Friday 30 October 2015

French Sculptor Obtains Damages for Destruction of her Work

The Lille High Court rendered  a judgment on September 24th, 2015, ordering champagne house, Vranken Pommery, to pay € 133,500 by way of damages to an artist named Anita Molinero due to the fact that the former had the latter’s sculpture incinerated without her knowledge or consent.  The judgment is of particular interest for its copyright aspects.

Vranken Pommery is a champagne house which commissioned Anita Molinero’s to create a sculpture to be used in its exhibition ‘Experience Pommery#10’. The resultant sculpture (Salto Yano) was on exhibition for few months. After being warned by the fire department about the inflammable material used in the work, it was dismantled with Anita Molinero’s permission and stored in Pommery’s custody.

In March 2014,  Salto Yano was, unbeknownst to Anita Molinero, destroyed by a cleaning company acting on instructions from Vranken Pommery,.

The artist brought legal proceedings against the champagne house on contractual and copyright grounds. 

The former were based on the custodial agreement between the parties as, under the commission agreement, the sculpture was to remain the artist’s property (albeit with an option to purchase in favour of Vranken Pommery) but was to be held in the champagne house’s custody.

On the contractual claim, the Court found in the artist’s favour as the champagne house had failed to live up to the fundamental duty of a custodian, viz. return of the object held in custody in its original state.  Damages were set at €116,500 as this was the price set in the parties’ agreement in the event that Vranken Pommery elected to exercise its option to purchase the work.

Also on the contractual claim, the champagne company was found to have caused non-pecuniary harm to the artist due to the fact that the destruction was deliberate and total and, moreover, was carried out by a cleaning company; this was held to be humiliating for the artist.  Vranken Pommery was ordered to pay € 5,000 to the artist for inflicting moral harm.

As regards the artist’s copyright claims, these related to her moral right and to her economic right.

As regards the moral right claim, the Court awarded € 7,000 to the artist for violation of her moral right as a result of the total destruction of the sculpture.  While not expressly stated by the Court, this no doubt relates specifically to the right of integrity.

As regards the economic copyright claim, the Court held that the total destruction of the sculpture deprived Anita Molinero of the opportunity to publicly display her work in future exhibitions (the right of public display being a specific application of the broader right of communication to the public). Consequently, the court ordered the champagne company to pay € 5,000 as damages to the artist in this respect.

Vranken Pommery has announced that it intends to appeal this ruling on the grounds inter alia of the excessive quantum of damages awarded in light, in particular, of the price Ms. Molinero’s works have fetched to date.

Wednesday 28 October 2015

Music Tank tackles "Creators’ Rights In The Digital Landscape" on November 10th

The Next Music Tank panel debate is a topical one, titled Creators’ Rights In The Digital Landscape and it's on November 10th in London

"in the first half of 2015, over 1 trillion songs, movies and TV series have been streamed online - more than double the amount in 2014 - yet performers still do not receive a fair share of the income generated by their recorded performances."


This think tank considers the pressing issue of creators’ rights and remuneration in the digital landscape.  It is informed by the presentation of a recently published free insight paper by Fiona McGugan, Making Available, Communication To The Public & User Interactivity, which considers the evolution of communication rights that overshadow conventional distribution and reproduction rights as music consumption increasingly shifts away from ownership, towards access models of streaming services. Understanding how this right is applied, territorial variations in the application of rights, and how licensing structures are determined according to the levels of user-interactivity of digital services lie-at the heart of possibly the single biggest issue facing the music industry in recent times - how much artists get paid.

Joining Report author Fiona McGugan (Featured Artists Coalition & Music Managers Forum) will be Horace Trubridge (Assistant General Secretary, Musicians Union); Benoît Machuel (General Secretary, International Federation of Musicians) and Alexander Ross (Partner, Wiggin LLP) and chaired by MusicTank chair, Keith Harris. Other panellists to be added.

Date & Time: Tues 10 Nov; 18.30 - 21.00 hrs | Venue: Fyvie Hall, University of Westminster, 309 Regent St. London, W1B 2UW | Cost: Earlybird rates currently apply!  MT members £20, standard £30 (students £15) |  BOOK HERE

Even better - there's a 1709 Blog Event discount: Our readers can receive £5 off the standard rate of the event using the promo code: CRITDL1115

The Music Tank Insight Paper:  Making Available, Communication To The Public & User Interactivity can be obtained as a free PDF download from this link: And here's a convenient summary: Aside from the report making 4 recommendations, it hosts a detailed study of a little understood/ little known right which is actually pivotal in determining creators’ royalty payments from digital platforms.  Given the regular outpourings of ‘unfair’ from the creator community with regards their statements from streaming platforms, it does raise a central question as to whether technically speaking, rightsholders have actually legally obtained this right necessary in granting licenses to digital platforms.

Image of the Orchestra of the Munich University of Applied Science by Mark Kamin

The CopyKat - Big Brother IS watching YOU

The EFF tell us that Senators Grassley and Leahy, the Chairman and Ranking Member of the Committee on the Judiciary, have published a letter to the Copyright Office asking it to analyse the impact of copyright law on “software-enabled devices” (such as cars, phones, drones, appliances, and many more products with embedded computer systems). This issue is "crucial because technology and the law have evolved in a way that no one could have intended when Congress wrote the present copyright laws, and that evolution has restricted customers’ freedoms to repair, understand, and improve on the devices they buy". And the Library of Congress has just agreed with the fair use advocates who argued that vehicle owners are entitled to modify their cars, which often involves altering software. Car makers including General Motors and other vehicle manufacturers such as tractor maker Deere & Co had opposed the ruling. They said vehicle owners could visit authorised repair shops for changes they may need to undertake - much to the annoyance of drivers and farmers - and somewhat hypocritically it seems to the CopyKat - given the recent VW diesel emissions scandal. More here and from Wired here.

Talking of hypocrisy (or here perceived hypocrisy), according to Torrent Freak, a man called Josh Hadley who was attempting to sell T-shirts featuring the phrase “1984 is already here” has been contacted by the London based Estate of writer George Orwell, author of the dystopian nightmare "1984",  for infringing their copyright and right of publicity. Hadley has taken the T-shirts off the original website, but has said he plans to still sell them in his own online store. Big Brother is indeed watching us all. Calling the Estate's actions 'Orwellian', TorrentFreak says "Ironically, the estate itself has gained a reputation for exerting tight control of copyrights and trademarks, surveilling the Internet for possible offenses.". 

Beyonce by Denis O'Regan
Husband Jay Z may have garnered all the publicity in his 'Big Pimpin' win, but wife Beyonce was also victorious the same day in a case brought against her by Ahmad Javon Lane, who claimed that Beyonce's song "XO" infringed on his song "XOXO."  TechDirt tells us "Except, it didn't. Not by a long shot. While both songs have "XO" in the title, that appears to be about where the similarities end":  The Court, after listening to both songs and reviewing their lyrics "finds that no reasonable jury could find the lyrics of XO and XOXO substantially similar. Indeed, aside from the fact that both songs’ lyrics use the letters “X” and “O,” there is virtually nothing common to the two songs’ lyrics." A representative for Lane issued a statement to ET, saying that the singer "is disappointed with the judge's ruling and is considering fighting his case with an appeal." Interestingly and somewhat confusingly Judge Engelmayer also took the time to ascribe different moods to the tracks, writing, "The two songs also have a different feel -- an appreciative fan would term Lane's track seductive and personal, and Beyonce's track joyous and uplifting." But surely its about the lyrics being copied ..... not the 'feel' being copied? The copyKat felt strange memories of Blurred Lines rising ......

YouTube claims to have paid more than $2bn to music rights-holders in the past few years. The news broke in a comment given by the service as it announced a global licensing agreement with Kobalt-owned collection society AMRA. Music Business Worldwide have done an interesting comparison with two other leading streaming platforms - Spotify and Vevo - saying the figure for YouTube works out very roughly, at $50m being paid by YouTube to music rightsholders a month. But based on recent figures, Spotify’s payouts to rights-holders would have been  $142m per month and in a very rough (and now slightly outdated) monthly payment from Vevo to music rightsholders of $12.5m. Which rightsholders were paid is another very interesting question. YouTube has asked video content rightsholders (here we presume record labels) to sign a new licensing deal, covering both YouTube Red and its traditional ad-supported version of the platform. This contract stipulates, amongst other things, that rights-holders will receive 55% of net revenues from video and display advertising.

After sending thousands of settlement demands to alleged pirates since last summer, a law firm in Finland, Hedman Partners,  is making good on its threats to sue. After initially being asked to pay between 600 and 3000 euros per offence, those targeted by the lawfirm now face demands of up to 10,000 euros plus court costs. Hedman Partners acts on behalf of a number of film, adult content and TV companies and has, perhaps unsurprisingly but perhaps unfairly, been labelled a 'copyright troll'

In our last CopyKat we noted that Aerosmith lead singer Steven Tyler had become the third musician to hit Republican presidential candidate Donald Trump with a cease-and-desist letter for his use of music on the campaign trail. joining R.E.M. bassist Mike Mills and Neil Young, who both asked Trump to stop using their music. The Republicans have a long history of using songs they fit their political agenda without permission, and Law Street provide a useful analysis of both the annoyed musicians and the legal context here

Over 50 websites have been blocked by internet service providers in Portugal as a result of a voluntary agreement reached between government, the entertainment industry and the net sector's trade body, the Association Of Telecommunication Operators. In the Ukraine, legislation is being planned to introduce web-blocking laws alongside new financial penalties for companies who do not comply with anti-piracy efforts. 

CISAC, the global umbrella for collection societies has announced full year figures for 2014 from collections for songs - music, lyrics and compositions: collections were up 2.8% on 2013 - a 5% increase had exchange rates not changed - to 7.9 billion euros. Songs account for 87% of collected monies, and that income was up 2.4% year-on-year. Mechanical rights income, primarily from the sale of CDs and downloads, was down 9% year-on-year, but performing rights revenues were up 3.8% (streams are usually classified as exploiting both mechanical and performing rights). Societies in Europe accounted for 61.3% of collected revenue, while North America accounted for nearly 17%. The five BRICS emerging markets accounted for 5% of the monies collected.

Tuesday 27 October 2015

French Supreme Court on Infringing Works of Joint Authorship

                                                               Two Great Collaborators

By an important ruling handed down on September 30th 2015, the French Cour de cassation has provided some clarity to a rule of procedure in copyright infringement cases involving works of joint authorship (oeuvre de collaboration).

Oeuvres de collaboration are works belonging to several co-authors in indivision (joint property).  The work is the common property of all co-authors.  Common examples include most songs (composer and lyricist) and movies (director, screenwriter, others). 

As the work is the property of all co-authors, case-law established early on a rule of procedure requiring that when one of the co-authors sued in copyright infringement in defense of the work, he had to call into the proceedings all of his co-authors.  Failure to do so would render his action inadmissible.  This applied where (i) he was suing on the basis of his economic rights and (ii) his contribution could not be separated from those of his co-authors. 

This left open two questions:  (i) did the same rule apply where the oeuvre de collaboration was not the infringed work but rather the allegedly infringing work? and (ii) did it apply to moral rights as well?

On the second point, the courts held that the rule did not apply where a co-author was defending his moral right in an infringed oeuvre de collaboration (given the intensely personal nature of such right).

On the first point, in a controversial decision in 2006 the Supreme Court held that the rule did indeed apply where the allegedly infringing work was an oeuvre de collaboration.

In its recent ruling, the Cour de cassation held as follows:

"Whereas the admissibility of an infringement action directed against an oeuvre de collaboration, which is the common property of its co-authors, is subject to the calling into the proceedings of all co-authors, where their contributions cannot be separated, irrespective of the nature of the copyright invoked by the plaintiff."

In this case the plaintiff (the sole composer of a musical work) was relying on his moral rights to sue the co-authors of an allegedly infringing oeuvre de collaboration (a song).  The lower court had held that the rule did not apply due to the fact that the plaintiff was relying on his moral rights.  This focus on the nature of the plaintiff's rights was odd given that his work was not an oeuvre de collaboration.  The Supreme Court correctly overturned on this point, noting that the nature of the copyright relied on by the plaintiff has no bearing on the fact that the allegedly infringing work was an oeuvre de collaboration.

The Court's decision is thus entirely consistent with its previous 2006 ruling extending the rule to cases where the oeuvre de collaboration is the allegedly infringing work.

It should however be noted that the traditional limit to the rule (it does not apply where the infringed work is the oeuvre de collaboration and a co-author acts on the basis of his moral righst) is not affected by this recent ruling.

Link to ruling (in French) here

Monday 26 October 2015

For Pete's sake! The tribulations of an honest not-for-profit self-publisher

This blogger enjoys learning of the experiences of others and often writes about them.  Sometimes, however, it is otiose for him to add anything since the subject of the blogpost writes with such clarity and eloquence that anything added would only be a diminution.  The following piece by New Zealander Peter McDonald is a case in point.  This is his tale:
Images, copyright and non-commercial self-publishing

It's easier now with
modern technology
Someone once called self-publishing ‘an introspective extravagance for rich dilettantes’. Computers and page-layout software have made that label outdated. Whereas rewriting once required scissors and glue, word-processing now enables inexperienced writers to correct and improve text relatively easily. Whereas photography once involved expensive film in cameras and pieces of glossy paper in physical albums, there’s now no need to buy film or to accumulate cabinets of paper photographs. As computers and scanners and databases have advanced, image-management techniques and policies at museums, archives and libraries have continually developed and changed, in response to the technological developments. Both contemporary and historical photographs have become easier to locate.

Amateurs, without any professional help, can now produce reasonably well-designed e-documents or ebooks. They can also self-publish heavily illustrated e-documents with zero printing costs. However, licences may be required for reproducing some images; these permissions can cost hundreds of pounds or dollars, and even – in the commercial world – thousands. Furthermore, for the self-publisher, lacking a professional knowledge of copyright, the rules that govern the reproduction of images can seem mysterious or bewildering – or both.

I am one of those bewildered amateurs. Self-publishing can be for profit or not for profit; my perspective and that of this article is the not-for-profit one. This article describes some of the issues that have arisen in connection with images that I have obtained over the last eighteen months. I happen to live in New Zealand, but most of the images came from UK sources, and I would have encountered similar issues had I been based in Britain.

The sources of the images included libraries, county record offices, local history societies, local and national museums, local and national film archives, newspaper archives, school archives, National Archives, National Trust Images, the Royal Geographical Society, multinational image companies, and individuals. Some of these bodies, once I had explained the non-commercial nature of my proposed publication, charged only the cost price of reprographics and nil for the permission to publish. Some of the sources did not differentiate between their commercial and non-commercial customers; they charged a standard fee to all their customers. One of the image companies, in recognising that my publication was non-commercial and aimed at just a small number of teachers and educationists, reduced its standard price of about £134 by 30 per cent, making £93 an image, still a sizeable lump out of a New Zealand state pension.

Reproduced below is an adapted version of a query I wrote recently to this company, which supplies images worldwide. When I asked these questions, I was halfway through purchasing several of its older images for reproduction in my publication, which would be freely available (ie at no cost) online. I had read several ‘official’ fact sheets and webpages setting out the legal facts on copyright. The main UK copyright rules for artistic works (including photographs) stipulate the duration of the copyright to be seventy years from the end of the calendar year in which the last remaining creator of the work dies. If the creator is unknown, the copyright lasts for seventy years from the end of the calendar year in which the work was created, although if it is made available to the public during that time (by publication, authorised performance, broadcast, etc), the copyright runs for seventy years from the end of the year that the work was first made available.

Despite the apparent clarity of the law, I had come up against two puzzling matters:

Hi, [Account Executive] 
There are a couple of things I ought to try to better understand before purchasing the five images.

My first query might sound a stupid question to a professional but I’ll settle for the stupid label rather than remain ignorant. One of the licence details is ‘Duration: Up to 3 years’. Tied in with this are the start date (1 Jan 2018) and the end date (1 Jan 2021). The start date is obviously based on my estimate of the date of publication, and will quite likely be correct. But what happens after three years, at the end date of the licence?

My second question is about expiry of copyright. For example, one of the photographs I will probably be buying is [Title of Image], November 1912. Is it known to [Name of Image Supplier] when the copyright on this old photograph will expire? Is this sort of information available to the purchaser?



The response from the accounts executive was helpful on the first question and refreshingly frank but frustratingly vague on the second:

Hi, Pete

Don’t fear, this is anything but a stupid question! In theory, at the end of the initial 3 year license period, you would need to relicense if you were still actively promoting / selling the online book. 3 years is a fairly standard duration for an e-book. That said, I can actually issue a 10 year license instead, which would be at the exact same price. At the end of a 10 year period, once again, you would need to pay an additional license fee if you did want to keep selling that e-book.

In reference to your 2nd question, I’ll be honest with you – I’m not entirely sure of this myself. To the best of my knowledge, there is very little content upon which copyright simply expires. On very, very well-known images which are absolutely iconic then it is possible that the image becomes widely available via creative commons but this is under exceptional circumstances and is only likely to happen on images that are absolutely known, the world over.

Generally, if [Image Supplier] owns copyright on an image, we own it indefinitely (or at least until the original photographer / estate of that photographer decides to remove the image from our collections).

I hope this helps you to some extent?

Thanks and Kind Regards

[Account executive]

What are we to make of this advice from a professional? Is it correct? Or is it obfuscating (even if well meant)? The implication seems to be that the company does not know whether the photographer is alive or dead. You get the feeling that, even if the company did know that the photographer was dead, and when he or she died,  this vital information would not be readily disclosed to customers. When in doubt about a particular image, it seems, a cautious publisher should assume that the photograph was taken by a twenty-year-old photographer who lived to be a hundred, thus resulting in a total copyright period of 150 years (eighty plus seventy). At the other extreme, the photographer may conceivably have died shortly after taking the photograph, resulting in a total copyright period of little more than seventy years. In actuality, the total copyright period may often be somewhere between the two extremes.

The laws of copyright that apply to images, heavily influenced by commercial publishing and made intricate by years of legal precedent, and further adapted to cater for electronic images, are a lawyer’s festival of complexities. Even professional librarians and archivists sometimes need specialist legal advice on particular cases. In 2009 Maureen Callahan of the University of Pennsylvania Museum Archives wrote an article titled ‘Copyright for Dummies (Like Me)’. She began: 
‘As far as I can tell, many archivists take a cross-your-fingers-and-pray-like-hell approach to copyright. We err on the side of openness, make a lot of reproductions, and generally feel embarrassed that we haven’t slapped more images onto the internet (ergo this blog). If there’s ever a struggle between access and copyright concerns, access usually wins in my book.’[1]
Public access in Burton: easier
for beer than for images?
I interpret this candid statement as a leaning towards allowing the use of material – particularly orphan works – even at the risk of infringing someone’s copyright. This may be the approach of some archivists. Others follow a less liberal and less risky road.
Burton Library in Burton-upon-Trent has a large collection of archival photographs. Kevin Gallagher, a local historian, provides a local-history website as a not-for-profit service to the community. He has complained about what he considers to be a reluctance of Burton Library to allow access to and reproduction of the images in its collection. He only requires low-resolution versions (for his webpages), but, he says, the necessary permission is still withheld. He explains the background to the Burton Library collection: 
Most of [the Burton Library archive] is comprised of collections that were freely donated to a PUBLIC archive in the hope that they would provide the best PUBLIC access … I, and other local historians and authors, have been denied access on the basis that many are now of unknown ownership so the copyright MAY belong to someone … These issues are slowly but very surely becoming the death of this website as I move to less resistive projects. It is a fraction of what it would have been with co-operation.[2]
I hasten to add here that my own one experience of enquiring about an image at Burton Library met an immediate and helpful response. Likewise, my wider adventures in obtaining images and permissions from numerous bodies in Britain have mostly been satisfactory and eventually successful, despite a persistent and ubiquitous haze of legal uncertainty. The case of Kevin Gallagher and Burton Library is an example of a more serious access-and-use issue that may be widespread and which involves text, such as diaries and letters, as well as photographs.

The Chartered Institute of Library and Information Professionals (CILIP) helped to bring about reforms in 2014 that rebalanced the UK’s copyright regime. These reforms were ‘crucially important for not-for-profit libraries and archives in the digital age, helping them serve their users more effectively, and [to] reduce costs and overheads’.[3] The Libraries and Archives Copyright Alliance (LACA) and CILIP are running the campaign Free Our History, in an attempt to make important historical material freely and lawfully available.[4] They point out that a work under copyright protection cannot be reproduced without the permission of the rights holder, but that 50 per cent of archival records are orphan works whose rights holder cannot be identified and/or traced.

I had never heard the term ‘orphan works’ until recently. The term appeared in an email I received in connection with a reprographics order that I had submitted to a county record office:
Regarding copyright, as photographs created before 1957 and made available to the public in 1970 [when the photographs were deposited at the record office], the images are in copyright until 2040. [Name of record office] is not the copyright owner and cannot therefore provide authorisation for publication to go ahead. It is the responsibility of the publisher and  author of the new work to confirm if the copyright owner can be traced and permission to publish  obtained. Works of unknown authorship are known as orphan works and if you intend to reproduce, publish or otherwise display an orphan work, you should purchase a license, for both commercial and  non-commercial use, from the Intellectual Property Office (IPO).

Please note that there is a fee for a licence. Typically for non-commercial use a licence will cost 10p (exc.  VAT) per item, but for-profit licences will be substantially more expensive. Please also be aware that you will also be asked to pay towards the administration of the licencing scheme. This fee starts at £20, and  rises with each subsequent document you want to licence. For further information on the Scheme, please see The IPO’s Overview for Applicants.  To apply for a licence, click here. Click here to view those works which have been granted a licence.
Now. Put yourself in my position. All I wanted were digital copies of about twenty small monochrome photographs taken in 1950 and of interest only to a handful of teachers and educationists. But I was being drawn into what appeared to me to be a recently invented new bureaucracy, potentially time consuming and expensive. Each of the twenty photographs would need licensing. Undeterred, determined to beat the system, I downloaded and printed the seventeen-page Orphan Works Licensing Scheme Overview for Applicants. Trawling carefully through this document, I was soon mentally planning twenty diligent searches, and wondering whether a previous diligent search had been carried out under the EU Directive with the details published on the Office for Harmonization in the Internal Market (OHIM) database. Half an hour passed before I reached a particular paragraph on page 14:
4.6 TerritorialityWe can only issue licences for the UK. An orphan works licence will cover the lawful use of the work in the UK only. It is the responsibility of the organisation or person using the orphan work to ensure that they comply with the law of any other jurisdictions where they may wish to use the work.
Phew. Bloody great! Although the subject of my writing is a place in England, I will be publishing the document online in New Zealand, which has no equivalent to the UK’s orphan-works licensing scheme. Praise-be to colonial backwardness.

Pete McDonald
22 October 2015

[1] Maureen Callahan, ‘Copyright for Dummies (Like Me)’ (13 Feb 2009) [accessed 16 Oct 2015, here].
[2] Kevin Gallagher, ‘The Local History of Burton upon Trent: Copyright Issues’ (2015) [accessed 17 Oct 2015, here].
[3] CILIP, ‘Changes to UK Copyright Law – Update’ (8 Dec 2014) [accessed 22 Oct 2015, here].
[4] CILIP, ‘Free Our History’ (31 Mar 2015) [accessed 22 Oct 2015, here].

Friday 23 October 2015

The CopyKat - appealing to copyright fans far and wide!

The Shaghai Daily tells us that China's copyright regulator has strengthened its law enforcement policy against alleged piracy in cloud-storage services, which, despite a previous crackdown, "had long provided Internet users a covert channel to download movies and TV series." As part of the 'Sword Net' initiative, cloud-storage services have been ordered to prevent users from uploading, storing or sharing files that may infringe copyright, pursuant to a regulation from the National Copyright Administration (NCA) dated October 14th 2015. The new move was published after a meeting Tuesday attended by leading online data hosting services such as Baidu, Qihoo360, Tencent and Huawei. The new regulation means that cloud service providers must deal wuth those copyright offenders by putting them on blacklist, or suspending or terminating their services. Service providers should also notify copyright holders how to lodge complaints, and commit to handling complaints in a timely manner.

An Illinois couple who own several recording companies specializing in doo-wop, jazz, and rhythm and blues have filed law suit against the major satellite and Internet radio companies in the US over their playing of pre-1972 songs. Following on from the actions from Flo & Eddie of the Turtles and and RIAA, it's the third lawsuit that seeks to obtain payment for use of sound recordings under state copyright laws. Arthur and Barbara Sheridan filed two lawsuits in New Jersey federal court: one against Pandora and Sirius XM (PDF) and another against iHeartMedia (PDF), the parent company of online music service iHeartRadio. Their lawsuits seek class action status, looking to represent owners of pre-1972 songs. The action says that the companies have derived "significant benefits," including "millions of dollars in annual revenue," by playing those songs without permission, the suit alleges. In an action brought by ABS Entertainment, which owns the recordings of Al Green, among others, terrestrial radio broadcaster CBS has argued that not only does state law not apply to their use - a matter the recorded music industry had until recently accepted this interpretation of the law - CBS also says that as it only plays re-mastered versions of pre-1972 sound recordings, these actually have a post 1972 copyright copyright saying "In fact, every song CBS has played in the last four years has been a post-1972 digital sound recording that has been re-issued or re-mastered".  Meanwhile Pandora has confirmed that it has reached a settlement with the major labels over its use of pre-1972 sound recordings. The streaming platform follows the lead of US satellite radio service Sirius which, back in June, agreed to pay $210 million to the three majors - Universal, Sony and Warner - and ABKCO Music, which is best known for controlling the early Rolling Stones catalogue, with Pandora paying the labels $90 million for past and future usage of pre-1972 repertoire More on ArtsTechnica here and the Hollywood Reporter here.

Adolf Hitler's ‘Mein Kampf”  falls out of copyright next year when the term of the copyright, owned by the State of BAvaria, expires. is almost certainly going to re-published and it seems annotated German and French reprints are being prepared. Last week a Paris publisher, Fayard, confirmed in a statement it was going ahead with an annotated French print, after pondering on it for the past four years. A German-language reprint will be handled by the government-funded Institute of Contemporary History in Munich, which emphasizes the book’s historical importance. It too, will be annotatated. More on the Times of Israel here.

The Supreme Court of India has held that no copyright exists on the "title" of a literary work, reversing the decision of the Bombay High Court: "No copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a registered trademark comprising such titles. The Times of India has more.

The 'Dancing Baby' case is not over - with BOTH sides aiming for a rehearing: Whilst at the time of the appelate court's judgement, the EFF called it “an important win for fair use,” but now both the EFF (which is representing the plaintiff, Stephanie Lenz, who filmed her then toddler dancing to Prince's "Let's Go Crazy" ) and Universal Music Corp. have requested an en banc rehearing from the Ninth Circuit. It seems the EFF are looking to strengthe the case for 'fair use' by breathing new life in section 512(f), which allows the targets of illegitimate takedowns to sue the people who sent the invalid notices - potentially arguing that on the facts of this case, Universal could not possibly have acted in 'good faith' when issuing a DMCA takedown' notice  The Universal petition claims that Lenz had no standing for an appeal in the first place because she was not injured by the takedown. UMG will also ask the court to clarify some of the language in the opinion.

Jay Z at Glastonbury 2008 (Nick Cordes)
US district judge Christina Snyder has abruptly dismissed the lawsuit against Jay Z and his producer Timbaland before it went to a jury at a federal court in Los Angeles, ruling that Osama Ahmed Fahmy, the heir of an Egyptian composer Baligh Hamdy, lacked the right to pursue a copyright infringement claim against Jay Z's Big Pimpin in a case that looked at copyrights, moral rights and chain of title. After hearing from experts in Egyptian law, The judge ruled that Egyptian law did not apply and that the case should not go to a jury. “Fahmy lacked standing to pursue his claim. In light of that decision, it will not be necessary to submit to the jury whether Big Pimpin’ infringed Khosara Khosara,” she said. The plaintiffs have said they will file an appeal

Wednesday 21 October 2015

The World’s Cutest Dog too commonly shaped to be copyright protected

Here, courtesy of Denise Verdoold (Banning), is a gripping tale of some canine capers from the Netherlands. This is what she writes:
Boo looking cool
Recognise the act of spending an entire afternoon watching and flicking through entertaining yet distracting-you-from-what-you-are-actually-supposed-to-be-doing clips and pictures of charming children and frolicking animals? Well, if you do, you will certainly have come across Boo, the world’s cutest dog. The adorable Pomeranian dog with its distinctive hair-cut has undeniably caused many a smile, appearing dressed up in colourful dog jumpers or taking a walk together with its canine brother Buddy. Since his first appearance in 2007, Boo has become very popular, its own Facebook page having already been ‘liked’ by more than 17 million people. Boo merchandise includes stuffed toys, puzzles, books and calendars.
And here he is again
Boohoo, the creators of Boo must therefore have been surprised when the Presiding Judge of District Court The Hague (Loos J) in summary injunction proceedings on 12 October 2015 ruled that the stuffed toy likeness of Boo was not protected by copyright. The Presiding Judge considered the characteristics of Boo to be, on the one hand, a realistic copy of the real Boo and, on the other hand, common for stuffed animals. Boo might be the cutest dog in the world, but that now seems not enough to entitle him to claim copyrights in its appearance.

A, the owner of Boo whose name is anonymised in the judgement, established Buddy Boo Inc. (‘Buddy Boo’), a company which, inter alia, develops and markets Boo merchandise. Gund, subsidiary company of Enesco LLC (‘Enesco’), incorporated under the laws of the United States of America, develops and distributes toys. Buddy Boo and Enesco entered into a licence agreement under which Buddy Boo granted Enesco (for the benefit of Gund) the exclusive right to make, to have produced, to sell and have sold items, including stuffed animals, under the name and in the likeness of Boo. One of the products marketed by Gund under the licence agreement is a plush stuffed Boo dog, which is available in various sizes, with and without (removable) clothes.

On 21 August 2014, Buddy Boo obtained from the United States Copyright Office a Certificate of Registration for the work ‘Boo - World’s Cutest Dog - 8” Version’, with the description ‘Plush representation of a living dog’. The certificate states 1 March 2012 as the date of first publication of the work.

Dino Trading B.V., incorporated under Dutch law, markets, inter alia, (stuffed) toys, including the stuffed dog Pom. Pom, like the stuffed Boo, is available in different sizes, with and without an (removable) outfit.

Below, images of the Boo stuffed dog and the Pom stuffed dog, are pictured in proximity to one another.

Pom stuffed dog
Boo stuffed dog
Enesco, acting as the claimant in this matter on the basis of the licence agreement granting Enesco this right, demanded Dino Trading to cease and desist the production and sale of the Pom stuffed dog on the basis that it constitutes a copyright infringement of Boo’s stuffed likeness. After the demand letter to Dino Trading turned out not to have the desired effect, Enesco requested the Presiding Judge of the District Court Gelderland to grant an order to seize before judgement 15,131 stuffed Pom dogs and have them sequestrated in order to secure the surrender of the seized goods on the basis of article 28 of the Dutch Copyright Act.

Following the seizure, Enesco instituted summary injunctive proceedings before the Presiding Judge of the District Court The Hague, requesting the court, inter alia, to order Dino Trading to cease and desist the infringement of the copyrights in the Boo stuffed dog and destroy the remaining stock of Pom stuffed animals, both claims subject to an incremental penalty, and order Dino Trading to remunerate the legal costs Enesco incurred in the proceedings.

Substantiating its claims, Enesco argues that the Boo stuffed toy dog is a creative adaptation of the appearance of Boo - which in itself is alleged to be both original and creative - which does not naturally occur. A number of subjective choices were made designing the stuffed Boo toy, rendering the toy to be a copyright protected work in all countries of the European Union as a result of the concept of ‘work’ having been harmonised throughout the EU.

Enesco put forward 7 characteristics vested in the appearance of Boo the (real) dog and no less than 29 elements relating to the adaption of the appearance for the purpose of the stuffed Boo toy. Boo’s real life characteristics include, inter alia, the fur which is cut relatively short, the choice of cutting the hair of the dog’s face in such a way that it seems to have cheeks and a chin, the seemingly disproportionally large size of the dog’s head created by cutting the hair in a round shape and the choice of cutting the hair on and around the ears in such a way that they seem relatively short and round. A selection of the elements characteristic of the stuffed likeness of Boo includes the disproportionally large head, the positioning of the eyes, nose and mouth, the slightly opened mouth which creates a smile, the shape of the face, the choice of the stitching, materials and colour and the clothes that the Boo stuffed dogs wear.

According to Enesco, the Pom stuffed animal contains all the elements included in the design of the Boo toy and therefore creates the same total impression as Boo’s stuffed likeness.

Dino Trading disagrees, arguing that the stuffed Boo toy enjoys no copyright protection. Furthermore, the appearance of the Pom stuffed dog is not derived from Boo or the Boo stuffed dog, but from a dog Jiff, also a Pomeranian dog which has its own Facebook page and can even be booked as an actor. Therefore, Dino Trading requests the Presiding Judge to reject Enesco’s claims and lift the seizure of the stuffed Pom dogs.

The Presiding Judge of the District Court The Hague denied Enesco’s claim, ruling that the Boo stuffed dog is not copyright protected.

The design of the stuffed Boo dog constitutes a realistic representation of the appearance of the real Boo. As results, the characteristics of the stuffed animal listed by Enesco as copyright protected which are also vested in the real dog, lack originality, according to the Presiding Judge. This is all the more true, as Enesco failed to show that the appearance of Boo is original for a Pomeranian dog, nor that Boo was the first dog having that appearance. Dino Trading, in substantiating its defence, claimed that the so-called ‘Teddy Bear cut’, which corresponds to Boo’s hair cut (Pomeranian dogs naturally having long hair), had been known before 2007, the year in which Boo had its first Teddy Bear cut. Dino Trading also submitted various pictures of dogs having had a Teddy Bear cut, including Jiff, and referred to a number of internet discussions about this cut, all dating from before 2007. Enesco failed to contest Dino Trading’s arguments sufficiently, merely putting forward that the Teddy Bear cut - even if it would be held that this cut existed before Boo had his - has only enjoyed fame since Boo’s introduction.

Regarding the elements characteristics of Boo’s stuffed likeness, the Presiding Judge held these are all either based on the (unprotected) appearance of real life Boo or are commonly used in stuffed animals. Dino Trading had submitted various pictures of stuffed animals to prove this point. Therefore, the characteristics of the Boo stuffed dog were ruled to be trivial, if not functional or having a technical effect. Even the outfits designed for plush Boo were held to be trivial.

Enesco’s claim that the combination of the characteristics rendered the design of the Boo stuffed dog original nonetheless, was also rejected by the Presiding Judge. The design of the Boo stuffed animal consists of, on the one hand, characteristics of the real dog Boo which were copied as realistically as possible and, on the other hand, (non-creative) choices of material and shapes which are common in stuffed animals and meet the functional requirements of such toys. Accordingly the individual elements, nor the combination thereof, can, according to the Presiding Judge, be regarded as the author’s own intellectual creation. Boo the stuffed dog therefore does not enjoy copyright protection.

As a result of the harmonised concept of ‘work’, the conclusion that the Boo stuffed toy does not enjoy copyright protection in the Netherlands, implies that the toy will also not be held to be copyright protected in other EU countries. Therefore, as Enesco failed to submit other circumstances justifying that Boo’s stuffed likeness would be regarded as a copyright protected work in other EU countries, the EU-wide order claimed by Enesco was also rejected by the Presiding Judge.

As a consequence of the Presiding Judge rejecting the claim that the stuffed Boo dog enjoys copyright protection, the prejudgement attachment of the Pom stuffed dogs was lifted. Enesco is therefore required to return the seized toys to Dino Trading.

Enesco was ordered to compensate the legal costs incurred by Dino Trading, amounting to a total sum of EUR 23,782.01.

Every dog has its day, but Boo’s day turned out not to be on the day of the judgment of the Presiding Judge of the District Court The Hague.

The decision (in Dutch) is available here.