Friday 9 August 2013

The CopyKat - transformed, trans-Pacific, topped up but not transferred

The National Music Publishers Association (NMPA) has filed a copyright infringement suit in the US against Fullscreen Inc., a Multi-Channel Network (MCN) operating on YouTube and largely comprised of independent artists playing cover songs - allegedly without proper licensing or paying royalties although Fullscreen also services over 10,000 YouTube channels, including those owned by NBCUniversal, Nintendo, and Lexus. According to a statement from the NMPA they are alleging that Fullscreen "directly profits from advertising revenue generated by unlicensed music videos on their channels, but does not compensate songwriters or publishers." YouTube's own 'blanket' licences seemingly do not extend to  the growing number of Multi-Channel Networks.

Transformative art and fair use are quite the hot dinner party topic now if recent US court decisions are anything to go by. Hot on the heels of a case looking at the transformation of photographs of Rastafarians. comes a new decision that will cheer all American Idiots.

Seltzer's Scream Icon
Green Day's video
The US 9th Circuit court of appeals has ruled that US punk band Green Day did not infringe copyright when they used an artist's drawing of a screaming face in a video backdrop. Referencing Cariou v Prince, the other recent case on transformative art  (for more, see Jeremy's blog here), the court ruled that the band had transformed the work of Los Angeles-based artist and illustrator Derek Seltzer and were protected by the doctrine of fair use. Seltzer launched his action in 2010, saying the band had used his drawing "Scream Icon” without permission: a poster of the image had been photographed  by Green Day’s set designer Richard Staub on a wall on Sunset Boulevard in 2008 and later incorporated image into a four-minute video backdrop for Green Day's song "East Jesus Nowhere", a song about religious hypocrisy but the court said the fact the image was altered by a red spray-painted cross meant the image had been sufficiently transformed to become fair use.  At trial, Judge Philip Gutierrez granted summary judgment for the band and also legal fees of $200,000 seemingly unimpressed with Seltzer's claim: whilst the ruling was upheld, the award of legal fees was overturned as the appellate court, with Judge Diarmuid O'Scannlain for the court saying he found the decision "close and difficult".

I wondered if I blogged from now on in unusual shapes (my attempt at shapes above) the CopyKat could also fall under 'fair use' even when disgracefully copying other's efforts. Well, a slightly daft idea - but why not voice your opinion in our poll on the sidebar where the 1709 and the IPKat blogs are asking "Do you think that the US fair use defence really makes a difference in terms of user freedoms?".

Michael Geist blogs that the "U.S. Copyright Lobby Takes Aim at Canadian Copyright Term Through Trans-Pacific Partnership" saying that the U.S. copyright lobby, led by the International Intellectual Property Alliance, "appeared last week before a U.S. Congressional Committee hearing on the Trans-Pacific Partnership and made it clear that it wants the U.S. to use the trade agreement to force Canada to extend the term of copyright.  Canadian copyright law is currently at life of the author plus 50 years, which meets the international standard found in the Berne Convention. The U.S. extended its copyright term years ago to life of the author plus 70 years under pressure from the Disney Corporation (Mickey Mouse was headed to the public domain) and has since pushed other countries to do the same". More from Professor Geist on this here.

Despite a $10 million copyright and trademark suit, a new movie about the early life of the Deep Throat actress Linda Lovelace will hit movie theatres. Arrow Productions claims that The Weinstien Company distributed Lovelace uses 5 minutes of uncleared footage from from their Deep Throat film and benefits from the use of the name 'Linda Lovelace' which it has trademarked.  US District Judge Thomas Griesa rejected Arrow's request for a temporary injunction to stop the August 9th release, but the defendants, The Weinstein Company, Radius, Millennium Films, Nu Image, Inc., Animus Films, Untitled Entertainment, Inc., Eclectic Pictures, Inc., Avi Lerner and Laura Rister, still face a $10 million damages claim from the copyright owners. Amanda Seyfried stars in the new biopic and on the news that the injunction was nor granted the film's producers said that they "couldn’t be more pleased the world will finally get a chance to see Linda’s real story unfold on screen in Lovelace. Never again will she be silenced by the producers and distributors of Deep Throat”.

Russia's new anti-piracy legislation, launched to combat 'high value' online piracy of movies and TV shows, is being amended to include music, photos and other images as well as text-based material. The Ministry of Culture says it will now begin changing the legislation.
and as well as including a wider range of creative content, the amendments will mean that site owners will be required by law to display their 'real-world' addresses alongside their email addresses on their websites in order to speed up correspondence and a streamlined system for complaints - or face being blocked.

Don't forget to vote!
The British Copyright Council has appointed a new Independent Code Reviewer. Walter Merricks CBE, formerly the Chief Financial Ombudsman, was appointed by a selection panel chosen to represent the interests of both rights holders and copyright users. Mr Merricks will conduct a review of the BCC's 'Principles of Collective Management Organisations' Codes of Conduct' following the first full year of implementation, to ensure that it remains fit for purpose. The BCC developed its Principles policy document to establish a framework of good practice for Collective Management Organisations (CMOs) and a set of minimum terms to be used as the basis for CMOs individual Codes of Conduct. Fourteen CMOs have now adopted these guidelines. The review will also reference the Government's October 2012 benchmark recommendations 'Minimum Standards for UK Collecting Societies'. Founded in 1965 and incorporated in 2007, the British Copyright Council is a not-for-profit organisation that provides a forum for discussion of copyright law and related issues at UK, European and International levels. 

RT reports that the Swedish Pirate Party has celebrated the 10th anniversary of the Pirate Bay torrent website by reporting the country’s publicly anti-piracy IT minister, Anna-Karin Hatt, to the Swedish Police for infringing copyright on several occasions. The party has been following Hatt’s account on Instagram, where it alleges that the politician is anything but innocent when it comes to respecting the legislation which she claims to so strongly support: It seems Karin-Hatt posted copyrighted Calvin and Hobbes cartoons as well as artwork for several movies, including The Lord of the Rings, The Da Vinci Code, and Monty Python and the Holy Grail - well that's according to a blog by the Pirate Party’s legislative spokesman, Torbjörn Wester.

The Hulk, Thor, Captain America and Iron Man
And finally, the 2nd U.S. Circuit Court of Appeals has upheld the decision by District Judge Colleen McMahon who in July 2011 ruled for Marvel in a dispute with the heirs of comic book artist Jack Kirby, finding artwork and characters he had drawn constituted works for hire under the Copyright Act of 1909.and that the family have no rights to characters such as the Hulk and Fantastic Four. These are owned by Marvel Entertainment, a Walt Disney Co subsidiary. Walt Disney bought Marvel for $4 billion in 2009. "Iron Man 3," the latest Marvel movie based on a character Kirby helped create, has grossed $1.2 billion worldwide. Kirby's other creations include Thor and Captain America (Marvel Characters, Inc. v. Kirby, 2nd U.S. Circuit Court of Appeals, No. 11-3333).

1 comment:

Anonymous said...

I don't think that the court takes into account the artistic value of the work accused as infringement which i think is the most important. Also those cases become known only when the new work is a success( Prince or Green Day) an is seen by a wide audience. Is it a matter of commercialization or profits? Or because used the initial work in a different way that made it more successful?