THE COPYKAT - the macaque is back

New research from the UK's Intellectual Property Office (IPO) shows that internet streaming services such as Spotify and Netflix have resulted in online piracy falling to its lowest rate in years.The research shows that that 15% of internet users illegally accessed films, music and other material between March and May. This is down from 18% a year ago and was the lowest recorded rate in the five years the study has been carried out. Muasic, TV and films dominate piracted material. 

Naruto by ...... ??

We have repeatedly reported on Naruto, the rare crested macaque that took the now internationally famous 'selfie' - and the recents and unsuucesful arguments by animal rights group  PETA (People for the Ethical Treatment of Animals) to persuade the courts that the monkey should be considered the author and copyright owner of the photo saying "While the claim of authorship by species other than homo sapiens may be novel, 'authorship; under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto". US District Judge William Orrick was unimpressed and ruled that the monkey, who borrowed British photographer David Slater's camera and took the selfies, cannot own the copyright in the pictures. During a brief hearing the judge, dismissing the suit, stated: "I'm not the person to weigh into this. This is an issue for Congress and the president. If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that."  Now the group has filed an apeal with the 9th Circuit Court of Appeals. More here and here.

An infringement case against rapper Ghostface Killah has been revived after a judge ruled that composer Jack Urbont could move forward with the case. The initial lawsuit was dismissed, but in April, 2015 judges for the 2nd Circuit Court of Appeals overturned that decision. Urbont, who created the theme song for the 1960s TV version of Iron Man, filed a lawsuit in 2011, claiming Ghostface sampled the Iron Man Theme twice on his 2000 album 'Supreme Clientele'. Now Judge Peter Hall has ruled that Urbont could argue he owns the rights to the Iron Man Theme, and also suggested Ghostface and the songs' producer RZA may have infringed on the audiovisual rights for the tune, because the Iron Man track was never officially released as a single and was likely lifted from the Marvel Super Heroes show, according to RollingStone.com.

LeBron James by Keith Allison

Tattoo artists Solid Oak Sketches have lost an important battle in their claim against the animators behind the NBA 2K video game series - which feature  several NBA stars including James, Kobe Bryant and Eric Bledsoe - tattoos and all! The tattoo designers were seeking actual damages in an amount to be determined at trial, or statutory damages and attorneys' fees — but a New York federal judge on Tuesday ruled out the latter. "[I]n order to obtain statutory damages and attorneys' fees, a plaintiff must have registered its copyright prior to the alleged infringement," U.S. District Judge Laura Taylor Swain wrote. And the copyrights in the tattoos were not registered until 2015 - AFTER the alleged infringements began in 2013 with the Judge saying "[W]hen the same defendant infringes on the same protected work in the same manner as it did prior to the work's registration, the post-registration infringement constitutes the continuation of a series of ongoing infringements" The judge also dimissed a claim of willful infringemet by 2K Games and Take-Two Interactive Software, saying willfulness is not relevant to analysis of Section 412 of the Copyright Act, which imposes a bright-line rule barring statutory damages and fees if the first act of infringement happened before the work was registered.

The U.S. Copyright Office has criticized the Federal Communications Commission's plans to open up the market for pay-TV set-top boxes, FCC Chairman Tom Wheeler has been pushing for new FCC rules to open up the market for the costly set-top boxes, currently dominated by cable and satellite pay-TV providers, to let in new entrants such as Alphabet Inc.’s Google. .Mr. Wheeler’s plan has prompted strong objections from pay-TV providers and TV-program producers. They argue that the current plan could upset their carefully-negotiated contractual arrangements with pay-TV providers on issues such as channel placement and advertising. The letter from the Copyright Office appears to back those concerns, saying, “As currently proposed, the [FCC] rule could interfere with copyright owners’ rights to license their works as provided by copyright law” adding that Copyright Office is “hopeful that the FCC will refine its approach as necessary to avoid conflicts with copyright law and authors’ interests under that law.”

Its not April Fool's day is it? Anyway, the lawyer of a 90-year-old woman identified as Hannelore K, who mistakenly started filling in an art exhibit in the form of a crossword puzzle, now claims that she holds the copyright of the "new" work. The 1977 creation by the 20th-century artist Arthur Köpcke was lent to Nuremberg’s Neues Museum by a private collector, and is said to be worth around £70,000 and the woman, a retired dentist, said that she started filling in the artwork's crossword puzzle because it bore the phrases "Insert words" and "so it suits." Whilst the artwork has been clensed of her additions in biro, the lawyer has had to rebutt a police investigation into his client's behaviour and has now said that far from harming the work in question, his client has increased its value by bringing the relatively-unknown Köpcke to the attention of a wider public. Moreover, her "invigorating re-working" of the exhibit further increased its worth. Indeed, Frau K.'s lawyer claimed that her additions meant that she now held the copyright of the combined artwork - and that, in theory, the private collector might sue the museum for destroying that new collaborative work (made without his permission) by restoring it to its original state. More on Arts Technica here. Image by Chip Griffin. 

The CopyKat

Despite a $25 million rebuke by a federal jury in December for contributing to piracy on its Internet service, Music publisher BMG says that Cox Communications has not learned its lesson. BMG said Cox's network continues to be used by its customers for massive copyright infringement, undermining BMG's music sales. The company asked U.S. District Judge Liam O'Grady in Alexandria, Virginia, to grant a permanent injunction to force Cox to stop the illegal file sharing saying  “Now, more than a month later, Cox’s network continues to be the site of massive, ongoing infringement of BMG’s copyrights,” the music publisher complained.  “This ongoing infringement inflicts irreparable harm on BMG.” For its part Cox wants the jury's decision reversed as ‘a matter of law'.

In another frustrating day for the music industry, but possibly another nail in the coffin of the current tech friendly 'safe harbour' rules, another German court judge has sided with Google’s YouTube in its battle with German music performing right society GEMA, again confirming that the platform is not responsible for what its users upload. The higher regional court of Munich has now rejected GEMA’s claim for damages to the tune of around €1.6 million ($1.75 million). The court upheld a judgement by the lower regional court in Munich, which said YouTube is just a host for uploaded video.

TechDirt tells us that one of the worst abusers of copyright law (and US copyright law specifically) to censor critical speech is the government of Ecuador - focussing on the activities of Ares Rights, a Spanish company that has been regularly sending DMCA notices in the US to try to suppress any kind of criticism of Ecuador's government (and also on criticism of Ares Rights). TechDirt goes on to say "this should certainly reinforce the fact that copyright is frequently used for censorship. Sometimes it's censorship that many people approve of, such as blocking someone merely making use of someone else's work -- and sometimes it's used to censor political criticism. Until people recognize, however, that copyright is absolutely (and regularly) used for censorship, it's difficult to have any realistic discussion of how to prevent the abusive kind of censorship with kinds that people may find more reasonable."

A task force set up by the US Department of Commerce has rejected the need to introduce a compulsory license to deal with the issue of remixes although it has suggested the development of negotiated guidelines providing greater clarity as to the application of fair use to remixes; It has also recommended not to change the existing regulation on the first sale doctrine, which could have allowed digital copies of works to be traded without compensation for rights holders, and suggested a series of changes in the field of statutory damages including incorporating into the Copyright Act a list of factors for courts and juries to consider when determining the amount of a statutory damages award.   More on Music Week here and on the EFF's website here and of course on this blog - from Marie-Andree!

Ukraine's parliament is considering a bill that would require hosting services and Internet service providers to block websites violating copyright - without any form of judicial oversight. Approved in first reading on January 28th, the bill is reported;y the latest in a series of attempts by a group of lawmakers to introduce “anti-piracy” norms into legislation aimed at protecting the Ukrainian cinema, television and video industries. But the latest round of the proposed amendments could impact a broader number of online platforms and Internet users than past policies.

And now selfies ...... yes again! Firstly back to that black macaque Naruto: Remember that animal rights organisation PETA argued that non-humans like Naruto should be deemed the author of the selfie he took under the US Copyright Act and PETA would look after the macaque's rights and would use the proceeds from licensing if the photograph to benefit Naruto, his family, and his habitat? Well Judge William H. Orrick disagreed and granted a motion to dismiss the suit. But the judge has now said PETA can have a second chance and has given PETA leave to file an amended complaint—meaning that Naruto the macaque will have a second shot at claiming his copyright.

And secondly - a photo competition with a £2,000 holiday prize from Thomson Holidays has ended up in a real spat between the winners, The Bellis family whose son Jacob took a picture of himself and his dad, David, with a gurning Betty the horse in the snap - and Betty's owner, Nicola Mitchell. The Bellis' say Betty photobombed their son's selfie, which was taken on a public path, but Ms Mitchell says that even though she didn't know about the competition, she is entitled to a share of the prize as the Bell's should have asked for her permission before they took a picture of her horse saying "I didn't give him permission to use our horse in a competition" and that she would be phoning Thomson Holidays to "tell them I'm not happy". Now this is an interesting conundrum - what rights DOES Ms Mitchell have over her horse's image - or indeed what claim could she possibly have over the resultant selfie taken by a three year old boy?