasters that they may not play any music created by Macedonian artists, whom ZAMP claims to represent with ZAMP saying “Their goal is to divide the authors and to put a hand on the money collected by ZAMP. Thus the new association, SOKOM MAP, has become an instrument in the culture ministry’s hands,” SOKOM MAP says it is an independent non-profit group representing songwriters.