Monday 17 April 2017

Easter COPYKAT Part 2

Appropriation art and fair use, the latest twist – the estate of Andy Warhol sues photographer Lynn Goldsmith over ‘Prince’ series

The legal status of most (if not all) appropriation art cases within the U.S. hinge on the court’s case-by-case analysis of the fair use doctrine. Many recent cases have involved Richard Prince and his artworks (more information on this can be found here and here). This writer has always found appropriation art fascinating. From Handel’s famous borrowings to the ground-breaking ‘It Takes a Nation of Millions to Hold Us Back’, taking something old and re-imagining it enriches our culture. Within the jurisdiction of the US, the contentious issue has always been (and will always be) whether the new use of the work falls under fair use, or whether it falls outwith the doctrine and is therefore an infringement of copyright.

Andy Warhol
The estate of Andy Warhol is at the centre of the most recent twist relating to the interaction between appropriation art and copyright law. In an interesting turn of events, the estate of Warhol has pre-emptively filed suit against photographer Lynn Goldsmith. Goldsmith had complained to the Warhol Foundation that Warhol’s 1984 ‘Prince’ series infringes her copyright in a publicity photograph taken in 1981. Goldsmith reportedly stated in an email to Daily News that, “I believe that Warhol infringed my rights and I will oppose their action and counter claim for copyright infringement.”

Amongst the four causes of action in the complaint submitted by the estate, a declaratory judgement of fair use is being sought. The complaint reads: “Although Warhol often used photographs taken by others as inspiration for his portraits, Warhol's works were entirely new creations… As would be plain to any reasonable observer, each portrait in Warhol’s Prince Series fundamentally transformed the visual aesthetic and meaning of the Prince Publicity Photograph.”

The complaint is also seeking declarations that Warhol’s Prince Series does not infringe Goldsmith’s copyright and that any potential copyright claims are barred by the statute of limitations (set at three years under § 507 of the US Copyright Act) and the doctrine of laches. Therefore, if the court action does eventually come to fruition, a fair use analysis may not be necessary if the court finds in relation to any of the other causes of action. The Copykat will no doubt issues updates on this case as they come.

Ed Sheeran’s ‘Photograph’ suit is settled

Ed Sheeran
In her very first post for the 1709 blog, this writer covered Ed Sheeran’s ‘Photograph’ lawsuit. The suit was brought by Martin Harrington and Thomas Leonard in relation to their 2010 single ‘Amazing’. The two songwriters alleged in the initial lawsuit that Ed Sheeran’s ‘Photograph’ was ‘verbatim, note-for-note copyright’.

This case is now settled, with full details of the deal having been kept confidential. However,
according to the Hollywood Reporter, songwriting credits on the BMI database relating to Ed Sheeran’s Photograph have now been updated - the two plaintiffs Martin Harrington and Thomas Leonard are now listed as co-authors alongside Ed Sheeran and Johnny McDaid.

US Safe Harbour – moderators with actual or ‘red flag’ knowledge of infringement might disqualify platforms from safe harbour protection

Safe harbour is the qualified limitation of liability for hosting providers which host third party content, where users have uploaded infringing content (§ 512 of the US Copyright Act). Safe harbour was introduced through the Digital Millennium Copyright Act (“DMCA”) nearly two decades ago.

The 9th Circuit recently issued a ruling in Mavrix Photographs v LiveJournal, which states that; where volunteer moderators can be legally classified as agents of a company, and that said moderators had actual or ‘red flag’ knowledge of infringement in posts they reviewed and authorised, a company might lose its safe harbour protection.

The case surrounds 20 photos belonging to celebrity news photo agency Mavrix. These photos had been published (without Mavrix’s permission) on the gossip site LiveJournal, specifically, its blog ‘Oh No They Didn’t’ (“ONTD”). Of significant importance to the case, the ONTD blog content is uploaded by users. However, before this content is published on the site, it is reviewed by a moderator to ensure adherence to site rules.

Rather than issue a takedown request, Mavrix chose instead to file suit against LiveJournal for copyright infringement. LiveJournal subsequently invoked the safe harbour defence. LiveJournal’s downfall in this case was the fact that it employs a team of volunteer moderators who review all posts according to the website’s rules before any posts are published on the site. According to the court, if the moderators can be classified as agents of LiveJournal, and the agents had ‘red flag’ or actual knowledge of copyright infringement, the safe harbour exception may not apply.

Judge Paez states that “Although LiveJournal calls the moderators 'volunteers,' the moderators performed a vital function in LiveJournal’s business model. There is evidence in the record that LiveJournal gave moderators express directions about their screening functions, including criteria for accepting or rejecting posts. Unlike other sites where users may independently post content, LiveJournal relies on moderators as an integral part of its screening and posting business model.”

The Electronic Frontier Foundation has criticized the decision, stating that “The DMCA does not forbid service providers from using moderators … many online services have employees (or volunteers) who review content posted on their services, to determine (for example) whether the content violates community guidelines or terms of service. Others lack the technical or human resources to do so. Access to DMCA protections does not, and should not, turn on this choice."

This case is reminiscent of the Grooveshark case, where safe harbour protections were denied where employees uploaded infringing content in order to attract users to the service, as also the MP3tunes case, where the  company’s inadequate repeat infringer policy cost it its safe harbour protection.

Pornhub ordered to hand over details of copyright infringers

As a site that relies on content uploaded by third party users, Pornhub falls under the DMCA safe harbour protection. While most copyright owners submit DMCA takedown requests as a means of controlling their copyright, Foshan Limited – known for a particular type of porn brand – has obtained a DMCA subpoena compelling Pornhub to hand over all information available on infringing individuals by 1 May. This includes names, email addresses, IP addresses, user and posting histories, physical addresses, telephone numbers, and any other identifying or account information. The subpoena was issued by a federal court in California.

When Foshan Limited receives the information covered under the subpoena (that is, if Pornhub doesn’t appeal), it may potentially launch legal action against the infringers.

TorrentFreak asserts that, “As far as we’re aware, this is the first time that a rightsholder has used a DMCA subpoena to obtain information about Pornhub uploaders. And since it’s a relatively cheap and easy way to expose infringers, this might not be the last.”

In another recent case, Malibu Media, LLC v Doe, a similar subpoena has been issued to the Internet Service Provider of an alleged infringer who has illegally uploaded pornography. This time, proceedings took place in the district court of Connecticut.

In this case, the subpoena issued had several caveats to protect the identity of the alleged infringer. As reported by William Dalsen, these are “First, the court limited the subpoena solely to the name and physical address of any subscriber associated with the IP address at issue, and not any additional contact information. Second, the court required the ISP to delay its response to the subpoena, pending notice to the subscriber of the lawsuit and of the subpoena, notice to the subscriber that the ISP would comply with the subpoena, and after allowing the ISP itself an opportunity to quash the subpoena. Third, the purported defendant had 60 days from notice of the subpoena to move to quash the subpoena. Fourth, the court would permit the purported defendant to litigate the subpoena anonymously. Finally, plaintiff could not publicly file any identifying information about the supposed defendant without further order of the court.”

These unusual caveats reflect the court’s concern that a defendant, having been accused of distributing pornographic content, may feel coerced into settling any lawsuit merely to avoid being publicly named in that suit.

The photo of Andy Warhol is courtesy of moscot, under the CC BY-SA 4.0 licence.

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