THE COPYKAT

After our very last post, more on dance steps! Former "Fresh Prince of Bel-Air" star Alfonso Ribeiro has been involved in a lawsuit with 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 now that action has taken 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".  

The EU Commission has removed a rather odd blog post that attacked internet campaigners, admitting its language was not appropriate and that it could be interpreted as offensive. The post was positioned as a response to the various battles around the EU's planned copyright directive, which introduces a series of reforms, and pointed to the aggressive and polarising lobbying from the tech sector. The post was titled ‘The Copyright Directive: How the mob was told to save the dragon and slay the knight’ and the controversial text included the opinion (that seems related to Brexit) that “We know from recent elections and referendums that simple memorable slogans – however untrue or unobtainable – can go a long way to winning over hearts, minds and voters. Never let the truth get in the way of a catchy slogan”. The post went further in its criticism of the tech sectors efforts to  mislead the public by employing dubious campaigning tactics saying  “It appears as if the largest search and video platforms in the world are afraid of regulation – despite having overwhelming dominance on the internet. Furthermore, there is ample evidence that ‘big technology’ has even ‘created’ grassroots campaigns against the copyright directive in order to make it look and sound as if the EU is acting against the ‘will of the people'”. A statement in place of the post now reads: “This article published by the Commission services was intended to reply to concerns, but also to misinterpretations that often surround the copyright directive proposal. We acknowledge that its language and title were not appropriate and we apologise for the fact that it has been seen as offending”. In related news, representatives of European Union governments have endorsed the compromise reached with the EU Parliament on the overhaul of the bloc's copyright rules, the Romanian presidency of the EU said in a statement on Twitter.

And with that  final draft of the European Copyright Directive now being considered, a number of organisations representing independent record labels and music publishers, songwriters and their collecting societies published a letter calling on the EU Council and European Parliament to vote through the copyright reforms. Independent label's group IMPALA and the Independent Music Publishers International Forum led the call for support for the Directive to now be adopted along with support from the European Composer And Songwriter Alliance, and collecting society groups CISAC and GESAC, with the letter saying "We, the undersigned organisations, representing authors, composers, writers, journalists, photographers and others working in all artistic fields, news agencies, book, press and music publishers, audiovisual and independent music producers, call on the Council Of The European Union and the European Parliament to adopt the Directive On Copyright In The Digital Single Market".

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.  A YouTube spokesperson told Gizmodo that the strike policies for Community Guidelines and copyright are entirely separate, and that YouTube employees don’t get directly involved copyright disputes. The spokesperson said that if YouTube receives a DMCA takedown notice, they must legally comply with that request and remove the content. Community Guidelines violations—like harmful, hateful, violent content, and spam—are reviewed and decided upon by members of the YouTube team, according to the spokesperson.

The Copyright Royalty Board in the US has published the new mechanical royalty rates that will apply for the use of music in America. The new rates were first published a year ago and include a top line 44% increase in the revenue share rate being paid by the streaming services, which will rise from 10.5% to 15.1%. After a further period of consultation with submissions from both music owners and music users a ‘final determination’ has now followed - although participating parties still have one more chance to appeal. Benjamin Semel who represents the National Music Publishers Association commented: “The final determination that became effective today is even stronger than the initial determination, as the judges clarified an important definition during the rehearing motion phase, providing additional protection against streaming services using product bundling to exclude revenues from the royalty pool”. NMPA President & CEO David Israelite said that digital music companies would ‘declare war on songwriters’ should they appeal the 44% streaming royalty rise decided by the Copyright Royalty Board adding  “Apple has announced it will not appeal. The others won’t say. We will know soon whether some digital companies want to be partners or want to attack the songwriters who make their businesses possible. Stay Tuned.”

US Radio lobbyists and a bipartisan coalition of lawmakers in Washington DC are backing the Local Radio Freedom Act, which would limit the royalties radio stations have to pay for the use of recordings. Similar bills failed in 2017 and 2015 and of course the rapidly passed Music Modernization Act did much to update the law on music use in the USA. Now 124 congress members and five senators have signed on as initial co-sponsors. The bills argue that radio stations "provide free publicity and promotion to the recording industry and performers," so they should not be obliged to pay "any new performance fee, tax, royalty, or other charge." If such fees were imposed, the bill's proponents argue, it would cause "severe economic hardship." Or perhaps just reduce profits for broadcasters.

And finally, in Trinidad & Tobago, Police have arrested seven people in Port of Spain for copyright infringement..The seven vendors were targeted during an exercise which saw officers of the Port of Spain Division, the Municipal Police, and officials from Awesome Copyright interview CD vendors in Independence Square and Charlotte Street. Various CDs and sound equipment were seized with the arrests made pursuant tof Section 41 of the Trinidad and Tobago Copyright Act. The offence carries a jail term of up to ten years and/or a fine of up to $250,000.

The CopyKat - A spliffing new case for Mr Prince!

Photographer Donald Graham has sent cease-and-desist letters to the 'appropriation' artist Richard Prince and the Gagosian Gallery, requesting that they stop displaying or disseminating any artworks or other materials that include Mr. Graham’s images. 1709 readers will remember Mr Prince from the 2013 U.S. case of Cariou v Prince where Mr Prince largely succeeded with his fair use defence after 'transforming' Mr Cariou's photographs of Rastafarians in Jamaica. The new complaint, which was first reported by the website Hyperallergic, stems from a work shown last Autumn at Gagosian in the exhibit “New Portraits” (see image) which featured ink jet prints of images that Mr. Prince had taken from Instagram. The work shows Mr. Graham’s photograph “Rastafarian Smoking a Joint, Jamaica” as it appeared on the Instagram feed of a third party, with the comment “Canal Zinian da lam jam” added by Mr. Prince as a caption. Yes, he added a caption to an Instagram grab. In Prince's earlier case, the US Court of Appeals for the 2nd Circuit broadly supported Mr Prince's transformations, saying "Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five, which we discuss separately below. These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative." Could the same apply on these facts? The CopyKat thinks not - but it's all good publicity! More on Artsbeat here. 

PPL, the UK collection society which licenses use of recorded music on behalf of performers and record companies, brought 230 High Court cases against operators of leisure establishments for alleged copyright infringements in 2014, an increase of 10% on last year, according to analysis by the City law firm RPC. As this Blog has previously noted, The Football Association Premier League also increased the number of High Court cases it launched in 2014. It brought 36 cases, compared with five in 2013, as FAPL and Sky focussed pubs allegedly infringing copyright by broadcasting matches without an appropriate licence. More here.

BRICS (Brazil, Russia, India, China) countries accounted for only 5% of global copyright license revenue for authors and composers in 2013, according to a report from the International Confederation of Societies of Authors & Composers (CISAC). The CISAC Global Collections Report also quotes industry data estimating the Chinese advertising market as one of the fastest growing in the world. Advertising revenue is a key reference indicator in determining collective licensing tariffs. Much of the growth in advertising revenue comes from online advertising, with the China Internet Network Information Center (CNNIC) separately reporting that China now has 649 million Internet subscribers.

Swedish songwriters have joined their UK counterparts in criticising the way in which the digital streaming pie is currently shared out, pointing out the unfair and unsustainable way in which royalties stemming from streaming services are being shared between different stakeholders - in particular the large share taken by record labels on their own behalf, and on behalf of recording artistes. Earlier this month Marty Bandier, head of Sony/ATV Music Publishing, used the Grammy's to argue that songwriters and publishers have been given an unpalatably small portion of the digital music pie, and the British Academy Of Songwriters, Composers And Authors (BASCA) launched a campaign called The Day The Music Died which stated that as the recorded music industry has shifted from CDs to downloads to streams, "songwriters and composers are now finding their livelihoods under dire threat". This view is now echoed by 133 Swedish writers who say the returns from the likes of Spotify and Deezer mean ""very few songwriters will be able to afford to create music other than as a hobby". CMU Daily estimated that in a typical business model, 30% of the income from subscription and advertising revenues are taken by the streaming service to cover non royalty costs, overheads and its own profit, record labels take 55-60% of gross revenues, leaving at the most 10-15% for songwriters and publishers - if that - with one report backed by CISAC saying the songwriting share can be as little as 3% and recommending upping the revenues shared by rights holders to 80% and rebalancing the shares taken for recorded music and the songs to an equal footing. More on the Guardian Blog by songwriter Helienne Lindvall and on potential US reforms here.

So what to do? Well here's a solution (maybe .......): Qtrax, which at one time looked like being a leader in the digital music market only to see its much lauded bubble, launched at the MIDEM conference in 2008, well and truly burst as the major labels refused to deal, is back!  Qtrax is an advert-supported music player that "for the first time allows the users to download, stream and create a personalised radio channel all from one place" - and, crucially, all for free - that is relaunching at the end of the quarter with the twin aims of cracking down on music piracy and - yes, here's the twist - ensuring artists get paid for their work.  The all new Qtrax will launch the Artist Manifesto and 30% of equity in the company will be set aside for an 'Artists Trust', while  an additional 10% of royalties will be paid directly to artists and songwriters whose content is available on the service with Qtrax boss Allan Klepfisz telling The Telegraph: "There is something very wrong with the current model. The current economic structure is not likely to ever compensate the artist... But it's not that difficult for a paradigm shift to occur. Traditionally the record companies get equity in digital services, but no one has asked on behalf of the artists. This could become a de facto way of doing business".

The CopyKat - from Russia and Paris - with love

A songwriter called Guy Hobbs has failed in his plagiarism claim against Elton John and his co writer Bernie Taupin, after the 7th U.S. Circuit Court of Appeals affirmed a judge's decision to dismiss his claim that Elton John had borrowed the lyrics for his 1985 hit "Nikita". Hobbs had claimed Sir Elton's song was copied from his song "Natasha" which Hobbs said he had submitted to Sir Elton's publishing company prior to Sir Elton writing his hit. Hobbs claimed his song was based on his short romance with a Russian woman he met while working as a cruise ship photographer. The court helpfully fleshed out Hobb's claim (who said the long delay in bringing the action was because he had never seen Taupin's lyrics until 2001) and compared both songs noting that the alleged similarities extended to (1) A theme of impossible love between a Western man and a Communist woman during the Cold War; (2) References to events that never happened; (3) Descriptions of the beloved’s light eyes; (4) References to written correspondence to the beloved; (5) Repetition of the beloved’s name, the word “never,” the phrase “to hold you,” the phrase “I need  you,”    and some form of the phrase “you will never know;” and a (6) A title which is a one-word, phonetically-similar title consisting of a three-syllable female Russian name. The court then pointed out that unrequited love is a  common theme for songs, and the two songs tell different stories with “Natasha” telling the story of an actual, though brief, romantic encounter between a man from the United Kingdom and a woman from Ukraine which is severed because the woman must sail away whereas in in contrast, “Nikita” tells the tale of man who sees and loves a woman from afar. But that love can never find physical expression because the two are separated by “guns and gates" with Judge Daniel Manion saying for a three-judge appellate court "Even when the allegedly similar elements between the songs are considered in combination, the songs are not substantially similar." 

It seems that a battle between Rolan Feld, the son of deceased T. Rex frontman Marc Bolan, and music publisher Westminster Music Limited is heading for the US courts with Feld seeking to regain control and ownership of his father's songs - as well as $2 million in damages, using the provision in U.S. copyright law that gives the creators of works published before 1978 the opportunity to regain control after 28 years. Feld's filing also alleges that the publisher falsely attempted to renew copyright in the music "in an attempt to cover up their conduct and mislead the public as to the true owner of United States copyrights" in each of the compositions.

A federal judge in Mississippi has dismissed a lawsuit claiming that Woody Allen’s 2011 film “Midnight in Paris” improperly used one of William Faulkner’s most famous lines from Faulkner’s book, “Requiem for a Nun.” Faulkner Literary Rights LLC, who sued Sony Pictures Classics Inc. in October in U.S. District Court in Oxford alleged that the line in question - “The past is never dead. It’s not even past,” becomes a line spoken by Owen Wilson in the movie who says “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner. And he was right. I met him too. I ran into him at a dinner party.”  U.S. District Judge Michael P. Mills dismissed the lawsuit saying “At issue in this case is whether a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film can be considered a copyright infringement. In this case, it cannot”.

The US Fourth Circuit held for the first time that copyright interests can legally be transferred electronically, affirming an injunction against American Home Realty Network Inc. in a copyright dispute with a rival real estate listings website.

The Spotify royalty row rumbles on: After Thom Yorke's comments (see our previous blog) abiout why he would not want his album on streaming service Spotify, Will Page, the former PRS for Music economist and now Spotify’s Director of Economics,  published a new research paper 'Adventures In The Netherlands' looking at the streaming service's three year operation in the Dutch market, the accompanying fall in piracy and growth in recorded music income in the region in that period, and whether there are links between these facts - and with certain riders Will found that  there is no indication that artists who had concurrent download and streaming releases suffered in terms of record sales because of their presence on streaming services. Next, the Music Managers Forum, which is chaired by Radiohead manager Brian Message, issued a statement in support of the streaming service saying "The Music Managers Forum embraces streaming as a technological development that adds to the ways that consumers can pay to access music. Any music creation is now potentially ubiquitous, for free, as soon as it is made available digitally. Streaming is in its infancy but growing fast and providing meaningful rewards for many. Income from radio, compact discs, downloads and even resurgent cassettes grows as the fruits of artists labour are discovered and become more popular. That popularity is a measure of the success of the artist fan relationship which is at the core of the modern music ecosystem" adding "A new music business is being built that encompasses publishers, labels, technology, financiers, producers etc, but that has the artist and fan firmly at the centre. Everyone, including artists and fans, in the new business needs to adapt to the new world" and finally, the statement concludes: "Streaming is not a download. Nor is it radio. It is streaming. It's different and a part of the future". This in turn was followed by a statement from the Musicians Union, the 30,000 strong association, demanding that the music streaming service draw up a new minimum pay deal for artists. The MU said it was pushing for a collective pay agreement modelled on the royalties paid by BBC and commercial radio stations. Comment from Robert Levine here.

When appeal loses its appeal: CSC turn tables on VPL

CSC Media Group Ltd (formerly Chart Show Channels Ltd) v Video Performance Ltd [2011] EWCA Civ 650, 27 May 2011, is a decision of the Court of Appeal for England and Wales which is not yet available on BAILII (this note being taken from a helpful alert on LexisNexis) but which raises important implications for anyone thinking of appealing against a decision of the UK's Copyright Tribunal.

In August 2010 Mr Justice Floyd heard an appeal against the first decision of the Tribunal on the going rate for broadcasting music videos. The appellant, Video Performance Ltd (VPL), was not very happy when the Tribunal said that the correct royalty rate payable by TV channel operator CSC should be somewhere in the region of 10% to 15% since an earlier licence between VPL and BSkyB set a more comfortably remunerative rate of 20%.  Floyd J allowed VPL's appeal and held that, when the Tribunal assesses the amount the licensee must pay under the Copyright, Designs and Patents Act 1988 s.129, it must give proper weight to the terms of other comparable licences. In this case the Tribunal had taken account of the BSkyB licence only after it had reached its position that 10-15% was correct. Even if the Tribunal had reservations about the BSkyB licence, it couldn't just be shunted into the background since it was the single most significant piece of evidence as to what the proper royalty rate should be. The correct approach involved starting with the most relevant comparable licence, then adapting it to the circumstances of the present case. Since the Tribunal had not only taken the wrong view concerning the earlier licence but had also erred in not applying the pro-rating formula which the parties had themselves agreed while having no proper or rational basis for departing from that formula, the case would be remitted to a differently-constituted Tribunal for reconsideration.

This time it was CSC's turn to appeal, submitting that Floyd J had (i) failed to attribute to the Tribunal awareness, in fixing the reduced window, of its subsequent discussion of comparables and (ii) failed to appreciate that the Tribunal's treatment of the relevance and weight of those comparables was coloured by its earlier discussion of the law and of the music video market.

The Court of Appeal allowed CSC's appeal.  In its view the judge's criticisms of the Tribunal's arrival at the reduced window royalty rate took an unrealistic and unjustified view of its reasoning and adopted too prescriptive a view of the way such cases fell to be decided.  This was because, before arriving at those figures, the Tribunal had surveyed the music video market and effectively rejected VPL's case that it had secured a freely negotiated voluntary acceptance of an alleged standard licensing approach of a headline 20 per cent royalty. Additionally, the Tribunal had made findings of fact which were directly relevant to its assessment of any comparables.  This being so, it was unrealistic to subject the Tribunal's reasoning to a rigorous analysis which was based on the assumption that, when fixing the lower window, it had missed issues which it actually mentioned explicitly later on in its decision.

This would have been enough to bury Floyd J's decision by itself. However, having got up a reasonable momentum, the Court of Appeal was not going to be easy to stop.  It would be odd, it added, to hold that a specialist Tribunal --  in a lengthy, conscientious and detailed judgment -- had ignored its own clear and proper statement of the correct legal approach. What's more, the Tribunal's findings of fact were capable of supporting a perfectly proper conclusion about the reduced window since the law did not compel the Tribunal  to deploy any specific analytical structure and methodology. So long as it discharged its statutory duty under section 126, the precise way it carried out its analysis and the order in which it addressed the material issues in its decision could not undermine the validity of its conclusions.

It wasn't just the judge who came in for a bashing: VPL's criticisms of the Tribunal's approach to the reduced window royalty rate weren't worth a shout since they did not disclose any error of law which undermined the validity of its decision.