Monday 26 March 2018

THE COPYKAT goes back to school

Cartoonist sues Infowars over Political Pepe Poster

The illustrator behind Pepe the Frog, one of the internet’s most popular meme characters, is suing Infowars for copyright infringement.

Matt Furie first illustrated Pepe the Frog, a "blissfully stoned" and "peaceful frog-dude" in 2005. According to the website Know Your Meme, Pepe became associated with the “Feels Good Man” reaction. By 2015 however, the 4chan and Reddit communities perpetuated a connection of Pepe to Donald Trump, with the latter even re-tweeting an image of Pepe as himself.

Several news outlets have explored how fringe groups connected with the American "alt-right" movement have attempted to adopt Pepe, mixing him with various images of hate (see the Daily Beast’s How Pepe the Frog Became a Nazi Trump Supporter and Alt-Right Symbol). Unsurprisingly, Furie has vowed to “aggressively enforce his intellectual property rights” to prevent the unauthorised use of Pepe, as previously discussed by IPKat and the 1709 Blog.  

In this latest complaint, Furie alleges that the American conspiracy theorist website Infowars has misused the Pepe character in merchandise, and in particular, in a "Make America Great Again" poster. In the poster, Pepe appears alongside President Donald Trump, and various other individuals associated with the President and/or with white nationalist views. Infowars claims these are “the heroes of the 2016 anti-establishment revolution,” and notes that “the establishment wants this [poster] taken down.”

Furie's lawsuit notes that damages alone are insufficient compensation for the alleged copyright infringement. He is therefore also seeking a permanent injunction to prohibit Infowars from using Pepe the Frog, or any derivative work based on Pepe.

This is not the first time Infowars has been caught out for copyright infringement. As reported by Buzzfeed in November 2017, InfoWars has copied more than 1,000 articles produced by Russian state-sponsored broadcaster RT without permission.

Chicago landmark featured in controversial political advert without sculptor’s permission
Continuing with the theme of American politics, the artist who created the iconic Cloud Gate in Chicago is “disgusted” that the National Rifle Association (NRA) has featured his sculpture in a recent advertisement.

Nicknamed "the Bean," Cloud Gate is a three-storey high mirrored oblong in central Chicago, created by Indian-born British artist Anish Kapoor. In their video entitled “The Clenched Fist of Truth”, the NRA flashes footage of the sculpture without Kapoor’s consent. In an open letter, Kapoor writes:

Cloud Gate reflects the space around it, the city of Chicago. [...] In the NRA’s vile and dishonest video, Cloud Gate appears as part of a montage of iconic buildings that purport to represent ‘Liberal America’ [...] The NRA in it’s nationalist rhetoric uses Cloud Gate to suggest that these ideas constitute a ‘foreign object’ in our midst. The NRA’s video gives voice to xenophobic anxiety, and a further call to ‘arm’ the population against a fictional enemy. [...] The NRA’s nightmarish, intolerant, divisive vision perverts everything that Cloud Gate – and America – stands for.

Although members of the public are welcome to take and share photographs of Cloud Gate, Kapoor owns the copyright to commercial images of the sculpture, and did not give the NRA permission to use it for their campaign. It is worth noting that the NRA may have chosen to feature a Chicago landmark as a reference to one of Chicago’s most famous former residents, Barack Obama.
However, “much to his shame,” Kapoor has decided to forego legal action against the NRA for its use of Cloud Gate. He explained that after considering his legal options, he was “not prepared for the financial and emotional cost of a protracted fight against the extremely aggressive [and] legalistic” NRA. This story comes at a time of heightened debate surrounding gun control in the United States, after a recent mass shooting in a Florida school left 17 dead.
Fair dealing exemption for Canadian classrooms

Federal Members of the Canadian Parliament have begun a mandated review of the Copyright Act, which is expected to carry on throughout 2018. One issue MPs are examining is the application of “fair dealing” exemption to classroom uses of copyright-protected materials.

In 2012, the Canadian government changed the Copyright Act to include “education” as a stated purpose in the fair dealing exemption. Doing so permits teachers and students to use copyright-protected materials for educational purposes, without having to obtain copyright permission or pay copyright royalties.

The Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), has recently released the Education Ministers' Policy Statement on Fair Dealing. As Zach Churchill, Minister of Education and Early Childhood Development for Nova Scotia and Chair of the CMEC Copyright Consortium explained,  "It's important that copyright law balances the necessary protection of artists and writers works with the ability of teachers and students to use short excerpts from copyright-protected materials in their school work."

Fair dealing does not allow teachers to make unlimited use of any copyright-protected work without permission or payment. Rather, the fair dealing exemption only permits the use of “short excerpts” for educational purposes.

However, the Writers’ Union of Canada says poorly defined changes to the Copyright Act prompted many Canadian schools “to adopt radically expanded copying practices, abandoning the established licensing structure that saw writers and publishers compensated for the use of their work.”

The CMEC statement concludes by asserting that the current Copyright Act works to support Canadian students, without harming the publishing industry.

Copyright fees hit the wrong note with Japanese music schools

Fair dealing for educational purposes is also a hot political story in Japan. The Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) is Japan’s largest copyright management agency. As reported by the Japan Times last year, JASRAC says that “when teachers play a song on the piano in front of their students without permission, they are committing a copyright violation.”

JASRAC announced that private music schools will be required to pay copyright fees, as the use of music to teach piano or other instruments infringes on the “right of performance” under Article 22 of the Japan’s Copyright Law. Kenzo Ohashi, a managing director at JASRAC, explained that music schools must pay copyright fees, because the schools cannot benefit from the exception for performances that are not for profit. JASRAC seeks to collect 2.5 per cent of all annual fees charged by the music schools.

Critics of the move include the Yamaha Music Foundation, which teaches nearly 400,000 students across more than 3,300 schools. Together with about 350 music school operators and other music businesses, they filed a lawsuit in Tokyo District Court against JASRAC, to argue that copyright fees should not be payable when using music for educational purposes.

In December 2017, the group of music-schools and instrument-makers asked the Agency for Cultural Affairs to suspend copyright fee collection until their ongoing lawsuit with JASRAC concludes. However, the collection of fees is supported by the Agency for Cultural Affairs. In a recommendation published on Monday, Ryohei Miyata of the Agency for Cultural Affairs issued a ruling in support of JASRAC collecting such fees. In response to this, JASRAC announced that collection of copyright fees will be started from the music class from April 1.

Calls to reform Australian fair dealing provisions

The Australians are also looking at Copyright law reform and modernisation in respect of fair dealing.

50 years after the passage of the Copyright Act 1968, the Government is now seeking commentary from the public in respect of how Australian copyright law can be modernised and updated. In a consultation paper (PDF) published earlier this month,  the Government highlights three areas of the Copyright Act which may benefit from modernisation: flexible exceptions, contracting out of exceptions, and access to orphan works.

While American “fair use” doctrine is rather flexible by comparison, the key difference between “fair use” and the Australian principle of “fair dealing” is that Australia’s laws set out defined categories of acceptable uses in statute. By way of illustration, Lifehacker explains that in the United States, the fair use doctrine made it permissible to use a VCR to record television at home in 1984. Doing so In Australia however was not legal until parliament created a specific exception in 2006, by which time VCRs were already obsolete.

The current fair dealing regime in Australia allows access to copyright content for criticism or review, parody or satire, reporting news, research or study, giving professional advice, and disability access. The government is now considering adding several new provisions, including those for the purposes of quotation, non-commercial private use, incidental or technical use, data mining and library use, and certain educational uses.

Amongst other questions, the consultation asks the public to what extent they would support the introduction of fair dealing exceptions, and what factors should be considered in determining fairness. Responses to the consultation may lead Australian lawmakers to consider a more adaptable approach to copyright law which is more in line with recent technological advances. The Australian Law Reform Commission has already proposed arguments in favour of adopting fair use.

The Department invites submissions by email, post, or website before 5.00 pm on Monday 4 June 2018.

Bollywood star calls copyright laws “rubbish”

Amitabh Bachchan is generally considered one of the greatest and most influential actors in Indian cinema. In addition to being a world-famous actor, director and producer himself, Bachchan is also the son of a famous Hindu poet and literary scholar, Harivansh Rai Srivastava (known by his pen name of Bachchan) .

Bachchan's work has been used in Movies and music multiple times, including in films "Silsila" and "Agneepath," both starring his son Amitabh. Indian newspaper FirstPost notes that Amitabh also often recites lines from his father's poetry at public functions and on TV shows.

In a recent blog entry, 75 year-old Amitabh voiced strong opposition to the prospect that his father’s works may come into the public domain, writing: “I oppose, disagree, lament, dispute, be in variance of, in vehement loud screams of voice”. The post continues in a rather upset, rambling tone. In particular, he expressed that he did not want his father’s works to be available “for the entire Universe to tread, scratch, mutilate, use in commercial consideration on their own creative discretion.”

Under India’s Copyrights Act 1957, original literary works enjoy copyright protection for a 60-year period which begins from the year following the death of the author. Bachchan passed away in 2003.

For Berne convention signatories, copyright must exist until a minimum of 50 years after the author's death (Berne Convention, Article 7). A number of jurisdictions, including the European Union and the United States, have chosen longer terms of 70 years after the author's death. India’s length is 60 years, but many countries have even shorter terms - some even at 25 years.

Nevertheless, Amitabh writes that his father’s writings are Amitabh’s alone, because “that is my inherited right .. it shall prevail .. ” He continues, “My inheritance be mine.. not another’s after the passing of its stipulated time in years .. 60 .. I am genetically my father’s son .. he be willed to me of all that be in asset of his .. his writings be his .. his heir be me .. his writings be mine .. MINE ! I shall not and will not allow its dilution to general public .."

Amitabh calls copyright law “rubbish” and asks, “how can individual property become public property?” It is somewhat disappointing to see that a man famous for his work in the dramatic arts is seemingly unable to appreciate the benefit of works entering the public domain. Maybe he should have skimmed through the 1709 Blog before sharing his own post...

Is Taylor Swift getting a copycat Reputation?

Taylor Swift’s latest music video, Delicate, has been criticised for its suspicious similarities to a 2016 Kenzo perfume advert directed by Spike Jonze.

In the Kenzo advert, we see a young woman portrayed by actress and dancer Margaret Qualley at a posh black tie event in a hotel. Looking beautiful in an evening dress but nevertheless seemingly uncomfortable and bored, she quietly slips out of the ballroom to pensively roam the hallways of the hotel alone. What made the advert so memorable was that Qualley suddenly starts a wild and garish dance to an upbeat song. W Magazine lauded the advert as “one of the best perfume commercials of all time,” and the Guardian called itone of the most engaging ads” of the year.

Earlier this month, Taylor Swift released the video for Delicate, the latest single off of her sixth studio album, Reputation. The video follows Swift as she walks through a glamourous hotel, increasingly fatigued with the attention of the press and her adoring fans. She manages to escape through the corridors and, under the premise of being invisible, performs a bizarre dance routine through the hallways.

In addition to the plot - in which a bored young woman has a crazy dance party in a fancy hotel - the videos share a colour scheme, choreography, and camera angles. Although Taylor’s dress is blue and Qualley’s is green, both are deep jewel tones and cut a similar, sleeveless silhouette. Twitter users were quick to point out that even the facial expressions of the two women appeared to mirror each other.

The Kenzo advert was a viral success because, as AdWeek explained, “the exuberantly choreographed video was less about technical innovation than about how it changes the way women are portrayed in marketing.” Fans of Swift may therefore be somewhat unnerved that the international pop star, known for being a creative, self-made woman (see Taylor Swift: from saccharine songstress to fearless feminist) has chosen in this instance to be so heavily inspired by another artist’s originality.

Despite claims that Swift’s video is a “blatant rip off”, a Kenzo representative told Dazed that they will not be making a comment on the matter. Although a lawsuit or formal complaint is unlikely, the controversy is already being heard out in the court of public opinion. Taylor Swift’s representation are yet to respond to the criticism.

Upcoming Events

The Humboldt Institute for Internet and Society in Berlin is hosting a workshop series to discuss the most urgent issues around music and copyright law in the digital society. The next workshop is “Deconstructing Intellectual Property Protection for Music” on 19 April - it’s been confirmed that at least one IPKat will be there! For more information visit the workshop website here.

The University of Cyprus is hosting a conference entitled "Pluralism or universalism in international copyright law" from 31 May through 1 June 2018. For more information visit the conference website here.

This CopyKat by Kelsey Farish

Thursday 22 March 2018

US Appellate Court majority rules that 'Blurred Lines' DID infringe Gaye classic

The US Court of Appeals for the Ninth Circuit has upheld the 2015 jury verdict which found that Robin Thicke and Pharrell Williams' 2013 hit 'Blurred Lines' infringed on the copyright in Marvin Gaye's 1977 song 'Got To Give It Up'. The decision had attracted widespread criticism and comment, not least as many commentators felt that the jury made their decision by comparing the 'sound' or vibe of the songs, rather than the actual song itself. The appellate panel's  decision was a split decision, 2-1, with a scathing dissent from US Circuit Judge Jacqueline Nguyen who is openly critical of the majority and said that the Marvin Gaye Estate had been able to “accomplish what no one has before: copyright a musical style.” The decision means that Thicke and Williams remain liable for $5.3m in damages and ongoing royalties to the Marvin Gaye Estate from future revenues earned from 'Blurred Lines'. 

The majority of the panel (Judge Milan D. Smith, Jr and Judge Mary H Murguia) held that “Got To Give It Up” was entitled to broad copyright protection because musical compositions are not confined to a narrow range of expression. That said, the panel accepted, without deciding, the merits of the district court’s ruling that the scope of the defendants’ copyright was limited, under the Copyright Act of 1909, to the sheet music deposited with the Copyright Office, and did not extend to sound recordings.

The panel held that the district court’s order denying summary judgment was not reviewable after a full trial on the merits. The panel held that the district court did not err in denying a new trial. The district court properly instructed the jury that there is no scienter requirement for copyright infringement and that it must find both access and substantial similarity. The district court did not erroneously instruct the jury to consider unprotectable elements of “Got To Give It Up.” The district court did not abuse its discretion in admitting expert testimony. In addition, the verdict was not against the clear weight of the evidence because there was
not an absolute absence of evidence of extrinsic and intrinsic similarity between the two songs. The panel held that the district court’s award of actual damages and infringers’ profits and its running royalty were proper.

Reversing in part, the panel held that the district court erred in overturning the jury’s general verdict in favor of certain parties because the defendants waived any challenge to the consistency of the jury’s general verdicts. In addition, there was no duty to reconcile the verdicts. The district court erred in finding one party secondarily liable for vicarious infringement. To that end rapper  Clifford "TI" Harris and Interscope Records were not liable for any infringement holding: 

 "Harris and the Interscope parties contend that the district court erred in overturning the jury's general verdicts finding in their favour. We agree. First, the Gayes waived any challenge to the consistency of the jury's general verdicts. Second, even had the Gayes preserved their challenge, neither Federal Rule of Civil Procedure 50(b) nor our decisions in Westinghouse and El-Hakem v. BJY Inc, conferred authority on the district court to upset the jury's verdicts in this case. Third, as to Harris specifically, the district court erred for the additional reason that no evidence showed Harris was vicariously liable".

The panel held that the district court did not abuse its discretion in denying the defendants’ motion for attorneys’ fees under § 505 of the Copyright Act or in apportioning costs among the parties.

The majority of the appeals court also disagreed the proposition that the two tracks "differed in melody, harmony, and rhythm". In dissent Judge Nguyen said that the ruling "strikes a devastating blow to future musicians and composers everywhere”.

It will be Judge Nguyen's dissent which will no doubt attract the most attention. In her strongly worded opinion she says “ 'Blurred Lines’ and ‘Got to Give It Up’ are not objectively similar” and that the two songs "differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”

"While juries are entitled to rely on properly supported expert opinion in determining substantial similarity, experts must be able to articulate facts upon which their conclusions—and thus the jury’s findings—logically rely. Here, the Gayes’ expert, musicologist Judith Finell, cherrypicked brief snippets to opine that a “constellation” of individually unprotectable elements in both pieces of music made them substantially similar. That might be reasonable
if the two constellations bore any resemblance. But Big and Little Dipper they are not. The only similarity between these “constellations” is that they’re both compositions of stars.

The case certainly brings up questions of how expert evidence should be viewed by the court: Again and at the end of her opinion Judge Nguyen is critical of the role of the musicologists in this case saying "Admittedly, it can be very challenging for judges untrained in music to parse two pieces of sheet music for extrinsic similarity. But however difficult this exercise, we cannot simply defer to the conclusions of experts about the ultimate finding of substantial similarity. While experts are invaluable in identifying and explaining elements that appear in both works, judges must still decide whether, as a matter of law, these elements collectively support a finding of substantial similarity. Here, they don’t, and the verdict should be vacated. 

Noting that "In assessing the similarity of two pieces of music, it’s important to keep in mind “the limited number of notes and chords available to composers and the resulting fact that
common themes frequently reappear in various compositions, especially in popular music.”
and that "Not all expression is protectable. Originality, the “sine qua non of copyright,” accommodates authors’ need to build on the works of others by requiring copyrightable expression to be “independently created by the author” and have “at least some minimal degree of creativity and that "If an author uses commonplace elements that are
firmly rooted in the genre’s tradition, the expression is unoriginal and thus uncopyrightable" Judge Nguyen adds: "The Gayes, no doubt, are pleased by this outcome. They shouldn’t be. They own copyrights in many musical works, each of which (including “Got to Give It Up”) now potentially infringes the copyright of any famous song that preceded it  ... That is the consequence of the majority’s uncritical deference to music experts."

Judges Smith and Murguia in the majority countered with :"Our decision hinges on settled procedural principles and the limited nature of our appellate review, dictated by the particular posture of this case and controlling copyright law. Far from heralding the end of musical creativity as we know it, our decision, even construed broadly, reads more accurately as a cautionary tale for future trial counsel wishing to maximise their odds of success". They are forthright on Judge Nguyen's dissent "The dissent's position violates every controlling procedural rule involved in this case" and they say "The dissent improperly tries, after a full jury trial has concluded, to act as judge, jury and executioner" and "Our decision does not grant license to copyright a musical style or 'groove'" and they add "Nor does it upset the balance Congress struck between the freedom of artistic expression, on the one hand, and copyright protection of the fruits of that expression, on the other hand".

The central issues raised in the case are far from settled - and up next there is the Led Zeppelin 'Stairway To Heaven' appeal which is pending before the Ninth Circuit in a claim brought on behalf of late Spirit songwriter Randy Wolfe's estate that says that the heavy rock classic copies the riff found on Spirit's instrumental "Taurus".

Williams v Gaye No. 15-56880 D.C. No. 2:13-cv-06004-JAK-AG and 

Blurred Lines: The difference between inspiration and appropriation By Ben Challis (September 2015) here

UPDATE: A very useful article on Billboard here which also discuss the possible approaches to an appeal by Thicke and Williams - an en banc review by the 9th Circuit, or an appeal to the Supreme Court?

and see


UPDATE 13.04.18

An appeal for the 9th Circuit to hear the case 'en banc' has been filed in behalf of Williams and Thicke   The petition for the rehearing argues that this case conflicts with the court's prior copyright decisions and presents exceptionally important issues and "If a copyright holder can now get to a jury simply by proffering an expert to opine that a song's elements are substantially similar to an accused song, without any objective comparison by the court, no musical work is safe from the prospect of copyright liability."