Monday 30 March 2015 is reaching out ... to you

Melissa from has written to us to say that she wants to reach out and share a resource that "specifically helps students to understand copyright and the Digital Millenium Copyright Act" -- so if you are inclined towards the United States version of copyright (and that's something we can't escape for long) you might want to investigate Melissa's links.

One is described as the "Ultimate Guide to Copyright for Students" (here)
The other is billed as the "Ultimate DMCA Guide for Students" (here) is described by Wikipedia as
"a commercial website providing a web hosting search tool and also reviews and thematic comparisons of hosting providers who pay to have their services advertised. It was launched in 2007 by Stan Schroeder and Gordan Orlic and it was acquired in 2008 by London-based Quality Nonsense Ltd, with a subsequent redesign and addition of new features".
Readers are invited to inspect these links and form their own conclusions. Whether you like the text or not, it's hugely more readable than most copyright statute law.

Saturday 28 March 2015

The CopyKat - Caymans, C-More, Catchups and Costs

I imagine Sky TV will be breathing a partial sigh of relief - as over on the IPKat Eleonora has a very interesting update from the CJEU in Case C-279/13 C More Entertainment headlined with CJEU says that live broadcasts are not communication to the public within InfoSoc Directive but Member States can protect them and where the court has decided that "[The Information Society] [D]irective provides that broadcasting organizations may prohibit the provision to the public fixations of their broadcasts, so that everyone can access them from a place and at a time chosen individually."  the Court note[d] that, with regard to the nature and extent of the protection which Member States may recognize broadcasting organizations, the Directive does not harmonize any differences between national laws, so it does not preclude more protective provisions. Other relevant decisions are the Svensson case (C‑466/12), where the European Court ruled on (mere) hyperlinking holding that, while a link is an act of making available, where a work is already accessible on the open internet, then that act of making available does not require the consent of rightsholders because it is not a new public, and Bestwater where the CEU found that the framing of a work (or other protected material) which is freely available on a publicly accessible website is allowed, unless it is directed at a different audience than originally intended or is communicated (to the same audience or not) by using different technical means.

The Cayman Islands Minister of Commerce Wayne Panton has announced that the island's legislation will be updated to reflect current UK copyright laws. The minister explained the aim is to offer stronger intellectual property protection that is in line with Britain. As of now, Cayman Islands copyright laws date back to the UK Copyright Act of 1956. Whilst the UK repealed that Act in 1988, the Cayman Islands law remained the same. In a release sent this week government officials said the UK had extended its current copyright Act to the Cayman Islands. The Act has been extended by the Copyright (Cayman Islands) Order 2015, which was passed by the UK Privy Council on 19th March. The new set of copyright laws will replace the UK’s 1956 Act in the Cayman Islands and in its place will be the extensions of the UK’s 1988 Copyright Act. The Cayman Islands are a British Overseas Territory in the western Caribbean Sea. The territory comprises the three islands of Grand Cayman, Cayman Brac and Little Cayman, located south of Cuba and northwest of Jamaica

A New York judge has thrown out the 2012 lawsuit from TufAmerica accusing the Beastie Boys of sampling 1980s funk trio Trouble Funk without permission on 1989’s Paul’s Boutiqueaccording to TimeThe judge ruled that TufAmerica, didn’t have the exclusive rights to the two samples in question. After Trouble Funk’s deal with Island Records was terminated, TufAmerica agreed in 1999 to administer copyrights for only two of Trouble Funk’s members; an agreement with the third member was reached in 2012, but the judge ruled that those documents don’t justify TufAmerica’s copyright claim saying "Putting aside the issue of whether the 2012 agreement and 1999 agreements can be read together, the 2012 agreement conveys nothing more than the bare right to sue" and adding "It has long been the rule that [w]here ... an agreement transfers nothing more than the bare right to sue ... [it] cannot be the basis for standing under the Copyright Act".

Image from wikileaks
WikiLeaks has released  the "Investment Chapter" from the secret negotiations of the TPP (Trans-Pacific Partnership) agreement. The document adds to the previous WikiLeaks publications of the chapters for Intellectual Property Rights (November 2013) and the Environment (January 2014). Current TPP negotiation member states are the United States, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei. The TPP is the largest economic treaty in history, including countries that represent more than 40 per cent of the world´s GDP. Julian Assange, WikiLeaks editor said: "The TPP has developed in secret an unaccountable supranational court for multinationals to sue states. This system is a challenge to parliamentary and judicial sovereignty. Similar tribunals have already been shown to chill the adoption of sane environmental protection, public health and public transport policies." .

And another update on the IPKat - this time on the ITV v TVCatchup case ( [2015] EWCA Civ 204) and another referral to the CJEU by the  Court of Appeal (Lady Justice Arden and Lords Justice Kitchin and Underhill), dismissing TVC's appeal, and sending the case back to Luxembourg for a further preliminary ruling of the CJEU, this time on the "difficult question as to the scope of Article 9 of Directive 2001/29 and whether it permits the retention by a Member State of a provision such as s.73 of the CDPA which, in the particular circumstances set out in that section, affords a defence both to an allegation of infringement of copyright in a broadcast and of the copyright in any work included in the broadcast arising from the streaming of public service broadcasts to members of the public where that streaming takes place by wire (a) via the internet (but not including transmission by mobile devices via any mobile telephone network) and/or (b) to users situated in the original broadcast area. ...  I am satisfied that a ruling on this question is necessary for this court to give judgment" (Kitchin LJ). 

The Haiti earthquake aftermath  by Daniel Morel
And finally, following on from our recent blog on the award of $5.6 million in legal fees and costs against Perfect 10, photographer Daniel Morel has failed in an attempt to be awarded legal costs, despite being awarded $1.2 million by a jury in 2013 after his photos from the Haiti earthquake were widely distributed by news agencies Agence France-Presse (AFP)  and Getty after he put them on Twitter: On costs, US District Judge Alison Nathan said "Morel fought a fair fight and won," but added that "Academics and practitioners are... coming to terms with the implications of social media and traditional copyright law" and that the case  was a "close case on the merits" and involved "novel legal issues," so awarding attorneys' fees wouldn't be appropriate in this case. The Judge also noted that AFP and Getty made a $2 million settlement offer to Morel on the eve of trial, substantially more than the $1.2 million Morel could have received. The defendants made a "good-faith attempt at settlement," and that also disinclined the judge to award attorneys' fees. Morel's lawyer had billed him for $1.1 million, but , and noting "opaque and imprecise" billing methods, the Judge ordered that Barbara Hoffman could only receive a $164,580 payment according to Arstechnica.

Friday 27 March 2015


U.S. District Judge George King of the Central District of California is set to decide whether Los Angeles-based music publisher  Warner/Chappell Music has unlawfully been collecting licensing fees for the copyright to “Happy Birthday to You.” The case was brought in 2013 by two New York music producers, a California musician and a film producer who had each paid between $455 and $3,000 in licensing fees to Warner/Chappell Music, the music-publishing arm of Warner Music Group Corp., to perform the song. A Warner/Chappell representative said it sometimes charges major motion pictures between five and six figures to license the most recognizable song in the English language.  The publisher claims that the copyright derives from a 1924 songbook (lyrics) and 1935 piano arrangement (the melody). At that time in America lyrical and musical works enjoyed 95 years of copyright protection from publication (and registration), meaning the music will stay in copyright until 2030.  Under European provisions, the copyright expires 70 years after the death of the longer-living sister, which is the end of next year.

The class action, filed on behalf of anyone who was forced to pay similar fees starting on June 18, 2009, sought a declaratory relief and the return of “millions of dollars of unlawful licensing fees.” The claimant, led by Good Morning To You Productions, argue that it has "irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to 'Happy Birthday,' if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to 'Happy Birthday,' those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935." Robert Brauneis, co-director of the Intellectual Property Law Program at The George Washington University Law School, cast doubt in a 2009 law review article that “Happy Birthday to You” was copyrightable.
In the current case, both sides agree that sisters Mildred and Patty Hill composed and wrote the melody to the song “Happy Birthday to You”. The original melody for "Happy Birthday to You" was composed in by school teacher Mildred Hill in St. Louisville, Kentucky. The song was part of the composition for a song then called called "Good Morning to All," with lyrics by her sister Patty Hill and written in 1889 or 1890. The sisters later sold the copyright to the Clayton F. Summy Company in return for a sheet music royalty, who published a songbook called “Song Stories for the Kindergarten.”  Warner bases its claim of ownership on two copyright registrations in 1935 by that company which it claims included the now familiar “text,” or lyrics, to “Happy Birthday to You.” Warner/Chappell acquired Summy’s successor, Birch Tree Ltd., in 1988.

The Plaintiffs allege those copyrights were for piano arrangements and that “Happy Birthday to You” by then had reached widespread popularity, putting it in the public domain and say 
“Our argument has been all along that the copyright in 1935 only covered that particular piano arrangement,” and “There’s no evidence they [Warner/Chappell] ever acquired rights to the song "Happy Birthday to You" from anyone before 1935 when they registered the copyright.”
If Judge King declines to rule in favour of either the plaintiffs or the music publisher, the case could still go to trial.
And another but different Happy Birthday case in Turkey, where the Court of Appeal has had to decide if using the song "Happy Birthday" in a film - with Turkish lyrics - could be deemed the use of a musical work that involved novelty. Now the CopyKat professes to have scant knowledge of Turkish law - and any input and comment from the 1709 readers would be most appreciated (although we have added a handy link to some FAQs at the end of this blog). Anyway it seems the plaintiff in the case had brought an action before the trial court asserting that he had written a song called "Happy Birthday" ("Mutlu Yıllar" in Turkish), and that all financial rights in this musical work had been transferred to a second plaintiff by agreement in 2005. Both plaintiffs asserted that the defendants – the director and producer of the film Alone (Issız Adam) – had used the song unlawfully in a new film without permission, without indicating the lyricist of the musical work, and had paid no royalties. The plaintiffs demanded "material and moral damages".

The defendants claimed that the plaintiff was not the lyricist of the song, and that registration at the Musical Work Owners' Society did not give the plaintiff ownership rights and further, the defendants argued that the song which they had used in the movie Alone could not be characterised as a musical work.

As the plaintiff could not prove that he had obtained the permission of the lyricist of the original song and the person who had translated the lyrics from English into Turkish (and as the date of translation was not clear), the Court of First Instance dismissed the case. The plaintiff appealed. The Court of Appeal stated that "this song has been anonymously used by society for at least 60 years and the Turkish version of the song is not the original musical work." The Court of Appeal reviewed the case and decided that the song's original lyrics and melody belonged to a foreign party, and that using the song "Happy Birthday" with Turkish lyrics involved no novelty and therefore could not be considered a musical work within the scope of Article 1/B of the Code of Intellectual Property Rights. As a result, the Court of Appeal rejected the appeal. More on Turkish copyright laws here.

USA The National Law Journal and more on CBS News here 

Turkey / Decision of the 11th Civil Chamber of the Court of Appeals, 2013/8293 E, 2014/13652 K.

Thursday 26 March 2015

A Perfect Fail - and a $5.6 million bill

Perfect 10, the adult magazine and now online company, which had previously litigated against the likes of Google &  Amazon, CCBill, Megaupload and Visa amongst many others, and which is often tarred with the 'copyright troll'' moniker, has suffered a bit of a set back in its litigation quest after a U.S. judge ordered the company to pay $5.6 million in legal fees and costs (Perfect 10 v. Giganews). Judge Andre Birotte Jr's judgment is a educational read on just why the Company faced such substantial fees and costs, and perhaps the background is a good place to start for this explantion: The judge noted that the action has involved more than 30 noticed motions, including a motion for change of venue, two motions to dismiss, three Daubert expert witness motions eight motions for summary judgment, and multiple discovery and sanctions motions. The docket in this action includes nearly 700 entries and exceeded 38,000 pages.

The Judge confirmed the award of fees and costs, not least as the almost complete success enjoyed by the defendant "weighs heavily in support of an award of attorneys’ fees under the Copyright Act. On each of Perfect 10’s three theories of copyright infringement, Defendants won unqualified victories: Livewire defeated Perfect 10’s claims of secondary infringement at the pleading stage without leave to amend, and Defendants won on each of Perfect 10’s remaining claims on summary judgment. This sort of complete victory on the merits is significant" . Including a very interesting review of the nature of 'frivolous' claims,  the judge puts out what might be seen as an interesting warning to other 'trolls': "All of the evidence before the Court demonstrates that Perfect 10 is in the business of litigation, not protecting its copyrights or “stimulat[ing] artistic creativity for the general public good.” Fogerty I, 510 U.S. at 527." 

Noting that Perfect 10 seemed to be run as a tax loss entity, the judge also noted "The evidence before the Court also demonstrates Perfect 10 continued that pattern in this litigation, which, as the Court previously noted, has been inconsistent with that of a plaintiff interested in actually protecting its copyrights from unauthorized use." He finally went on to consider the last 'Fogerty' factor, considerations of compensation and deterrence, of which which the judge said "weighs in favor of an award of attorneys’ fees under section 505. This aspect of the Fogerty analysis recognizes that “[d]eterring nonmeritorious lawsuits against defendants seen as having ‘deep pockets’ and compensating parties that must defend themselves against meritless claims are both audible ends”.

Judge Birotte ended this section of his judgment with this "In light of Perfect 10’s well-documented improper motive in bringing suit (see section III.A.1.c, above), the Court has little concern that an award of attorneys’ fees in this action will discourage “starving artists” from protecting their copyrights. If anything, it will discourage serial litigants from bringing unmeritorious suits and then unnecessarily driving up litigation costs in order to drive a settlement. Such a result is entirely consistent with the purpose of the Copyright Act, and this factor weighs in favor of an award of attorneys’ fees."

The judge also took time to comment on what he clearly regarded as another spurious argument from Perfect 10's - that it shouldn't have to pay legal fees because it is was in effect insolvent and heavily in debt. The court noted that Perfect 10 has been making this same exact claim for years in almost every case it had brought, and that president and CEO Norman Zada seemingly ran the business as a tax write off, making it somewhat unbelievable as a defence to meeting costs: As TechDirt notesPerfect 10 admits that it has likely “never been solvent” in more than 15 years of operation.... Indeed, Perfect 10 has repeatedly reported that it was on the verge of bankruptcy. See, e.g., Perfect 10, Inc. v. Google, ... (noting Perfect 10’s argument the same year this action was filed that Perfect 10 was “very close to bankruptcy”). That is, despite the fact that Perfect 10’s primary business is copyright litigation: "Perfect 10 effectively argues that it could never be subject to any attorneys’ fee award under the Copyright Act because it is perpetually in debt and on the verge of bankruptcy. The Court is not persuaded, particularly where, as here, the evidence suggests Perfect 10’s impecunity is intentional."

Perfect 10 is an online adult website - and formerly a monthly and then quarterly men's magazine - that features high resolution topless or nude photographs of 'all natural' women who have not had cosmetic surgery.

Wednesday 25 March 2015

Lost Lucille results in copyright claim

BB King at Glastonbury 2011 - with 'Lucille' (Denis O'Regan)
When Eric Dahl purchased a Gibson guitar at a Las Vegas pawnshop in 2009, little did he think it would lead to a copyright battle with Toyota Motor Sales USA Inc. Having paid nearly $2,200 for the B.B. King Lucille model, Dahl then discovered it was the original “Prototype 1” ES-355 model that  the guitar company had presented to the blues legend on his 80th birthday in 2005. King had performed with the guitar until the summer of 2009, when it was stolen from his home. The Las Vegas Review-Journal tells us that In November 2009, Dahl went to King’s office in Las Vegas to return the guitar. To show his appreciation, King autographed another Gibson Lucille and gave it to Dahl during the meeting. All great so far!

Dahl then wrote about his experiences in three chapters of his 2013 book “B.B. King’s Lucille and the Loves Before Her.”  and it's this story that is now at the centre of a copyright infringement case filed by Dahl, alleging that  car manufacturer Toyota created a television advertisement that “presented an adapted visual interpretation of the story" along with co-defendants advertising agency Saachi & Saachi and video production company Smuggler Inc. The defendants have countered that Dahl’s book “is not substantially similar” to their 30-second advert for the 2015 Toyota Camry, which features a young woman who purchases a storage locker and finds a guitar labelled “Lucille” inside. The woman tracks down the previous owner, B.B. King, who autographs it and gives it back to her: The defence argued "Copyright does not protect facts, ideas, systems, methods of operation, and/or any expression that is not original to the author” and “The concept of a musician who loses a musical instrument which is later found and returned is not unique to plaintiff nor can he claim copyright protection over all such stories”  and “Nor does the fact that the musician in both stories is Mr. King change that result.”

Denying a motion to dismiss by the defence, U.S. District Judge James Mahan in the federal court in Las Vegas, Nevada, has now allowed the case to go to trial, saying "Defendants misapply this rule of law to plaintiff's complaint. Although general themes and ideas are not copyrightable, parallels to more specific elements of a particular expression are protected," and concluded that Dahl’s complaint “adequately alleges similarities between the plot, characters, and sequence of events, among other factors, of the two works.”

Sunday 22 March 2015

The CopyKat - prowling

In the wake of the jury’s verdict in the "Blurred Lines case", Marvin Gaye’s children have filed a new motion to list three record labels and rapper TI as responsible parties in the case – and thus also hold them accountable for the already decided copyright infringement by Robin Thicke and Pharrell Williams. Gaye’s three children Nona, Frankie, and Marvin III, have also written and published an open letter, clarifying their motivations behind taking the copyright case to court on their father’s behalf. In the original trial, the jury exonerated TI and the recorded music labels and distributors Universal Music, Interscope Records and Williams’s Star Trak Entertainment of infringement. A second motions seeks to halt the sale and reproduction of Blurred Lines until both parties reach an agreement on how the Gayes “may share in the copyright and all future proceeds of Blurred Lines, as is their right”. More here.

Rapper and producer RZA says there should be a limit on how much an artist can recover if their songs are sampled without consent. Speaking at SXSW, the Wu-Tang Clan co-founder said that while artists who inspire should be paid, there should be a limit to how much they can demand, especially if the money isn't actually going to the artist: “Art is something that’s made to inspire the future," he said during his stay in Austin, according to the Daily Beast. "If you utilize somebody’s artistic expression blatantly, to [the point] where it’s an identifiable thing, then there should be some sort of compensation to the person who inspires you.” Arguing the sampling itself is creative and an art form, the Shaolin producer, known for crafting unexpected beats from esoteric samples, called for a 50% cap for retroactive payments of sampled material saying "There should be a cut off. Fifty percent is the most” commenting "The Greeks could come sue everybody because one generation teaches the other” and “When you hear an A chord to the D to the E, there are over one million songs with that same progression. And each one of their songs is identified as their own. The point being that art will continue to inspire the next generation, and we will find duplication” before going on to reveal "“I’ve been in situations where I’ve sampled something and the original copyright holder took 90 percent .... That means they ignored all the programming, drumming, keyboard playing I played on top of it, they ignored every lyric, every hook, everything that we built to make it a song. And we wound up selling more copies than the sample[d] version—but yet they took 90 percent of the song.”

And Grammy winner John Legend is also concerned that the Blurred Lines verdict could set a worying precedent for artists creating music inspired by others. The Grammy winner told the Associated Press he understands why people say Pharrell Williams and Robin Thicke's 2013 hit sounds like Marvin Gaye's Got To Give It Up from 1977, adding: 'I said that when I first heard it, too.' But he said he doesn't agree with the jury that determined the performers actually copied elements of Marvin's work but said  "There's a lot of music out there, and there's a lot of things that feel like other things that are influenced by other things" adding "And you don't want to get into that thing where all of us are suing each other all the time because this and that song feels like another song.'"

More copyright, more "Quality Works"? Not quite but maybe, says a study of Italian opera before 1900. As Italy had a wide variety of copyright law provisions until  the late 1860s when Italy itself was finally unified, Stanford economists Petra Moser and Michela Giorcelli compared the varying degrees of copyright protection to the output of operas, compiling a database of more than 2,598 Italian operas written between 1770 and 1900 - and then looked at the longevity of each opera right up to how many recordings of any opera were available in 2014 on Amazon. Vox explains "Copyright laws seem to have created significantly more operas that also had staying power and were of higher quality" and details:  "States with copyrights ended up producing 2.68 additional operas per year, a 121 percent increase over states without copyrights. Historically popular operas (as measured by the 1978 publication, the Annales of Opera 1597-1940) grew by 47 percent, and durable operas [those available on Amazon in 2014] grew by 80 percent.”

Is copyright a human right? Well, the United Nations Special Rapporteur in the field of cultural rights, Farida Shaheed, has presented the first of two consecutive studies, “Copyright Policy and the Right to Science and Culture,” at the 28th Session of the Human Rights Council in Geneva. Shaheed addressed copyright law and policy issues, examining how they may run counter to human rights. The second part of her report will be submitted to the UN General Assembly later this year addressing the connection between the right to science and culture and patent policy. More by Pauline Lee on the excellent Washington College of Law website here.

And finally, The Verge tells us that after pressure from campaigners, SpaceX has published a first batch of more than 100 photos on Flickr under a Creative Commons license. The decision gives the public the ability to download and remix the images freely (as long as they're attributed properly) and has been welcomed as a success for both space fans and copyright advocates. Unlike images of space published by NASA, SpaceX's photos do have some rights reserved, meaning they can't be used for commercial purposes. SpaceX "designs, manufactures and launches advanced rockets and spacecraft. The company was founded in 2002 to revolutionize space technology, with the ultimate goal of enabling people to live on other planets."

Friday 20 March 2015

Fox News Files Motion for Interlocutory Appeal in 9/11 Photo Fair Use Case

Readers of this blog may remember  that Judge Edgardo Ramos from the Southern District of New York (SDNY) denied on February 10, 2015 Fox News Network’s motion for summary judgment in a copyright infringement suit filed by the copyright holder of an iconic 9/11 photograph. Fox News had unsuccessfully moved for summary judgment, claiming fair use. 

Fox News (Defendant) has now filed on March 19 a motion to certify the February 10, 2015 opinion and order for immediate appeal, under 28 U.S.C. § 1292(b), which gives a district judge the power to certify  an order of interlocutory appeal , if he believes that “such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Under Second Circuit case law, cited by Defendant, a question of law is controlling if the certified order would terminate the action, or could significantly affect the conduct of the action, or if the issue has precedential value for a large number of cases.

Fox News is arguing that the February 10, 2015 order is presenting the controlling question of law of whether...

For fair use purposes, whether a secondary user may transform a visual work by placing that work in a new context and for a new purpose, without substantial physical alterations.”

Fox News calls this area of law “murky” and further notes that “guidance is sorely needed” as “the use of visual works on social media… is widespread.”

Transformative Qualities of Social Media

Fox is asking the Second Circuit to recognize a “context-sensitive test” for transformative use, and claims that social media is “transformative by design.” It  argues that “transformative qualities of social media are not taken into account when considering a fair use defense” and that the “use’s particular context” should be taken into account in fair use cases. Such finding would have “massive implications for the millions of Americans who use social media on a regular basis.” Fox News also claims that not considering the use of protected works on social media to be fair "would effectively proscribe a wide swath of ongoing online speech. The public has a strong interest in having these fundamental free-speech concerns addressed at the earliest possible juncture. ”

Defendant further  argues that it had used Plaintiff’s photo “in an inherently transformative context: on social media.” As social media is not one-way to communication, but rather, a way to share ideas, expression on social media “is thus inherently intertwined with comments and criticism,” two of the purposes expressively mentioned by Section 107 of the Copyright Act.  

While this argument alone appears overbroad, as agreeing with it would allow for almost any use of copyrighted work on social media, Fox narrows the argument further along in its memorandum when arguing that interlocutory review is warranted because the order “implicate[d] fundamental free-speech questions,” as its and others’ speech may be chilled “from using copyrighted content on social media to discuss issues of public concern.”

Difference of Opinion Over Appropriate Standard for Transformation of Visual Works

Defendant also argues that certification is warranted because the fair use jurisprudence of the Second Circuit is divided.  While cases such as Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., and Bill Graham Archives v. Dorling Kindersley Ltd. held that a use can be transformative even if the copyrighted work has not been altered, the Second  Circuit placed great weight on transformative use in Cariou v Prince.  Defendant also cited the Second Circuit Authors Guild, Inc. v. Hathitrust case, where the court asserted that “[a]dded value or utility is not the test: a transformative work is one that serves a new and different function from the original work and is not a substitute for it” (at 96).

Transformative Content or Transformative Purpose?

Fox News is arguing that Judge Ramos relied on Cariou, which conflicts with Bill Graham.  It cites a blog post written by Professor Rebecca Tushnet , where she noted that, in Cariou, “the court, despite speaking of purpose, seemed to require transformation of content, contrary to the aims of much appropriation art” and also wrote that “Fox’s purpose… [of use]  was an issue of fact, not indisputably different as the publisher’s was in Bill Graham Archives.” Indeed, in Bill Graham, the Second Circuit found that a publisher’s purpose in using copyrighted images of posters in its biography of the Grateful Dead was “plainly different from the original purpose for which they were created” (at 609) and was fair use.  

Is publication on social media, a new context for the work, enough to warrant finding of a different purpose? Probably not, but the issue of the respective weight of transformative content and transformative purpose for fair use analysis purpose warrants further discussion in court. Many copyright practitioners  and scholars are now rooting for Fox’s motion to be granted, hoping it will lead to another Second Circuit  fair use case, which may clarify Cariou.

Image is courtesy of Flickr user Heather Paul under a CC BY-ND 2.0 license.

Wednesday 18 March 2015

The CopyKat - its greeeeeaaaat to be a copied cat

The author Jeffrey Archer has complained to the Indian Government in an attempt to stop Bollywood producers stealing his novels and turning them into films without his permission. Archer claims that his novel Not a Penny More, Not a Penny Less  was turned into the 2011 romantic comedy hit Ladies v Ricky Bahl, and that Archer's Kane & Abel became the film Khudgarz. Perhaps unsurprisingly, it transpired Archer was in India promoting a new novel. As for future movies, The Times says he told prospective film makers to contact his agent in London. 

Jay-Z has settled a copyright claim brought against him by a Swiss musician who claimed the rapper lifted a sample from an original 1978 song and used it without the artist’s consent. Bruno Spoerri, a 79-year-old Swiss jazz musician, will get 50% of royalties from Jay-Z’s 2013 song “Versus,” reports the Daily Mail. The rapper agreed to a settlement after a year and a half-long legal battle in which Spoerri claimed Jay-Z used a portion of his 1978 song “On the Way” without first clearing the sample with his record label. You can compare the two tracks here

And more .... counsel for Jay-Z and Kanye West expressed confidence that musician Joel R. McDonald’s assertion that the famed rappers' 2011 hit "Made In America" ripped him off would fail, as a Manhattan federal judge prepared to give the songs a listen. The defendants' motion to dismiss is before U.S. District Judge Allison J. Nathan and will be fully briefed by the end of March. The defendants say their tune and McDonald's 2008 work of the same name are “are two completely different songs.”

And with Marvin Gaye's children now musing what other songs may have been 'copied' from their father's work (the last I heard, it was Pharrell Williams in the firing line again for his smash hit 'Happy', which Nona Gaye  says is a copy of Hayes 1966 song 'Ain’t That Peculiar') an appeal in the Blurred Lines case has been formally announced. Robin Thicke and William's lawyer Howard King told reporters "we owe it to songwriters around the world to make sure this verdict doesn't stand". Speaking to Fox Business News, he went on: "My clients know that they wrote the song 'Blurred Lines' from their hearts and souls and no other source. We are going to exercise every post trial remedy we have to make sure this verdict does not stand. We look at it as being in the seventh innings of a game that could go into extra innings". At the trial the Gaye family also said that that Thicke and his estranged wife Paula Patton's co-written track 'Love After War' plagiarised their father's song 'After the Dance'. 

The IP Court of Venice has held that a work created by a lawyer for their client in the performance of legal services was indeed protected by copyright law. The court found that the piece in question, a review of anti-counterfeit regulations, “possesses a creative quality, epitomised by originality and novelty” because the work was "“the result of a personal, original, new and creative elaboration of legal concepts and industry practices and of the experiences of the author” The third-party defendant in the case who was found to have infringed the copyright was ordered to compensate damages determined on an equitable basis (the fact that the regulation was available on the Internet did limit, according to the Court, the harmfulness of the conduct) and ordered the publication of the decision in two newspapers, one national and one local.

UK blocking orders against the Pirate Bay put in place by BT, EE, Virgin and TalkTalk are now seemingly ineffective, possibly as a result of The Pirate Bay switching to an SSL service provided by US company CloudFlare, which made the HTTPS version of the Bay site (rather than the HTTP version) the default address.

Talking of blocking, the Pirate Party MEP Julia Reda, who is currently leading the European Parliaments review into the harmonisation of EU copyright law, has highlighted her view that geo-blocking within the Union is a threat to European culture saying "One cross-border issue users feel strongly about is 'geoblocking'. Most of us are familiar with the error message “This video/content/service is not available in your country.” There’s no digital single market when travellers can't use the services they pay for once they cross a border, linguistic minorities are denied access to cultural works in their native language, innovative services are only available in the big member states because of varying regional hurdles – or UK MEPs are blocked from following the cricket in Brussels." 

The CopyKat is scampering off out BUT just noted this : A Brussels court has ruled that Belgian ISPs don’t have to pay copyright levies for offering access to copyright protected materials online. In an action brought by collection society  Sabam against  the country’s three biggest ISPs (Belgacom, Telenet and Voo) the court of the first instance in Brussels and found that Internet access providers are not liable for information transmitted over their networks. 

Image from wikileaks
The EFF updates us on the Trans Pacific Partnership treaty: "We are deeply concerned about this situation in which important decisions for our nation’s culture and society are being made behind closed doors" reads a joint public statement from Japanese activists who are fighting the copyright provisions in the TPP. A group of artists, archivists, academics, and activists, have joined forces in Japan to call on their negotiators to oppose requirements in the TPP that would require their country, and five of the other 11 nations negotiating this "secretive agreement", to expand their copyright terms to match the United States' already excessive length of copyright.

And finally .... noting that the content industries have managed to blame everyone but themselves for their business woes, Rick Falkvinge, a regular columnist on TorrentFreak, opines: "The copyright industry has managed to kill civil liberties for their own children, ushering in a dystopian surveillance machine, merely to avoid taking responsibility for their own business failures. I lack words to quantify my contempt for these utter parasites." The piece is called "Piracy is just another copyright industry scapegoat" and It's WELL worth a read here!

Tuesday 17 March 2015

How commercial is "non-commercial"? A reader asks ...

One of our readers has written to this weblog to ask about the position under copyright law where teachers seek to use Creative Commons non-commercial (CC-NC) images in a lesson in which students are actually paying to attend the class. Says our reader by way of personal opinion:
"The use of the image does not seem to fall within CC terms of “primarily intended for or directed toward commercial advantage or private monetary compensation” -- but there could be different interpretations. In the United Kingdom as in other countries, many educational organisations now need to charge for attendance, including universities. The only definitive advice I can find is in this document ["Free Knowledge Based on Creative Commons Licenses" by Paul Klimpel] with a German viewpoint from 2012 which advises on avoiding NC licences".
Do readers have any ideas or personal experiences to share with our reader?

Friday 13 March 2015

Your chance to shape a copyright event

Bill Rosenblatt, who runs the very fine Copyright and Technology blog, surveying the world of Copyright and Technology from a New York base but with a global perspective, has just published the date and call for ideas for this year's Copyright and Technology London event, taking place on 18 June (not the October of last year).

Last year, both 1709 (in the person of John Enser) and the IPKat (in the person of Eleonora) chaired panels and can vouch for the excellence of the event, so if you would like to have a say in this year's topics, head over to Bill's site and submit your suggestions.

Ideas on the list so far include:
  • Implications of the “Blurred Lines” decision on copyright in the age of sampling and remix culture 
  • The use of digital watermarking throughout the media value chain 
  • Progress of the UK Copyright Hub, Linked Content Coalition, and other initiatives for centralizing copyright information online 
  • Content protection technologies for browser-base over-the-top streaming video 
  • Progress of graduated response schemes in France, UK, Ireland, and elsewhere
but it is not a closed list.

Copyright Aware - BBC contributes to copyright education

Let's hear it for the BBC, who this week launched a new website, Copyright Aware, highlighting and explaining the subject of copyright to everyone.

Here at 1709, we think that the more exposure people have to the concepts of copyright the better - and in the BBC's case, this involves some rather nifty little films involving explanations of copyright as well as some useful text-based context (pointing, for example, to the scale of the creative industries in the UK).   

Go on the site, watch the films, tell your friends!

As the BBC says in its press release:
"With increasing numbers of people of all ages producing and sharing content online – whether that be photos, videos, blogs and other creative works that are protected by copyright law, the [Copyright Aware] site aims to educate and demystify the subject through a series of videos and practical tools.    
By breaking up the subject of copyright into simple parts that answers basic questions - while also tackling some more advanced concepts like the exceptions to copyright law or how to protect your own work – the site will give all creators of content an awareness and understanding of copyright and the benefits it provides in the digital age.
The site will also serve as an effective resource in the fight against copyright infringement, adopting a facilitating tone, focusing on the individual and their creative efforts and by doing so, hopes that consumers and creators will deal more consciously and responsibly with creative works, recognising the effort and skill that has gone into producing them."
Bal Samra, Commercial Director of the BBC, welcoming the launch of the site said, 
We recognise that our audiences are increasingly producers of copyright, taking photos and shooting films on their phones and sharing those widely online.  We designed the site to help them understand why copyright is relevant to them and to deal more responsibly with the creative works of others which in turn helps support our industry and fund the creation of new creative works for us all to enjoy.” 

The CopyKat - Friday's feline feast

The Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) have both sent letters to the Internet Corporation for Assigned Names and Numbers (ICANN) urging the organization to take strong action against the use of domain names for illegal and abusive activities including those related to copyright infringement. The RIAA had said it was disappointed with ICANN’s treatment of copyright abuse complaints and urged ICANN to make domain name registries and registrars investigate copyright abuse complaints and take swift action, not least because when ICANN recently opened up top-level domains, it included a provision in its contract with the registries of the new top-level domains which was called the Public Interest Commitment - agreeing that they would only do business with domain name registrars that prohibited its customers from distributing piracy, trademark and copyright infringement (amongst other things). More on Techspot here.

Here's an interesting take on copyright reform in the EU: "The reform of copyright also concerns linguistic precision - a distinction should be made between Anglo-American copyright and continental European authors' rights. With copyright exploitation rights are not necessary reserved for the creator." Its from Dietmar Köster, the European Parliament's EPP group shadow rapporteur looking towards a renewed consensus on the enforcement of intellectual property rights in the EU: That debate is being led by the rapporteur for parliament's legal affairs committee, Julia Reda, of the Greens/EFA group.

City University are organising a copyright-related seminar to be held at City Law School on Wednesday 1st April 2015, College Building, Room AG 02. The speaker is Professor Stavroula Karapapa (University of Reading), who will talk about "The Concept of 'Public' in Copyright Law" and will look at "what amounts to an actionable communication of copyright works to the public. Recent rulings of the Court of Justice of the European Union uphold that infringement takes place not only where an unauthorised communication reaches the public but also where a communication is addressed to a «new public», i.e. a public that copyright holders had not taken into account when authorising the initial communication of the work. This newly developed doctrine does not refer to a public or a private circle in a copyright sense, but develops a sui generis legal fiction that fundamentally changes the communication right; it both restricts and expands its scope in ways that were not foreseen when the right was first introduced in international law, European copyright and the national laws of Member States. In its unnecessary complexity and complicated logic that challenges the credibility of copyright, the concept of the “new public” indicates that the extremely broad scope of the communication right is unworkable and counter productive, and invites a principle-based approach in examinations of infringement." More here.

CMU Daily reports that the City Of London Police's IP Crime Unit (PIPCU) has shut down a copyright infringing karaoke website following a complaint by PRS For Music. CMU tells us that KaraokeWorld was a BitTorrent site with a specific focus on accessing unlicensed karaoke tune. The service had a commercial element, with VIP memberships on offer from £5 to £90, which will have heightened the case for taking criminal rather than civil action against the operation. A 46 year old man believed to be the operator of the website was arrested as part of the shutdown. PIPCU Detective Chief Inspector Danny Medlycott told reporters: "The public needs to be aware that by accessing sites like this, they are putting money directly in the hands of criminals, which often then funds other serious organised crime, as well as putting their own financial and personal details at risk of being compromised and used for other fraudulent scams. These websites are stealing from the creative industries that employ thousands of people and PIPCU will continue to work closely with our partners to tackle the criminals behind these sites and bring them to justice".

AND FINALLY - AND coincidently set against the backdrop of the news that Sarah Brightman is working with Andrew Lloyd Webber on new material to perform in space -  this from a anonymous contributor who The CopyKat shall name only as 'Major Tom'.....

'Stimulated by Sarah Brightman's intention to be propelled into space in September, the EU has launched a Public Consultation into the collective administration of rights in extraterrestrial broadcasting. "We have asked her to delay her flight for an indefinite period - possibly several aeons - while we consult and decide on the cross-planet implications of the licensing of her performance', said an EU spokesperson. Elsewhere (George) Lucas Grange, supremo of Universal Music, said 'We are called Universal for a good reason. We have an exclusive arrangement with Ms Brightman and her ex-husband, with his Soyuzful Music Corporation, to handle all the publishing and artistic rights. People laughed at us when we signed everything for the Universe, but they are now laughing on the other side of their galaxies.' This claim was dismissed by Sergey Brin. 'Ms Brinman's voyage will take place in Google Rocket, propelled by Google Zoom. Her Google Watch will stream her singing via Google Play and Universal can go and sing for their royalties. Her destination was Google Moon, but if she fails in her mission then she and the royalties will fall into a Google Black Hole.' Speaking from a black hole in Brussels, an EU spokesperson stated that all modalities would be taken into consideration. The CEO of a central European collecting society, who wished to remain anonyme, said 'all public performance royalties from Ms Brightman's performances that cannot be distributed (and that means all of them) will be sucked into our black box, as is customary'.

To infinity ...... and beyond!

Thursday 12 March 2015

What’s Wrong With the ‘Blurred Lines’ Copyright Ruling?

Got To Give It Up (Marvin Gaye) – transcribed from bar 5 [0:14].
This bassline employs substantial rhythmic variations throughout the song.
"What’s Wrong With the ‘Blurred Lines’ Copyright Ruling" was a headline from the New York Times two days after a civil jury found that Robin Thicke, Pharrell Williams and TI's song infringed Marvin Gaye's 'Got To Give It Up'. In it Jon Caramanica says "Owing to the specifics of copyright law, the jury was instructed to base its decision on the sheet music, a fact that reflects how inadequate copyright law is when it comes to contemporary songwriting and production practices. In 2015, the arrangement of notes on a sheet of paper is among the least integral parts of pop music creation. We’re decades beyond the time when a songwriter penned a tune on paper, then gave it to musicians to perform.

Blurred Lines (Robin Thicke and Pharrell Williams).
This 8-bar bass line is looped throughout the song.
Pointing to the difficulties in this area, Caramanica also comments on the recent 'Stay With Me' settlement where Tom Petty and Jeff Lynne were given 25% of that song which allegedly plagiarised Petty's 1989 hit "I Won't Back Down" - although Caramanica points out the argument there was structural — "both choruses have a similar pace and syllabic emphasis. But Mr. Smith’s song is ecstatic and soaring, and Mr. Petty’s is quietly tenacious. “Stay With Me” is far more indebted to traditional choir gospel than to Mr. Petty’s meditative country-rock" and asking   in truth, once you begin splitting hairs, the possibilities are endless — listen closely to “Got to Give It Up,” and you may hear the skeleton of a song like Prince’s “Kiss.” Will the Gaye family sue him, too?

But there has been a lot of comment and argument out there - some criticising copyright law - but mostly criticising the decision itself, its detrimental effect on creativity and many criticising music lawyers.

Where do we begin? Well, Dr. E Michael Harrington, chair of the music business programme at the School of Audio Engineering Institute (SAE) and reportedly an expert witness in copyright infringement, said he found the ruling absurd saying  “I think it was the worst possible decision. I think it’s really a terrible precedent. There’s no melody, no chord progression, no rhythm, no lyrics,” he explained. 

Perhaps the best analysis and comparison of the two SONGS I had seen is here : its by Professor Joe Bennett, writer and musicologist and Professor of Popular Music and Dean of School of Music & Performing Arts, Bath Spa University. Its a very good read; it was written pre-trial but gives a good idea of why the two songs are NOT similar (even if the recordings are!). The two images I have used are from Professor Bennett's article.

George Harrison got a number of mentions in cyberspace yesterday. Readers may remember the rather complicated 1976 case of  Bright Tunes Music v. Harrisongs Music et al, 420 F. Supp 177 (1976) where Harrison was ultimately ordered to pay $587,000 for "subconsciously" copying parts of the Chiffons' 'He's So Fine' in his song 'My Sweet Lord' - with one commentator saying that when the songs are compared "makes it hard to feel bad for the old Beatle". Well that's his opinion - whereas I remember thinking at the time the songs (well the recordings of the songs I had heard) were quite different. But the decision was not mine to make - it was District Judge Richard Owen's and he held: "Did Harrison deliberately use the music of He's So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He's So Fine with different words, and Harrison had access to He's So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.

Many other older stories about similarities between songs also surfaced - and this article in Time Magazine - 11 Suspiciously Sound Alike Songs and this one on Bloomberg, Six Musicians Who Got Busted for Plagiarizing perhaps sums up what many were thinking - and it is all brilliantly parodied in the Axis of Awesome's YouTube 2011 video "4 Chords" video which neatly and almost seamlessly combines numerous big hits - which all share the same four chords - its well worth a listen to get a sense of perspective! As is What do you mean all Country music sounds the same?!?

After the Chiffons case, Harrison admitted he was to 'paranoid' to write  any new songs for some time afterwards. Time Magazine also noted the 'chilling effects' of the ruling saying 

"It’s easy to see the judgment as a worrisome sign that authorship in music is about to get a lot more narrowly defined. After all, Thicke and Williams didn’t interpolate the actual recording of Gaye’s track; their ripping-off of Gaye, if one agrees with the court that they did indeed rip him off, is a question of having been influenced too much. But without influences and borrowing from one another, there’s practically no popular music at all. Nearly all of contemporary music, from Taylor Swift’s ’80s pastiche on “Style” to Meghan Trainor’s faux-doo-wop stylings on “All About That Bass” to every act that tries to sound like Avicii — they’re all reaching back to music from the recent or distant past, if only because there are only so many ways to truly innovate. Even in Williams’ own back catalog, listeners have noted similarities to other songs: Daft Punk’s “Get Lucky” bears some resemblance to “Criminal World,” from David Bowie’s Let Dance; both were produced by Nile Rodgers. 

The LA Times reported that Los Angeles composer and producer Gregory Butler said that his friends and colleagues in the industry were stunned by the verdict: "You've made it illegal to reference previous material,"  adding "I'm never going to come up with something so radically different that it doesn't contain references to something else."

And Joe Escalante, an early member of the Vandals punk rock band and an entertainment law attorney, said he was concerned that the jury's decision had been driven by emotion rather than what's protected under copyright law. "This may put a smile on the Gaye family's face, but it's a dark day for creativity, and in the end, this will be a net loss for music fans," he said.

But Gaye's daughter, Nona, had this to say ""I don't think there's anything wrong with being inspired. I've been inspired when I made music before. Inspiration's fine, but the line is when you decide to take the complete and utter essence out of the song. When you take all the meat, and leave the bones"

In fact I ended up in a large multi person live debate on FaceBook yesterday where there were a wide range of opinions and questions. It started off with I'm not a fan of Blurred Lines but does this mean Queen are gonna sue Alicia Keys as 'Fallin' sounds similar to the first two chords of 'We Are The Champions' or Madonna is gonna sue Gaga over 'Born This way' or is Bruno Mars going to have to fork out money to Earth, Wind and Fire, Prince and Kool and the Gang for for having similar elements in 'Uptown Funk' to their music" . Other comments included "Drums are copyrighted, dude!" to "All music is influence" to "Pretty sure drum patterns generally can't be copyrighted" to the more specific like "No lyrics or melody have been nicked. It is just that the main hook of the production could be argued to be the vibe of the the rhythm track" countered by the comment that "that if I was Marvin Gaye - I'd be pissed off, and I think i'd be totally within my rights to be pissed off" and  the comment that "A huge part of modern music is production to the point that it often  IS the 'song'. We're in a post-modern song era. The song is no longer the main identity of a track". It ended with "So basically nobody can use an electric piano patch with a funk cowbell without the fear of Gaye's hysterical daughter and her team of legal vampires descending on them"

The EFF picked up a number of these threads saying

"Artists evoke elements of common culture all the time, to make their point or simply to entertain by putting their own twist on what has come before. This is what makes culture a conversation and not a series of disjointed soliloquies. Copyright law, though, is dangerously disconnected with the way culture gets made, and as a result it pushes entire genres and communities to the margins, such as those that involve sampling, remix, and other adaptations" and "Musicians will have to think twice before creating any new songs that evoke the feel of the music that inspired them in their youth. And with the length of copyright we have these days, artists who want to feel confident that their musical influences are in the public domain are going to have to go all the way back to ragtime."

Judge Learned Hand
 United States Court of Appeals for the Second Circuit
Inspiration or appropriation? I went back 99 years to Haas v. Leo Feist, Inc. 234 F. 105 (S.D.N.Y. 1916) where Judge Learned Hand had to compare two works to determine if there had been copying. Despite denigrating the originality of BOTH works, Learned Hand drew lines connecting identical pitches occurring at the same points in the two tunes. A few years earlier, in his opinion in Hein v. Harris (1910), Hand used a similar "comparative method" when he found for the plaintiff because thirteen of seventeen bars were "substantially the same" between the works. In the later case he also favoured the plaintiff because of "parallelism which seemed to [his] ear to pass the bounds of mere accident." And lets not forget that in 1930 Learned Hand again had to look at the line between ideas and the expression of ideas: Reinforcing perhaps what many reading about Blurred Lines might have thought, in Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930) Judge Learned Hand pointed out that the line between idea and expression is an inherently arbitrary one and said:

"Nobody has ever been able to fix that boundary, and nobody ever can."