Friday 13 September 2013

The CopyKat: Games without frontiers, settlements without tears

We've already noted that numerous heritage recording artistes are are filing to reclaim the copyright to their recorded works in the USA, as the "magical" 35-year mark triggered by Section 203 of the US Copyright Act is finally arrived at in 2013 (for works created in 1978). And no doubt each passing year will bring with it another batch of recordings that artists can reclaim from their current and former labels - and the labels will resist - primarily claiming the copyrights are works made for hire and thus excluded! Now Dan Rogers at Gamasutra has pointed out that the next few years might see the same sort of defensive activity from video game companies as the termination date rolls up on some old classics - in the next five years titles including Asteroids, Galaxian, Frogger, Donkey Kong, Missile Command and Mario Brothers will all be over 35!

And on that very topic, Former Village People member Victor Willis (the 'policeman', right) who wrote the lyrics for many of the band's biggest hits, says that he is close to regaining control of his share of the copyright in the 33 songs he had reclaimed in 2011 under US law - having defeated arguments that the songs were written on a 'work for hire' basis.Willis told the Times: "I'm hoping that other artists will get a good lawyer and get back the works that a lot of us gave away when we were younger, before we knew what was going on. When you're young, you just want to get out there and aren't really paying attention to what's on paper. I never even read one contract they put in front of me, and that's a big mistake".  An appeal is expected, as is further litigation over the share of the copyrights Mr Wills is entitled to.

Harper Lee and  literary agent Samuel Pinkus have reached an “agreement in principle” to settle the copyright lawsuit the famed author of “To Kill a Mockingbird” brought against Pinkus in May. "The parties reached a mutually satisfactory resolution and everybody would like at this point to put it behind them,” said attorney Vincent Carissimi of the firm Pepper Hamilton, who acted for the defendants. Dismissal papers were seemingly filed in Manhattan federal court by Lee’s lawyer removing both journalist Gerald Posner and Lee Ann Winick, Pinkus’ wife and another defendant, of any liability in the matter except for their own legal costs. The claim by Harper Lee against Pinkus and the other defendants was that after Harper Lee's literary agent Eugene Winick of Mackintosh & Otis fell ill in 2002, his son-in-law (Pinkus) diverted several clients to a new company, formed with Posner, “and then engaged in a scheme to dupe Harper Lee, then 80 years old and with declining hearing and eyesight” into signing over her copyright for “no consideration.”

Marvel Comics has agreed to settle a lawsuit with Gary Friedrich who sued the publisher over the copyright to the flaming-skulled character Ghost Rider. The agreement, disclosed in a letter filed Friday in U.S. District Court in Manhattan, if finalized would resolve five-years of litigation brought by former Marvel freelancer Friedrich, who claimed he created the motorcycle-riding vigilante and that the rights to Ghost Rider automatically became his after the initial copyright term expired in 2000. 
The settlement follows the June decision by the 2nd U.S. Circuit Court of Appeals in New York to revive the lawsuit. A trial judge had previously dismissed the lawsuit, finding the rights to the character belonged to Marvel, owned by Walt Disney Co.

Fashion designer Jeremy Scott  has settled a case with NHS Inc., owner of the iconic Santa Cruz Skateboards graphics: Scott was accused by skaters of poaching artwork from the brand's famed father-and-son illustrators, Jim and Jimbo Phillips with Scott saying "I regret that certain pieces of my February 2013 Fall Winter fashion line incorporated imagery that was similar to images owned by NHS and Messrs. Phillips" adding  "I now recognize my mistake and out of respect to their work and their rights, the clothing and handbags at issue will not be produced or distributed."

Over on the IPKat Birgit reports that The Higher Regional Court of Karlsruhe (case reference: 6 U 72/12 of 3 June 2013) has recently confirmed that domestic premises, such as an apartment building, can attract the copyright protection under German law, saying that domestic premises can attract copyright protection, provided the building in question 'stands out' when compared to the majority of buildings. More here

And also on the IPKat you can catch up on where the French are with the demise of the HADOPI authority (Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet), created in 2009 to fight against on-line piracy - and the transfer of its remaining powers to the Conseil Supérieur de l’Audiovisuel (CSA) - the French TV regulator. With internet piracy on the rise in France, TV, film and music company's remain concerned that a toothless regulator will do nothing so solve their problems - but the present French government remain equally convinced that suspension, throttling or termination of internet connections is disproportionate to the problem.

In the United Kingdom, a new report from Kantar Media for media regulator Ofcom shows that just under one fifth of internet users have accessed content online illegally, with 18% of television programmes viewed online being in breach of copyright laws. More than half of all internet users – 58% – downloaded or streamed at least one item of content over the year from May 2012 to May 2013. The report found that infringement was a “minor activity” during this period, with 17% of internet users consuming at least one item of “infringing content”. The report said this equated to around a third of all consumers of online content. In terms of volume, 22% of all content consumed online during the year was infringing. Of the TV shows watched online, 18% were done so illegal. 15% of filesharers would stop if they thought they would get sued - only 5% would stop if they were threatened with slower internet speeds when caught.  74% of copyright infringements were carried out by just 2% of internet users. However, the research also showed that those who pirate content were also likely to spend more money on legal downloads. Over a three month period pirates spent £26 on content compared to £16 from those who refrained from infringing copyright. Ofcom said that no single enforcement solution is likely to address online copyright infringement in isolation. Executive Summary here.

And finally - A federal judge in the USA has refused to dismiss a number of copyright claims against the Beastie Boys, relating to music they sampled in their first two hit albums in the 1980s.   In 2012 TufAmerica alleged that songs in "Licensed to Ill" and the 1989 follow-up album "Paul's Boutique" illegally sampled the music of R&B group Trouble Funk, whose rights TufAmerica owned. The defendants in the case, the band, Universal Music Publishing, Brooklyn Dust Music and Capitol Records moved to dismiss on the ground that TufAmerica had failed to make an actionable case but U.S. District Judge Alison Nathan has now said that judging the issue of copyright infringement first required a determination of how to compare the song samples saying  "The real question at this stage - more so than the question of how to label the relevant test - is whether (as to each sample) plaintiff has plausibly alleged that the sample is quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement" holding that at least some of the claims could survive as the court could not conclude that the samples used in Beastie Boys tracks were "substantively insignificant" - or some of the samples were significant enough to survive the dismiss motion. Nicki Minaj is also facing claims that she used components of an underground record titled "Neu Chicago" on her 2012 chart topper  "Starships." Chicago artist Clive Tanaka has brought the claim.

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