THE COPYKAT

The Verge have published a new article on the role and implications of AI - artificial intelligence - in the 'authorship' of musical works - although the same thoughts must surely apply to artistic, literary and dramatic works . In 'WE’VE BEEN WARNED ABOUT AI AND MUSIC FOR OVER 50 YEARS, BUT NO ONE’S PREPARED' Dani Deahl asks some interesting questions - and find very few answers! As AI begins to reshape how music is made, how are our legal systems going to answer some messy questions regarding authorship. 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? Just a few of the thoughts in there!  Jonathan Bailey, CTO of audio tech company iZotope, seemed to most concisely sum up the issue “I won’t mince words,” he told The Verge. “This is a total legal clusterfuck.”

Bloomberg reports that a US photographer could lose some or all of a $450,000 jury award because he didn’t establish that the allegedly infringing business owner willfully infringed his copyrights by hiring a web developer who used unlicensed images. The U.S. Court of Appeals for the Ninth Circuit April 16 reversed part of a jury verdict in favor of photographer Jim Erickson in his 2013 lawsuit against Kraig Rudinger Kast holding that Erickson failed to show Kast financially benefited from the infringement or went beyond negligence into willfulness, remanding those issues back to the lower court: “Negligence is a less culpable mental state than actual knowledge, willful blindness, or recklessness, the three mental states that properly support a finding of willfulness”. And more on in a similar vein from the Second Circuit Court of Appeals in the case between BWP Media and e-commerce website Polyvore - digested by the New York Law Journal here. 

The US government has published its annual piracy report from the US Trade Representative which highlights where the US feels IP rights are most at risk. Both of America's closest neighbours, Canada and Mexico, appear on the list of countries that should be doing more to protect IP rights but special mention goes to Algeria, Argentina, Chile, China, India, Indonesia, Kuwait, Russia, Saudi Arabia, Ukraine and Venezuela. In a statement the UTSR said  "These trading partners will be the subject of increased bilateral engagement with USTR to address IP concerns. For such countries that fail to address US concerns, USTR will take appropriate actions". Drilling down into where the problems lie,The Pirate Bay gets a mention but the report acknowledges that other forms of piracy are now out-performing file-sharing. The report notes that "pirate streaming sites continue to gain popularity, overtaking pirate torrent and direct download sites for distribution of pirated content". The USTR says that the aim of its annual piracy bad boys list is "to motivate appropriate action by the private sector and governments to reduce piracy and counterfeiting".

A US federal appeals court has rejected a fair use ruling by a lower court in a case that focuses on what can and cannot be considered when applying the doctrine. The District Court in Brammer v. Violent Hues had found that the unauthorised use of a photograph qualified as fair use, even though it was a commercial use that did little to give any new meaning to the original photograph. At the time of the ruling US District Judge Claude M Hilton was widely criticised by legal observers and photographers’ trade groups who disagreed with his ruling that Violent Hues’s use of Brammer’s photo was “transformative” because Brammer had created the image for “promotional” purposes, while Violent Hues used it for “informational” purposes. The U.S. Court of Appeals for the Fourth Circuit has emphatically reversed the lower court’s ruling saying “What Violent Hues did was publish a tourism guide for a commercial event and include [Brammer’s] Photo to make the end product more visually interesting. Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet” adding “If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work” and that " “fair us is not designed to protect lazy appropriators". 

Does Axl's photograph claim carry any weight?

Guns N Roses and now AC/DC frontman Axl Rose has filed six DCMA take down notices in what is seen as an attempt remove an unflattering photo of him from a 2010 Canadian concert from the web. The requests were filed on behalf of Rose by anti-piracy firm Web Sheriff, and all target examples of the same picture hosted on Blogspot and GoogleUserContent domains which have has spawned a series of 'Fat Axl' memes relating to the singer's increased weight with labels such as 'Sweet Pie of Mine', 'Take Me Down To the Bakery City' and 'Welcome to McDonalds'.

The original image was taken by Winnipeg Free Press photojournalist Boris Minkevich, who was initially unaware that any action was being taken over the image he snapped - and who is reported byTorrentFreak to have said that the only copyright being infringed is his: "The photo was stolen off our website with no permission granted by the Winnipeg Free Press".

However Web Sheriff told TorrentFreak that all photographers at the concert were said to have been required to sign an agreement passing copyright ownership of images taken to Rose's company, The photographer cannot remember whether he signed the agreeement or not. Web Sheriff's stateent reads "

“We can gladly confirm that all official / accredited photographers at [Axl Rose] shows sign-off on ‘Photography Permission’ contracts / ‘Photographic Release’ agreements which A. specify and limit the manner in which the photos can be exploited and B. transfer copyright ownership in such photos to AR’s relevant service company.” 

When pressed by TorrentFreak on whether or not Minkevich had signed a release, Web reportedly Sherriff responded

“[If a photographer] was there and taking shots without permission or authority, then other considerations / factors would come-into-play as to what such individuals can and cannot do in terms of attempting to commercially exploit the resultant images of someone else’s show,” 

In August 2015 George Chin wrote for Music Law Updates on this topic in the wake of Irish Times  refusal to publish photographs of Taylor Swift's sold out arena show in Dublin and a later Washington City Paper (USA) article headlined  “Why we’re not photographing the Foo Fighters” - with both publications critical of "Artist Photography Release Agreements" - which the latter opined were the “exploitation of photographers, pure and simple. If a streaming music service tried to use the band’s music for free, they’d have none of it.”

You can see the image here https://torrentfreak.com/axl-rose-sends-dmca-notices-to-google-targeting-fat-photo-160605/

Self-Portraits of Robert Mapplethorpe? Portraits of Robert Mapplethorpe?

On April 6, 2016, artist and photographer James Miller, professionally known as Bobby Miller, filed a copyright infringement suit against The Robert Mapplethorpe Foundation (RMF), Sean Kelly Gallery, Skarstedt Gallery, the Guggenheim Foundation and the Whitney Museum. The case is Miller v. The Mapplethorpe Foundation, 16-CV-2510.

Mr. Miller is a photographer, writer, performance poet, actor and is also a make-up artist. He has published several books of his photographs and his works have been exhibited in the U.S. Robert Mapplethorpe was a renowned photographer in the Seventies and Eighties before his death in 1989. His work is still regularly shown around the world.

Source: The Robert Mapplethorpe Foundation 

Miller alleges that he is the author of four of Mapplethorpe’s photographs. Picture it, New York, 1979. Miller spent the evening of November 22 with Mapplethorpe in his loft on Bond Street, in downtown Manhattan, along with a friend. Miller interviewed Mapplethorpe and recorded the interview. After the three men had dinner outside, they came back to the loft. Miller then persuaded Mapplethorpe to let him put feminine make-up and accessories on him and to style Mapplethorpe’s hair, so he would look like a woman. According to the complaint, Miller then took several pictures of Mapplethorpe dressed and made-up by Miller, in Mapplethorpe’s studio, after Miller adjusted the lighting himself. Miller left Mapplethorpe’s studio without taking the roll of film. Instead, Mapplethorpe told him he would develop it and send him the pictures, but he never did so.

Miller alleges that Mapplethorpe later presented himself as the author of these photographs, as self-portraits. They are Self Portrait, 1980, Self Portrait, 1980, Self Portrait, 1980, and Self-Portrait, 1980. They became quite famous and have been shown in several shows and exhibitions, such as the 2013 show Self Portraits organized by Defendant Skarstedt Gallery and the Robert Mapplethorpe Saints and Sinners exhibition organized by Defendant Sean Kelly Gallery.

Miller alleges that he has informed defendant RMF “several times” that the photographs were authored by him and not by Mapplethorpe, and claims that RMF has infringed his exclusive rights to reproduce, display and distribute the images. Miller also alleges that Sean Kelly Gallery infringed his exclusive right to display the images, that Defendant Skarstedt Gallery infringed his exclusive rights to distribute and to display the images, and that RMF contributorily and vicariously contributed to the alleged copyright infringement by Skarstedt Gallery and Sean Kelly Gallery. Miller also alleges that both the Guggenheim Museum and the Whitney Museum infringed his exclusive right to display his works.

Plaintiff is claiming that he should recover not less than 25 million dollars from RMF for copyright infringement, not less than 20 million for vicarious and contributory infringement, not less than 10 million dollars in damages from Sean Kelly Gallery and not less than 10 million dollars in damages from Skarstedt Gallery (yep, you read that right). Damages from The Guggenheim Museum and the Whitney Museum are to be awarded at trial.

Miller is also asking the court to declare that he is the author of the photographs and thus owns their copyrights, and to cancel any other copyright registration for them. Miller registered the copyright for these four images in March 2016. The basis for registration is listed as “unpublished collection.” Indeed, Miller claims that he has not published the images at stake. The court is also asked to order the delivery to Miller of all copies of these images and all media containing these images.

The main question, of course, is how Miller will prove that he is indeed the author of the photographs. If he is able to prove his allegations, he is the author, as he styled the photos and adjusted the lightning. Mapplethorpe created several Self Portraits during his too-short career, but the four pictures at stake are the only ones where he appeared made-up as a woman. This mere fact is not enough. Was Miller able to secure the testimony of the other man who was with them on November 22, 1979?

Also, the timing of the filing is puzzling, as Mapplethorpe died almost thirty years ago, and his work is still highly-regarded. He has not been out of the public eye since he became famous in the mid-Seventies. The exhibitions organized by the two galleries which are named as defendants in this case occurred in 2013 and 2014, in New York City, not too far away from where Miller lives, in Cape Cod. So, what gives? Did Miller find a proof of his authorship after all these years, make it decades? Stay tuned…

The CopyKat - putting you in the picture?

Debate on Hong Kong's contentious copyright amendment bill was cut short in the Legislative Council not because of protests or opposition  – but because not enough members showed up. The premature adjournment came a day after the commerce minister said he was optimistic that there would be enough time for discussion, despite the nearing Lunar New Year holiday and sessions for scrutinising the chief executive’s policy address and the financial secretary’s budget speech. All but one Pan-democrats were absent when the last quorum bell rang on Friday. House committee chairman Andrew Leung Kwan-yuen, who chaired the meeting in the absence of the ill president Jasper Tsang Yok-sing, said he regretted the adjournment. More on the SCMP here.

The BBC tell us that a breach of copyright claim against the Welsh government over photographs used of Dylan Thomas in a tourism drive has been thrown out by a court in Ireland. Visit Wales used photos taken in the 1930s to help promote the 100th anniversary of the poet's birth. But the judge said that if the case was to proceed, Pablo Star Ltd, which owns the copyright. would have to bring the action in a court in Wales or England. Interstingly The Welsh government claimed it has sovereign immunity. But there was worse yet to come for a Mr Haydn Price, who owns Pablo Star Limited. The BBC again tell us that Mr Price has just lost a libel action against 93 year old Gwen Watkins, whose husband Vernon took the Dylan Thomas photos. It seems Mr Price persuaded Mrs Watkins to sell him the copyright in several of the photos for the princely sum of £1,000. The Judge in the libel case, Judge Raymond Groarke, the told Dublin's Circuit Court that he was dismissing the claim as there was no evidence that a latter from Mrs Watkins to Mr Price saying he was a 'bad man' had ever been published: The BBC report that Judge Groarke added "I am not going to go so far as to say Mr Price took advantage of Mrs Watkins but he certainly should have been a lot more careful with the way he dealt with an elderly person."  Mr Price reportedly has a “zero tolerance” approach to copyright infringement and has had some success in other actions. In the current case against the Welsh Government, it was reported that Mr Price was claiming €3,000 for every use of the photos.

Mark Towle,who made replica Batmobiles until being enjoined, has petitioned the US Supreme Court to review his dispute with  DC Comics. He argues that the Batmobile doesn't deserve copyright protection as its a 'useful article'. In february 2013 the District Court held that the “The ‘functional elements’ – e.g., the fictional torpedo launchers, the Bat-scope, and anti-fire systems – are only ‘functional’ to the extent that they helped Batman fight crime in the fictional Batman television series and movies. Thus, the Batmobile’s usefulness is a construct.”  Last September, the 9th Circuit Court of Appeals agreed. Towle had argued that the replicas were fully functioning automobile. In her opinion, 9th Circuit judge Sandra Ikuta disagreed saying the car also has "character" with "physical as well as conceptual qualities," and "sufficiently delineated" to be recognizable whenever and wherever it appears. More on the Hollywood Reporter here. The CopyKat doubts the SCOTUS will take on the case. A final knockout blow for Towle. 

Sheep on Top - and yes, (C) 2015 Ben Challis

As photography is my new hobby (and yes, I am  published!), but still reeling from that French Jimi Hendrix decision, the CopyKat was a little horrified to read that  photojournalists in Serbia have had to appeal to lawmakers to reject a proposal by the ruling party to define their work as the result of a “routine mechanical act” and therefore not worthy of copyright protection. Not worthy!!!!! Photojournalists in Serbia (and quite honestly elsewhere) frequently complain that newspapers and Internet portals publish their pictures without payment, and are happy to "risk being sued in Serbia’s overloaded, inefficient and sometimes corrupt courts." The Serbian Progressive Party’s latest proposals to parliament "would legalise such theft", photojournalists warned.

And finally, we've just been alerted to a new online music platform, Wefre, which TorrentFeak  says is clearly 'inspired' by Spotify, but which claims to use officially available APIs from licensed sources to provide 'free unlimited music' to fans. TorrentFreak says experts believe that borrows its music from YouTube's API feed and its song/album database from Spotify. A Kickstarter fundraiser is underway to help build iOS and Android apps - but we expect rapid attention from the major and leading independent record labels in the very near future. TorrentFreak says: Not only does this beautiful YouTube / Spotify mashup out-perform the recently defunct Aurous in every way, Wefre uses officially available APIs from already licensed sources. Legal? We might not have to wait long to find out.  UPDATE (30.01.16) : A two week old music streaming site, Wefre, has announced that until further legal research is done, it will close access to its music streaming platform. "Initially, the Spanish-based team didn't think that they were breaking any laws because they were providing the service through YouTube's and Spotify's official APIs for developers. Wefre claimed that they created the service whilst fulfilling the terms of use of those APIs." The team of three students behind Wefre wrote "We want to point [out] that we haven't received any official warning from Google or Spotify, we never wanted to profit at the expense of the artists and, before making a huge mistake, we want to seek advice in a smarter way."

The CopyKat - choppy seas ahead for safe harbour and fair use?

In the USA, the MPAA and RIAA are backing a new copyright curriculum showing kids how to become "Ethical Digital Citizens." But perhaps tellingly, it was only  public pressure that meant the the curriculum was edited to include the fair use principle, and the more flexible copyright licences that systems such as Creative Commons provide. And it seems this is more fair use in the lesson plans than Hollywood wanted. A series of leaked emails seen by TorrentFreak ends with the MPAA’s Howard Gantman saying  “So the end result contains sections on fair use that are more extensive than we would use if we drafted the curriculum ourselves. But overall, the effort will hopefully lead to an active program within our schools to help get kids to understand what it means to behave ethically on the Internet”.

The Indepdent reports that The High Court in Ireland has told internet service provider UPC that it must introduce a three-strikes system to help combat online piracy.  UPC is Ireland’s second largest broadband provider with 360,000 customers. It means the net firm must start sending warning letters to suspected file-sharers with the threat of sanctions against those customers who ignore the warnings, and according to the ruling the record companies need only cover 20% of the costs associated with the scheme. Mr Justice Cregan said that there was "wholesale theft"  taking place on the UPC network. He said that the constitutional rights of "a whole class of persons are not just being infringed but are being destroyed".  The downloading of music for free is destroying the intellectual property rights of creative artists and should be a matter of great concern in any civilised society, he said.

Mike Weatherley MP

As the life of the current UK Parliament ends, Mike Weatherley MP who is stepping down as a Member of Parliament has published a final Discussion Paper on copyright. Safe harbour provisions and online service providers. The former Intellectual Porperty Advisor to the UK's Prime Minister has this time focussed on 'safe-harbour' provisions in EU law, adding to the ongping debate on copyright reform in the European Union. Commenting on his latest paper, Weatherley told reporters: "I felt that it was important to continue to highlight the issues that have grave consequences for our fantastic creative industries. The creative industries are huge contributors to our economy so it's vital, in order to protect them, that the regulations which were set out in 2000 are updated. The broad scope of the [2000 E-Commerce] Directive results in rights holders losing out to pirates on an industrial scale" and the Report concludes "It does appear to me that the scope of the E-Commerce Directive today is much broader than was envisaged at the time by those drafting it. I would urge the next UK Government to enter into a dialogue with the Digital Single Market team at the EU Commission with a view to considering whether the balance remains fit for purpose."

More on safe habour: In the US, BMG and Round Hill Music continue with their action agaisnt cable company Cox Communications over its alleged inaction in forwarding warning letters to suspected file-sharers. The music firms argued that by failing to act after being alerted to piracy on its networks, Cox should lose its safe harbour protections and be held liable for the copyright infringement of its customers. The claim says Cox failed to disconnect 200,000 repeat copyright infringers. The rightsholders are requesting detailed financial information to show that the company profits from its inaction. Meanwhile TorrentFreak reports that Cox is looking into the ownership of the 1,000 odd works for which they received seven million DMCA takedown notices, and the ISP also wants an expert opinion on the source code of the Rightscorp’s crawler that was used to spot the alleged infringements.

This from InfoJustice commenting on the Lisbon Council and Innovation Economics' The 2015 Intellectual Property and Economic Growth Index:  Measuring the Impact of Exceptions and Limitations in Copyright on Growth, Jobs and Prosperity.  The report by Benjamin Gibert examines limitations and exceptions to copyright in eight OECD countries, and then describes economic growth at the overall and industry level in those countries. The key findings: “countries that employ a broadly ‘flexible’ regime of exceptions in copyright” have higher rates of growth of their overall economy, information technology & service sectors, and even traditional media sectors.  Workers in these economies also fared better, enjoying higher wages overall, in the communications sector, and technology sector. Gibert further notes other positive aspects of more open systems of copyright limitations and exceptions, such as “the promotion o0f education, independent research, free speech, user-generated content and text and data mining.”  He argues that exceptions to copyright should not be viewed as being in conflict with stronger intellectual property protection.  Rather, “the evidence suggests that broad and flexible exceptions to copyright embedded within a strong intellectual property framework may be the best way to achieve both simultaneously.

MusicTank has published a white paper called 'Private Copying Of Music: A New Model For Artist Compensation', part of the think tank's new Future Thinking programme, which aims to put out thought-provoking papers written by postgraduate students on the University Of Westminster's Music Business Management course - with this paper written by Sam Rudy.
Music Tank say that with the European Parliament’s Private Copying report (17.02.14) highlighting that there is currently no other alternative approach to compensation systems for private copying that would ensure appropriate remuneration for rights holders, this paper addresses European Parliament’s call for further discussion to be conducted in order to update the mechanisms and make them more effective, with Sally Gross, MA MBM Course Director, University of Westminster, saying " Extensively researched, this paper positions a timely and convincing argument that a private copy levy, even in these days of streaming, should still make up a substantial part of music industry finance.”

In Australia: "The Abbott government has caved in to sustained pressure from the US media industry and introduced copyright laws into parliament that appear to have the sole purpose of stamping out the rebellion against delayed access to content and rip-off prices." With access to user's metadata now provided for under the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015, Communications Minister Malcolm Turnbull introduced the Copyright Amendment (Online Infringement) Bill 2015 into Parliament on 26 March - with the revisions being blamed by many on the US driven provisions of the Trans-Pacific Partnership trade agreement and provides a procedure for web blocking in the federal courts. Interesting comment on Technology Spectaor here.

In the UK,  the transitional provisions to implement  the repeal of section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) have been published. The change means the period of copyright protection for an artistic work which has been industrially manufactured, will be extended from 25 years to the life of the author plus 70 years. The change has retrospective effect and industrially exploited designs whose copyright protection had expired under the 25 year rule will have copyright protection 'restored'.  Repeal of section 52 of the CDPA will take effect on 06 April 2020: Following the repeal, parties that are currently trading in copies will have an indefinite period to sell off their stock, and may freely deal with copies made prior to the change of the law without this being an infringement. Manufacture or importation of new unlicensed copies will however be unlawful as of 06 April 2020. A guidance will be issued. More from D Young & Co  here.

IBT reports that in recent court papers, lawyers for the Fox News network have argued that posting a third party photograph on a social media site without that person’s permission should not necessarily constitute copyright theft. Why? Because social media - in particular Facebook - is by its very definition “social.” When you "post something on Facebook, you invite other users to comment and critique it" andFox argue that this alone could satisfy the criteria for a fair use defense. Fox are a defendant in a lawsuit regarding the use of Thomas E Franklin’s iconic photograph of New York City firefighters raising the American flag over the rubble of the World Trade Center on Sept. 11, 2001, owned by North Jersey Media Group.

And again in the US, the Professional Photographers of America (PPA) is offering photographers the opportunity to learn more about copyright, and inform their local photo retailers what might constitute infringement. The goal is to reduce copyright infringement on photography nationwide during this April, which is Copyright Awareness Month with the PPA saying ""The most important point to get across to printing retailers is ‘when in doubt, never print or reproduce a professionally-created photograph without written consent from the photographe," 

A U.S. District Court judge has ruled in favor of a parody of the 1970s sitcom “Three’s Company” in a copyright infringement case. Loretta A. Preska, Chief United States District Court Judge for the Southern District of New York, ruled that ’3C,’ a play that parodies ‘Three’s Company,’ does not infringe on that copyrighted programme. Preska wrote in her ruling: “’3C’ is a fair use of ‘Three’s Company.’ The play is a highly transformative parody of the television series that, although it appropriates a substantial amount of ‘Three’s Company,’ is a drastic departure from the original. … Equating the two to each other as a thematic or stylistic matter is untenable". More here.

The National Football League and The Associated Press have defeated a lawsuit filed by freelance professional photographers who cover the NFL and challenged licensing agreements they said violated antitrust and copyright laws.
Southern District Judge Robert Sweet granted motions to dismiss by the NFL and AP, and handed a third defendant a win by granting a prior licensee, Getty Images, its motion to compel arbitration in Spinelli v. National Football League, 13 Civ. 7398.

And finally, the eight-year long battle over whether Jay Z sampled an Egyptian song and recording "Khosara, Khosara” in his hit single "Big Pimpin'” is heading to trial. Judge Christina Snyde has indicated she will dismiss the motion for summary judgment brought by Osama Ahmed Fahmy, heir to composer Baligh Hamdy, against the rapper and fellow defendants Timbaland,  Paramount Pictures, Warner Music, UMG and MTV. Fahmy had previously argued that the moral rights in the track had been were violated as the work had been “mutilated”, but the case is now focussing on whether the Jay Z and Timbaland actually had permission to use the recording as Fahmy now contends that the record company that licensed “Khosara Khosara” to Timbaland never had the right to license the song in the first place. Timbaland made a deal with EMI Arabia, which had a deal with the Egyptian record label Sout el Phan. Fahmy had licensed “Khosara Khosara” to Sout el Phan. He claims EMI Arabia’s license to the song expired in 2007 and that in all events, EMI would have needed his permission to sub-licence the track. Judge Snyder agreed that the terms of the licensing agreements presented triable issues. 

Bugged out - one snappers battle against online piracy

A pollen covered bee by Alex Wild

There is a fascinating and well written blog on Ars Technica from a wildlife photographer called Alex Wild who photographs insects - successfully - and tries to make a living out of this. It shows the 'other side' of copyright infringement: not the mass piracy of music and films and the relative might the content industries wield both legally and politically in fighting back against this - but a talented guy who understands the internet, but wants fair recompense when others use his work commercially. With 300 comments - it seems to have touched a nerve. Bugging out: How rampant online piracy squashed one insect photographer is a good read, and a licensed gallery of Alex Wild's marvellous insect images can be found here.

Innocent infringement is not a defence, says Judge Birss QC

Even if you don't think it's forbidden, it actually is ...

These are interesting times for copyright and photography in the UK.

Following by one week his decision in Temple Islands Collection (noted in this Blog here), His Honour Judge Birss QC published his ruling in David Hoffman v Drug Abuse Resistance Education (UK) Limited [2012] EWPCC 2. 

This was an action for damages for copyright infringement, brought by photographer David Hoffman against Drug Abuse Resistance Education (DARE), a now out-of-business government-affiliated charity, which operated in schools to help young people understand the dangers of substance abuse and to provide them with life skills to tackle peer pressure in this regard.

The claimant's case was that, from about 2004, the defendant's websites used 19 photographs of various drugs. The images used were apparently copies of his copyright photographs and the defendant was using them without his permission. 

Mr Hoffman issued proceedings in November 2010, under s.16 of the Copyright Designs and Patents Act 1988 (CDPA).

DARE did not dispute that the photographs were Mr Hoffman's and that it was using them without his permission. However, at the time of the alleged infringement, DARE had employed a firm to produce a website for the charity. This, claimed the charity, had found a website sponsored by the Deparment of Health (DoH) - Talk to FRANK - on which Mr Hoffman's photographs appeared. The defendant had therefore understood that the site was covered by Crown copyright, so that the text and images could be used without seeking to obtain a licence.

However, this was not the case, as copyright in the photographs - which Judge Birss recognised as being clearly original artistic works protected under s.4 CDPA  - belonged to Mr Hoffman.

This said, DARE's position was that it had not paid Mr Hoffman because it had not intentionally or knowingly infringed his copyright and that the DoH and its misleading website were the actual cause of any infringement.

This, found Judge Birss QC, did not avoid liability for copyright infringement under s16(1)(d) and s.20 CDPA, in that:

"The fact that the defendant may have thought that it had permission to use the images is not a defence to infringement under s16. There is a form of innocence defence in copyright law provided for by s.97 of the 1988 Act … The s.97 defence would not mean that the defendant had not infringed, it would be a bar to damages.

Thus if the defendant did carry out one of the acts provided for in s16, the fact that they thought they had permission is not relevant. Although this may seem harsh, it is not. From the copyright owners point of view, the copyright is his property and his rights have been infringed if he did not give permission. Copyright law provides for other secondary acts of infringement which generally amount to dealing in infringing copies and those acts only infringe if the person knew or had reason to believe that the copies were infringing copies. However for the primary acts of infringement set out in s16, the policy of the law is that if there was in fact no permission, an infringement has occurred even if the person genuinely thought they had permission.

The key question on liability therefore is whether the defendant has committed any of the acts restricted by copyright as set out in section 16."

This being the case, Judge Birss QC found that the defendant had committed acts restricted by copyright, specifically the act of communicating the work to the public, which thereby infringed Mr Hoffman's copyright. He ordered for £10,000 in damages and £2,444.57 in interest be paid to Mr Hoffman. 

As the photographer told the British Journal of Photography, though he welcomes the result, he does not expect to receive these damages.  "My claim originally was for around three times as much [as £10,000]. This was based on the flagrancy of the abuse, the lies and threats made by the defendant and the continued infringement for a long time after I had demanded the removal of the images. However when the time came for me to make my submission to the court the defendant was already in the process of becoming insolvent and so there was no point in putting in the additional work to support a higher claim as there was no expectation that it would be paid." He added: "For years, the Department of Health has been stalling this case, pretending that they were ready to settle when they were not. They've stalled long enough for DARE to go out of business. So, now, DARE has gone insolvent." 

Monkey See, Monkey Do, Monkey get Copyright, too?

By now it’s all over the twittersphere, the blogosphere and every other made-up sphere on this green and blue sphere.  The monkey that stole a photographer’s camera and got her pictures published in the Daily Mail. 

Copyright experts and dilettantes alike are going ape trying to analyze who owns the copyright in these images.  Why?  Because the Daily Mail put a copyright notice on two of the pictures in its article.  Most of the analyses I’ve seen are Americans trying to sort it out under American law, which is typical, but not necessary the best approach here.  You see, the monkey is Indonesian.  The work was made in Indonesia.  The photographer who’s camera was taken and the  agency claiming copyright ownership of the photos are British.

The main questions being discussed: Does the monkey get the copyright?  If not, does anyone?

Monkey stole the camera from the camera man

Under Indonesian copyright law an author is “a person or some persons.”  Miss Monkey is ruled out right there I’m afraid.  But what about under British copyright law?  Since it’s a British company claiming copyright, any suit is likely to be brought in the UK.  Indonesia is a member of Berne and TRIPs, so the photos should be treated the same as UK works under UK copyright law.  Unfortunately for the monkey, The UK copyright law also defines author as “the person.”  Sorry monkey, it’s not you.

If not, then who?

It appears the monkey, by virtue of not being a “person,” cannot be the author of the photos.  (…unless there’s a statute somewhere that makes monkeys a person the way corporations are made a person.)  So who gets the copyright? 

The photographer / Carters News

If the photographer did own the copyright, it appears that he transferred his rights to Caters News Agency Ltd based on the copyright notices on the newspaper photos.

There is a clause in Article 7 of the Indonesian copyright law that specifies if a work is designed by one person and worked out by another, then the one who designed the work gets the copyright.  If the photographer had set up the shot and the monkey had just taken the photo, the photographer would likely have the copyright.  But the photographer didn’t design anything here.  He just left his camera.  The monkey did all the designing in the photos, so this article shouldn’t apply.

Indonesia

Perhaps more useful here is Article 9, “If a legal entity announces that a work has originated from it without mentioning a person as the author, then the legal entity shall be deemed to be the author, unless proven otherwise.”  The monkey took the photos in an Indonesian national park.  The Indonesian government presumably owns that park and is a legal entity.  It would seem that if the Indonesian government claimed it was the copyright owner, then it would be.  Except for that “unless proven otherwise bit.”  But this leads us to another question, does the park own the monkey? 

If not having an author as defined under the copyright law is the same as having an unknown author, then Indonesia owns the copyright under Article 10A of the Indonesian copyright law.

No one

The main claim I’ve seen in the US discussions of who should own the copyright is that no one should; the photos should be in the public domain.  And it appears, under UK copyright law, they’re right.  - Now, this is the part where, knowing that there are a great deal of very knowledgeable UK copyright practitioners who read this blog and that the author is not one of them, the author asks for forgiveness and clarification should she get anything wrong.  -

Under Section 153, the work only qualifies for copyright protection if it meets requirements in several different areas including the area of author.  Section 154 outlines the requirements the author must meet in order for the work to receive copyright protection. 

• Option one, a British citizen.  Pretty sure the Indonesian monkey is not a British citizen.
• Option two, an individual domiciled or resident in the UK.  Monkey lives in Indonesia.
• Option three, an individual domiciled or resident in another country to which the relevant provisions of this Part extend.  This seems to include any countries to which the UK must extend national treatment with respect to copyright.  Since Indonesia is a member of Berne and TRIPS, Indonesia would be one of these countries.  It might seem like we need to know if the monkey is an individual, or if it can be domiciled or resident.  But, that doesn’t matter because the first part of Section 154 says “if the author was at the material time a qualifying person.” (emphasis added)

So it appears under UK law, the photos are in the public domain.  Under Indonesian law, the matter is less clear.

Barrels of Fun

Perhaps more fun than the real story are all the different extra facts you can add to make even more puzzlingly-fun scenarios.  What if the monkey belongs to a zoo?  Or a person who taught him to take pictures?  What if the park or zoo where the monkey lives posts a sign that says the copyright of any photographs taken by animals inside the park or zoo belong to the park or zoo?  What if it is not a monkey but one of the gorillas that can speak sign language or otherwise communicate to subjects in a photo how to move?

Personally, I like the position one of my colleagues took: Forget the copyright issue.  The monkey should sue for rights of publicity.

Flickr Teaming with Getty – Good for Copyright Holders?

Yesterday, Flickr announced a new program available to its users – licensing through Getty Images.  Through the program, users can add a “Request to License” link next to their photos.  Viewers who click this link are put in contact with Getty Images.  Getty licenses the photo to the viewer on behalf of the Flickr user and transfers payment from the viewer to the Flickr user.

At first glance, this program may seem like a really good opportunity for photographers.  But Flickr users interested in the Getty program need to think carefully before jumping on board. 

Getty Images is a large, professional, photo clearing house that has been in business for a long, long time.  Although working with Flickr is a foray into the future, Getty is still an institution based on old business models.  This means a lot a lot of legal gymnastics for anyone wishing to participate, as a photographer or a licensee.

You can check out the FAQ section for more information on model license requirements, the 2-year exclusive contract required for the program and other program details.

Beneficial?

As one Getty program user and supporter comments,

“The effort is not minimal. Gathering model releases, unloading full size images, doing any post processing required, filling in photo details, having to book the shot date in about three different places, uploading model releases seperately [sic] for every photo even if you have the same release for 5 photos from one shoot.”

With all this work required to submit photos, plus the restrictions of a two-year long exclusive contract that prohibits anyone other than Getty Images from licensing your submitted photos and photos similar to your submitted photos – yes that includes even you – is there really any benefit to participating?

After all, there really isn’t a need for a third-party intermediary for licensing photos on Flickr.  Every photographer can easily be contacted via Flickr Mail.  Why should it be necessary to ask a third-party for permission when you can already ask the copyright holder directly?  Additionally, many photographers have already granted licenses to use their photos, without the need to contact anyone.

The most apparent benefit, currently, appears to be the vetting.  Photos admitted to the Getty program are thoroughly reviewed by Getty Images and approved for admission to the program.  Knowing that the vetting is already done might make some photo users feel better about the search process for the right image.  However, Flickr has a strong community that can also serve as a vetting process based on how many views, uses and comments a photo receives.

In the end, the program seems to be more of a way for Getty to increase the number of photographers in its pool than to really help copyright owners with licensing.  But perhaps this judgment is coming too early.