Wednesday 24 September 2014

The CopyKat - updates on Sherlock Holmes and Avatar, amongst other topical tails

NewsCorp CEO Robert Thomson has written to the European Union's Competition Commissioner Joaquín Almunia focusing on the ongoing allegation that Google continues to act in an anti-competitive way, exploiting its near 90% share of the web search market in Europe. Almunia has reopened the European Commission's long-running investigation into Google's search and advertising business, after efforts to reach an agreement with the web firm on how it might overcome competition law concerns faltered. Thomson writes: "The company has evolved from a wonderfully feisty, creative Silicon Valley startup to a vast, powerful, often unaccountable bureaucracy, which is sometimes contemptuous of intellectual property and routinely configures its search results in a manner that is far from objective". He goes on: "The shining vision of Google's founders has been replaced by a cynical management, which offers advertisers impressively precise data about users and content usage, but has been a platform for piracy and the spread of malicious networks, all while driving more traffic and online advertising dollars to Google. [It] has been remarkably successful in its ability to monetise users, but has not shown the willingness, even though it clearly has the ability, to respect fundamental property rights" and "The internet should be a canvas for freedom of expression and for high-quality content of enduring value. Undermining the basic business model of professional content creators will lead to a less informed, more vexatious level of dialogue in our society. Your decision to reconsider Google's settlement offer comes at a crucial moment in the history of the free flow of information and of a healthy media in Europe and beyond".

80 law experts from China's legal system, universities and research centres gathered in Beijing to discuss potential changes to the Internet Copyright Law. At a conference jointly held by Zhuoya Research Center, Tsinghua University and China Intellectual Property Society, experts agreed that China's Internet Copyright Law is in urgent need of revision to deal with increasing infringements and keep up with fast-changing technology. More here.

Talks of a new EU 'ACTA' have resurfaced after the Presidency of the EU Council (currently held by Italy) presented a "paper aimed at structuring the exchange of views on IPR enforcement". The paper notes that the European Commission carried out a consultation on copyright recently, and comments that "the current legislative framework is not necessarily fit for purpose in the digital environment." You can see the Presidency Paper Enforcement of intellectual property rights here.

A US judge has ruled in favour of director James Cameron, Twentieth Century Fox and Lightstorm Entertainment, finding that it could not be proven that they used copyrighted work for the 2009 blockbuster “Avatar” copied from the artist Roger Dean, a respected artist and designer who designed the iconic artwork for many Yes, Budgie, Uriah Heep and Asia albums, as well as albums for the London Symphony Orchestra and the London Philharmonic . We covered this story back in July 2013 in our blog Tales From Topical Oceans  

Dean had argued that  "the overall look and feel of [the Avatar world] Pandora substantially resembles a Roger Dean world in that Pandora's most striking and memorable features are those created by the Plaintiff"  Now United States District Judge Jesse M. Furman, in the Southern District of New York, has dismissed the suit by Dean saying "The works are indisputably similar insofar as they present the natural world in a fantastical way by depicting airborne land masses. But Plaintiff does not have a monopoly on the idea of floating or airborne land, an idea that has been around since at least 1726, when Jonathan Swift published his classic Gulliver's Travels" and the judge also poitnted to Led Zepplin's album Led Zepplin IV and the track Stairway to Heaven, adding "Suspending a landmass is a predictable — if not common — way to make a vista more sweeping, breathtaking, and fantastical, and is plainly subject to both the principle that ideas are not protected and the doctrine of scènes à faire. Put simply, Plaintiff cannot copyright the idea of levitation, a trope often used to suggest a magical or fantastic realm, cf. Williams, 84 F.3d at 589 (“[P]lacing dinosaurs on a prehistoric island far from the mainland amounts to no more than a scene a faire in a dinosaur adventure story.”), and a common feature of films utilizing three-dimensional technology, such as Avatar. Led Zepplin's Stairway to Heaven is subject to a quite separate copyright claim brought by the estate of Randy California, formerly of the rock band Spirit and who wrote the track 'Taurus' which it is alleged forms the basis of the later Stairway to Heaven. Led Zepplin have moved to have the suit dismissed

Bono (c) 2011 Glastonbury Festivals Ltd (Denis O'Regan)
It seems that Apple's relationship with U2 goes much beyond the much criticised automatic donation of the whole new U2 album Songs of Innocence to Apple iTunes users - whether they wanted it o not: It seems Bono and the band have also developed a piracy resistant music platform with Time magazine writing: "[Bono] hopes that a new digital music format in the works will prove so irresistibly exciting to music fans that it will tempt them again into buying music - whole albums as well as individual tracks. Apparently "It might just save the music industry". Hooray to that. Apple already has a Pandora-style service operating in the US called iTunes Radio and more recently invested $3 billion in Beats Music which included a fledgling streaming service.

Iggy Pop (c) 2007 Glastonbury Festivals Ltd
Another star, Iggy Pop, is taking a different tack. He will present the 4th annual John Peel lecture and Mr Pop's topic is "Free Music in a Capitalist tSociety" which takes place in Salford between 13-15 Oct and which sounds like fun  The talk will air live on BBC 6 Music and  will be on BBC4 on Sunday the 19th October. 

the WhoSampled app is now available for Android-powered phones from the Google Play store, enabling Android phone users to track what music has influenced and informed current tracks. The app, already available for iPhones,  "provides detailed information on songs, including what other songs have sampled them, what artists have covered music from other artists, and what remixes were then made for a track - WhoSampled allows users to explore the musical connections in their own music collection".

The U.S. Copyright Office is understaffed and could face additional strains in the future, according testimony by the head of the Office. Maria A. Pallante has brought up the staffing concerns to Congress before, and in prepared testimony for a House Judiciary subcommittee hearing she said that the office’s staff is “smaller than it should be to carry out the volume and complexity of work prescribed by Title 17.” The office has 360 full-time employees, she writes in her testimony. The most pressing concern, according to Pallante’s testimony, is the number of registration staff -  she has forty-eight vacancies out of a staff of 180 experts - and about 25% of the registration specialists remaining are approaching 

Grand Rapids lawyer John J. Bursch, who represents the estate of Sir Arthur Conan Doyle, is hoping he can convince the U.S. Supreme Court to protect the copyright surrounding the author’s most famous character - Sherlock Holmes. Bursch, a partner with the Grand Rapids law firm of Warner Norcross & Judd, is leading a team of attorneys that hopes the Supreme Court will grant a hearing in the copyright dispute between the Doyle estate and Leslie Klinger, the author and lawyer, who wants to use the Sherlock Holmes character in a book he has written. Bursch opines “The estate of Sir Arthur Conan Doyle absolutely has the right to protect the copyrights of the Sherlock Holmes character,”  arguing that Doyle’s stories are still protected under the 1919 copyright law that preserves an author’s copyright for 95 years. Doyle published his last of the 'in copyright' ten Sherlock Holmes  (with Dr Watson) stories in 1927 so the Estate argues that the character of Sherlock Holmes and all related copyright elements remain protected until 2023, drawn from the date upon which the final story published by Sir Conan Doyle enters the public domain (The Case-Book of Sherlock Holmes 1921-1927). Bursch said that conflicting rulings by several federal appeals courts made the case ripe for the Supreme Court’s consideration. The Doyle Estate is understandably keen to maintain it's licensing income from the characters and all of the famous detective in books still in copyright and any use in movies and television shows: on the other had Klinger has successfully argued he does not need to seek their permission prior to publication (unless he was actually using detail from the final ten books still in copyright). Bursch adds “This lawsuit affects so much more than 10 Sherlock Holmes stories,” Bursch told Michigan Live “Other affected characters include such treasures as A.A. Milne’s Winnie the Pooh, Dr. Seuss’ Cat in the Hat, Ian Fleming’s James Bond, DC Comics’ Superman and many others.” In June this year the US Court of Appeals for the 7th Circuit issued its decision in Leslie Klinger v Conan Doyle Estate, in which upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that Mr Klinger was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright. In that decision Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain also its story elements - including its characters - do. Also in June, Supreme Court Justice Elena Kegan refused to issue a stay to prevent the Holmes stories from officially entering the public domain.

And finally, over on the IPKat Jeremy has a an update on Yoda - no, not the diminutive jedi knight from Star Wars but the newly proposed You Own Devices ActTowards an Electronic Devices Flea Market in the Cloud? YODA says…YES! tells us that U.S. Representative Blake Farenthold (R-TX) announced last week that he has introduced a bill in Congress, the You Own Devices Act (YODA), which would amend Section 109 of the Copyright Act by providing that the first sale doctrine applies to any computer program enabling a machine or another product to operate. If YODA is enacted, owners of electronic devices would no longer be barred from selling them by the companies which manufactured the devices, as they claim that the software needed to operate the device was not sold, but licensed to the first buyer. Companies are doing so as they claim copyright ownership in the software. And more on Yoda (yes the software one) here.

Roger Dean v James Cameron: You decide!

and then we have that Led Zepplin cover, Angel Island from Sonic the Hedgehog and Gulliver's Laputa ........

And whose flying Lizards anyway?

More Roger Dean album covers here. Dean sought to introduce anonymous Internet commentary to support his claim for infringement and the similarities between a plaintiff's artwork and the colourful flora and fauna featured on Pandora in the hit movie Avatar but the judge held this to be “irrelevant" saying that a substantial similarity inquiry focuses on the works themselves and not on public discussion of those works and that the only relevant inquiry was whether, as a whole, there was a substantial similarity between Avatar and the protectable elements of Dean's paintings. From a straw poll of comments on the Yesfans website and a number of gamers websites  - most seem to think Avatar IS, on balance,  at least influenced by Dean and many think it is a 'rip off' - but the gamers are more open and don't think Dean has a monopoly on floating islands, stone arches and flying lizards. More on the decision here .

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