Friday 29 August 2014

The CopyKat: mirror mirror on the wall - who has the biggest banana of them all?

A federal judge has dismissed lawsuit filed by Arrow Productions, the owner of the copyright in the 1972 iconic porn movie “Deep Throat”. The case was brought against The Weinstein Co, the company that produced the biographical 2013 movie “Lovelace” which looked  look at the life of Linda Lovelace, star of “Deep Throat”. According to Arrow the 2013 film recreated three scenes “word for word, positioned the actors identically or nearly identically, recreated camera angles and lighting and reproduced costumes and settings” from the original film.  U.S. District Judge Thomas Griesa said that the movie was “entitled to a presumption of fair use,” concluding that its use of the three scenes from “Deep Throat” added a “new, critical perspective on the life of Linda Lovelace and the production of ‘Deep Throat.". The judge also dismissed trade mark claims.

TiVo has announced that it is releasing a new product - the “Roamio Over-the-Air [OTA] DVR”) that will allow customers who don’t have cable/satellite service to record, store, and playback over-the-air television programming (provided they have an HD digital antenna pulling in the signals). Now what does that remind the CopyKat of - ohhhhhh yes - the Aereo service that the Supreme Court declared to be infringing  in June. However the key difference is that this is a customer's box - allowing customers to record programmes where they already had free access, and to play those recordings back to themselves - rather like a video recorder - and that of course reminds us of of that classic 1984 (split 5-4) Supreme Court decision in Sony v. Universal which found that  manufacturers of home video player/recorder devices such as Betamax or other VCRs could not  be liable for infringement - overturning the The United States Court of Appeals for the Ninth Circuit which had found the manufacturers of betamax manchines liable for contributory infringement. But will the content and broadcast sectors see it that way?

The head of the Serbian actors’ association, Nikola Djuricko, has said that actors will demand amendments to the copyright law that would extend legal protection on artists whose performance is visual and not just an audio recording (Article 117 of the Serbian Law on Copyright and Related Rights states that performers are entitled to remuneration for the performances published “on a sound carrier”). 

Maslen & Mehra's work
Australian artists Tim Maslen and Jennifer Mehra have issued a legal challenge to the BBC. alleging that a BBC TV promotion for a World War One program infringes their copyright in their 'mirror soldier' artwork. Mehra and Maslen cut silhouette figures from mirrors and then place these mirror people in a landscape and film them with a moving camera. The result is "a interplay between the background and the landscape which is reflected in the mirrors. As the camera shifts, the mirror figures seem to blend with, and then emerge from, the background". ABC explains that the BBC promotion uses the same device but the BBC write to the artists saying ‘the team who worked on this project were not previously aware of your work. With regards to the image itself, the idea was conceived by the creative team at Karmarama, an advertising agency, and brought to life through a commissioned artist and a bespoke shoot. Everything has been created from scratch for this campaign.’  If this gets to court it will be interesting to see what might transpire ......... and it's worth noting that Judge (now Mr Justice) Birss did find infringement in the so-called Red Bus Case (Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1) where a picture of a red bus travelling over a monochrome Westminster Bridge and Houses of Parliement against a white sky had been 're-created' (but not copied) by New English Teas for packaging. Image from MyModernMet.

The International Business Times tells us about Getty Images, whose 'settlement demand letters' - sent to those who the image licensing copany have discovered have used their 80 million images without permission - are often accused of being close to mimicking the behaviour of copyright trolls. Well, Getty has had a nasty shock. Getty's Picscout software picked up an unlicensed image it thought was on the website of of  the Schneider Rothman IP Law Group, a Florida law firm (who specialise in copyright litigation). Getty wanted a $380 licensing fee for a photo of a woman texting and driving, which Getty claimed, was being used on the firm’s website without permission. The law firm pointed out that it never displayed the Getty-owned image on its website. Rather, the image was syndicated through a plugin operated by Zemanta Inc., a software company that provides third-party content.  Getty have now admitted its error and that it had closed its claim against the law firm - but not before the law firm issued its own legal proceedings alleging  “unfair and deceptive business practices.” The law firm is seeking a court declaration that no infringement was committed and an injunction against Getty to stop it from demanding payment where no infringement exists.  

The Hollywood Reporter tells us that Sirius XM could be on the verge of fending off the first major challenge in an ongoing lawsuit brought by major record labels over its royalty-free broadcasting of pre-1972 music (which of course includes a wide repertoire including classic rock n roll and tracks from the likes to Bob Dylan, The Beatles and the Rolling Stones). Los Angeles Superior Court Judge Mary Strobel has indicated that she was leaning towards rejecting a motion by Warner, Universal, Sony, Capitol and ABKCO Records to accept the labels' interpretation of the law in jury instructions. The plaintiffs believe that state laws protect the misappropriation of older sound recordings that were authored before falling under federal copyright protection. But the judge isn't ready to go so far and has indicated that she feels the label's may be relying on inappropriate case law. This lawsuit is just one of a number of actions against the broadcaster - which include the class action led by Flo & Eddie of the Turtles in which the band behind "Happy Together" contends that state law protects pre-'72 music and the broadcaster can't rely on statutory royalty rates for the recordings - and the claim from collection society SoundExchange claiming Sirius XM underpaid federal royalties for pre-'72 tunes. And Sirius have had a second dose of good news on that front: U.S. District Judge Richard J. Leon in the District of Columbia has approved the Sirius' motion to stay the lawsuit from SoundExchange to await the decision of a hearing with the federal Copyright Royalty Board - the body that sets the statutory rates that Sirius XM must pay - and if these can include revenues purportedly attributable to performances of pre-1972 sound recordings."

Banana Lady
We had previously reported how Cindy Lee Garcia had persuaded a split panel of the U.S. 9th Circuit Court of Appeals that she had rights to her performance in the 13-minute trailer for "Innocence of Muslims".  Chief Judge Alex Kozinski held that Garcia held a copyright in her performance despite appearing in only five seconds of the trailer, writing none of her own lines and even having part of her dialogue overdubbed by someone else. The dissenting judge in the case, N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "An actor's performance, when fixed, is copyrightable if it evinces some minimal degree of creativity ... no matter how crude, humble or obvious it might be".  The Garcia case is clearly unusual, as Judge Kozinski acknowledged. Actors don’t own copyrights in their performances in Hollywood films — not least as film contracts clearly specify each person’s rights. In Garcia’s case, there was no contract, and thus the unusual (“rarely litigated”) issue arose of whether she had a copyright in her performance. Having over turned the trial judge and with a dissenting justice in the appellate court, the Garcia decision is currently awaiting possible rehearing by the Ninth Circuit en banc, and is somewhat controversial. But now we have a second and seemingly conflicting decision in the Banana Lady suit - an action brought by Catherine Conrad, a/k/a the “Banana Lady,” who puts on private performances while wearing a costume in the shape of a giant banana. The case of Conrad v. AM Community Credit Union reached the U.S. Court of Appeals for the Seventh Circuit after photos and videos of her performance were posted to the Internet after a performance at a credit union trade association event - despite her desire to forbid this.  The appeals court unanimously rejected her claim (one of many she has brought, some seemingly frivolous) and in a decision written by Judge Richard Posner the court held that Conrad’s performance “was not copyrighted or even copyrightable,” since it wasn’t fixed in a tangible medium. And because the videos taken by members of the audience merely portrayed non-copyrightable material, they didn’t infringe her rights. Conrad also alleged that the event organiser was contractually obligated to prohibit posting of videos of her performance — but the organiser showed that they did make an announcement announcement and so had not induced any copyright violations. The decision affirmed the federal court in Winconsin:  "if you dance around in a giant banana costume at a public event, you cannot restrict people from posting pictures of you doing so under the auspices of copyright infringement." 

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