Wednesday 27 February 2019

Kim Kardashian Sues U.K. Online Retailer Claiming Violation of Right of Publicity

Kim Kardashian is suing U.K. fast fashion online retailer Missguided and its U.S. subsidiary for trademark infringement and violation of her right of publicity. The case is Kimsaprincess, Inc.; and Kim Kardashian West v. Missguided USA (Finance) Inc., and Missguided Limited, 2:19-cv-01258 (C.D.Cal).
The complaint alleges that the inexpensive and fast fashion retailer is using Kim Kardashian’s likeness on its site and on its Instagram account to sell clothes. The pages on the site referring to the petite celebrity are no longer available, but the complaint shows a page entirely dedicated to the Kardashians, including a page named “crushin’on kim k,” featuring several photographs of Kim Kardashian, and another page named “5 party looks inspired by the kardashians” featuring Plaintiffs and several of her sisters.

The complaint states that Kim Kardashian commands a fee of several hundred thousand dollars for a social media post, while “longer-term endorsement arrangements regularly garner fees in the millions of dollars.” 120 million people follow her on Instagram, and a little less than 60 million do so on Twitter. The celebrity owns also several trademarks protecting cosmetic and fragrance products.

Kim Kardashian posted this month on her Instagram account a picture of herself wearing a golden dress, writing in the caption “P.S. fast fashion brands, can you please wait until I wear this in real life before you knock it off?” Missguided answered to this post on its own Instagram account with a picture of a model wearing a similar dress with the caption “The devil works hard but Missguided works harder. @kimkardashian you’ve got only a few days before this drops online.”

This particular post raised the attention of Diet Prada, a site dedicated to fashion copycats. It posted that this exchange may well be the fruit of a collaboration between the celebrity and the retailer without revealing the endorsement, adding that “The lack of transparency around celebrity endorsements is a big problem facing social media. We think we smell a rat.”

This is of course a reference to the Federal Trade Commission rules on social media endorsements, under which an endorsement must be disclosed, so as not to be deceptive advertising.

A few days later, Diet Prada again shared in a post that Kim Kardashian may very well have a secret collaboration with yet another fast fashion retailer, Fashion Nova, as it put a sale a copy of a Thierry Mugler vintage dress shortly after Kim Kardashian wore it to an awards soirée.

The complaint may be an answer to these allegations. It explains that Kim Kardashian selectively chooses which products or services she endorses, and as such controls the use of her likeness and trademarks.

The complaint claims that Missguided has breached California’s right of publicity law, Cal. Civ. Code § 3344 and California’s common law right of publicity when it “willfully and without authorization used Kardashian’s name, image, likeness, and persona for commercial purposes, to advertise the Missguided brand and website, and to promote the sale of clothing on Missguided’s site.”

There is no right of publicity federal law, and so each state, except Alaska, Idaho, Iowa, Kansas, North Dakota, Wyoming, and Delaware have their own law. Some states have a statutory right of publicity, sometimes have a common law right of publicity, some states, such as California, have both.

The California statutory law protects use of a person’s name, voice, signature, photograph and likeness for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without this person’s prior consent. The complaint claims that Missguided used Plaintiff’s likeness to sell clothes, on its site, and on Instagram, as it often features on its social media posts links to buy clothes on its site.

Plaintiff is asking compensatory and treble damages in an amount to be proven, but in no event less than $10 million. That would buy a lot of dresses, whether vintage or knock-offs. 
Image is courtesy of Flickr user arcticpenguin under a  CC BY-NC 2.0 license

Tuesday 26 February 2019

A reaffirmation of the law regarding originality for copyright protection under US law

Jade McKellar
For a work to be protected by copyright, a modicum of originality is required. But would a blank form with some text be sufficiently original?

1709 Blog friend Jade McKellar (University of Southampton) discusses a recent decision of the Review Board of the US Copyright Office which confirmed that the answer is ... no.

Over to Jade:

"The United States Copyright Office Review Board affirmed the refusal the register to register a copyright claim to text in the work “Online California DMV Vehicle Registration” on the basis of insufficient creativity.

Some key principles considered by the Review Board relate to:

  • Distinction between ideas and expression: Section 102(b) Copyright Act 1976 excludes protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work” and thus codifies the distinction originated in Baker v Selden, 101 U.S. 99 (1879) between ideas and expression in respect of copyright protection. Copyright protection is available for the expression of ideas, not for the underlying ideas themselves. 
  • Merger doctrine (Baker v Selden): where there is one way, or a limited number of ways for an author to convey an idea, the author’s expression cannot be protected under copyright as it would prevent others from using that idea in other works. 
On the basis of these principles the United States Copyright Office has a presumption against the registration of blank forms. The Office’s Regulations preclude registration of “blank forms […] which are designed for recording information and do not in themselves convey information”.

The Copyright Office will examine a work of this type to determine if it contains “an appreciable amount of written or artistic expression” that can be separated from the work’s method of capturing information.

  • Originality: A work is registrable it is an “original work of authorship fixed in any tangible medium of expression” 17 USC 102(a). For a work to be “original” it must be an independent creation of the author and contain sufficient creativity (Feist Publications Inc v Rural Tel. Serv. Co, 499 U.S. 340 (1991)). Only a modicum, or more than de minimis, quantum of creativity is necessary. There can be no copyright in a work where “the creative speak is utterly lacking or so trivial as to be virtually non-existent”. A mere simplistic arrangement of non-protectable elements does not demonstrate a sufficient level of creativity for protection (Coach Inc. v Peters, 386 F. Supp. 2d 495 (S.D.N.Y. 2005); Satava v Lowry, 323 F. 3d 805 (9th Cir. 2003)). A combination of non-protectable elements will only be eligible for copyright protection in instances where those elements are numerous enough and their selection and arrangement is original enough to constitute an original work of authorship. 

Cartagz filed an application to register a copyright claim in ‘text, arrangement and layout of text’. This claim was later limited to ‘text’. The work for which registration was sought is represented below:

The United States Copyright Office refused to register the claim on the basis that blank forms and similar works are not protected by copyright. Cartagz requested that the office reconsider its refusal to register. The Office re-evaluated the claims in the First Request and reaffirmed its decision not to register the claim on the basis that the work did not contain sufficient originality or creative authorship. 

Cartagz requested pursuant to 37 CFR 202.5(c) that the Office reconsider its refusal a second time, on the basis that the Office had applied a higher creativity standard than warranted by copyright law, that following Harcourt, Brace & World Inc. v Graphic Controls Corp 329 F. Supp. 517 (S.D.N.Y. 1971). Blank forms have been registrable where they exhibit more than a de minimis amount of creativity, and that the work contains sufficient creativity to obtain copyright protection.


The Review Board examined the work in light of the legal standards discussed. The work is a blank form designed to allow the user to record information. Under section 102(b) of the Copyright Act and the merger doctrine, blank forms are not typically subject to copyright protection unless they are shown to contain an appreciable amount of written or artistic expression distinct from the underlying method for recording information.

The Board considered whether the work contains such distinct written or artistic expression to warrant registration: 
  • The work’s constituent elements were merely ‘words and shorts phrases, and, as such, are not copyrightable’ (37 CFR 202.1(a)).
  • The work as a whole is not sufficiently creative to support registration. Works made by public domain elements may be copyrightable if the selection, arrangement and modification of the elements reflects choice and authorial discretion that is not so minor that “the creative spark is utterly lacking or so trivial as to be non-existent”. Cartagz’s work consists of very few elements, most of which are necessary incidents to allow users to record information, and thus the aggregation of words and phrases in the work lacks sufficient creativity to warrant registration. 
Cartagz’s claim was limited to “text”. However, Cartagz additionally asserted that it intended to maintain a claim in “the selection, coordination, and arrangement of the specific textual and graphical content of the Advertisement as a compilation, which it believed would still be covered by its claim in ‘text.’”.

The Board noted that Cartagz did not register a claim in compilation in the initial application. However, the Board found that even if the compilation rubric were applied in examination of the work, sufficient creative compilation authorship to support registration could not be found. The work does not contain a sufficient amount of creative authorship in respect of the selection, coordination, and arrangements of the work’s constituent elements to warrant copyright protection.

The United States Copyright Office Review Board found that the work, comprising a minimal combination of words and short phrases, lacked the ‘modicum of creativity’ requirement expounded in Feist.


This decision has reaffirmed the distinction between protectable original expression of ideas and unprotectable underlying ideas in respect of copyright protection, and the criteria for original authorship and creativity. The Copyright Office followed its longstanding presumption against the registration of blank forms on the basis of these principles, and also confirmed the requirement for an above de minimis quantum of creativity in the assessment of the originality of a work.

Monday 25 February 2019

Vignelli Estate Claims Former Employee Had No Right to Publish Book about Famous Designer

The estate of Lella and Massimo Vignelli, represented by their daughter Valentina Vignelli, and Vignelli Designs, which hold the intellectual property rights in the Vignellis’designs, have filed a copyright and trademark infringement suit in the Southern District of New York against publishers Rizzoli and Mondadori, and Beatriz Cifuentes, a former employee of the Vignellis.

The case is The Estate of Massimo and Elena Vignelli et al v. Rizzoli International Publications, Inc. et al, No 1:19-cv-01584.

Defendants are the publishers and the author of a book published last October, which allegedly used without permission 102 original sketches made by Massimo Vignelli and misrepresented that the book was co-designed by Massimo Vignelli and is endorsed by the Vignelli Estate.

Lella and Massimo Vignelli

Lella and Massimo Vignelli’s designs are known by New York subway riders as the couple designed the now iconic subway signage. The map designed in 1972 is no longer in use, as many riders complained it was difficult to understand, but the train numbers of the lines are still in use. The Vignellis also designed Bloomingdale’s logo and its brown paper shopping bag. Some of their works are part of the MoMA collections.  

They worked together in New York until Massimo Vignelli’s death in 2014. Lella Vignelli died two years later. Their estate is now handling their intellectual property rights.

The 1990 book

Massimo Vignelli often designed books and even wrote a book about the topic, “The Vignelli Cannon.” In 1990, he designed a book published by Rizzoli, “design:Vignelli” and also designed the logo on the cover. Plaintiff claims that this logo “became the distinctive trade dress of the VIGNELLI brand.” In any case, Massimo Vignelli retained the intellectual property rights in it.

The book is registered with the U.S. Copyright Office as a compilation of the texts and photos and contains testimonies about the Vignellis’ work from various writers and photographers. These contributors retained their own rights.

The 2018 book

Beatriz Cifuentes joined Vignelli Associates in 2004 and worked there as a graphic designer. After Lella Vignelli died, and according to the couple’s wishes, the Vignellis’ professional artifacts and a portion of their personal artifacts were sent to the Vignelli Archives.

According to the complaint, the Vignellis’ children found out at that time that Beatriz Cifuentes had kept personal property belonging to Massimo Vignelli that needed to be returned to the Vignelli Archive, including some sketches, which had not yet been published, but which were published in the 2018 book.

Beatriz Cifuentes wrote in the introduction to the 2018 book “on his death bed, Massimo [Vignelli] made [her] promise [she] would finish the book.” However, according to the Complaint, Massimo Vignelli’s will does have a provision about the book.

The copyright infringement claims

The Complaint alleges that permission was not sought to use material for this book, and that Defendants had denied their requests to remove Massimo Vignelli’s name from the design credit, to include an “erratum slip” and to make sure that the press releases and promotional material were corrected.

It also alleges that Defendants reproduced without permission works authored by Massimo Vignelli, and also reproduced essays and photographs of third parties without their permission [these third parties are not parties to this suit, at least not yet. This is a classic copyright infringement claim.

The 1990 book is registered as a compilation, which are protectable by copyright. The Copyright Act defines them as being “formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” However, as explained by the Copyright Office in 2012, such compilation must result in one or more of the congressionally-established categories of authorship to be registered.  This is the case here, as the book is a literary work and also features graphic works.

Plaintiffs also allege that “Defendants prepared a compilation using unpublished works of Massimo Vignelli that were obtained without Plaintiffs’ authorization and then published by Defendants for the first time with the release of the 2018 Book on October 23, 2018.”

Unpublished works can be protected by copyright. Nevertheless, it is the author who has the exclusive right to publicly display the work. Beatriz Cifuentes claims that Massimo Vignelli wanted her to publish his works. This will be important to prove as a defense to the suit. Defendants could still claim fair use, whether permission to publish was granted or not. However, the Supreme Court explained in 1985 that the courts are less likely to find fair use if the work was unpublished, Harper & Row Publishers, Inc. v. Nation Enters. As a reminder, U.S. copyright law provides a very limited moral right to visual artists. Italian law, however, provides such rights, and it will be interesting to see if Plaintiffs will try to access it.

Plaintiffs are asking the court, inter alia, to permanently enjoin Defendants from further copying, marketing, publishing, selling, making derivative works, or otherwise commercially exploiting the works and the 2018 book.

The Defendants may now choose to defend themselves in court, or to settle.

Photo is courtesy of Flickr user Jonathan Wilsson under a CC BY-NC 2.0 license.

Friday 22 February 2019


After our very last post, more on dance steps! Former "Fresh Prince of Bel-Air" star Alfonso Ribeiro has been involved in a lawsuit with Take-Two Interactive, publisher of the video game "NBA 2K," and the publisher of "Fortnite" over avatars in the games being able to do the dance that his character popularised on the hugely popular '90s sitcom ' the 'Carlton Dance'. But now that action has taken a knock back as details of a letter from Saskia Florence at the US Copyright Office to Ribeiro's attorney, David Hecht surfaced as part of federal court documents in California. In the correspondence, Florence wrote that the moves are "a simple dance routine." adding "as such, it is not registrable as a choreographic work".  

The EU Commission has removed a rather odd blog post that attacked internet campaigners, admitting its language was not appropriate and that it could be interpreted as offensive. The post was positioned as a response to the various battles around the EU's planned copyright directive, which introduces a series of reforms, and pointed to the aggressive and polarising lobbying from the tech sector. The post was titled ‘The Copyright Directive: How the mob was told to save the dragon and slay the knight’ and the controversial text included the opinion (that seems related to Brexit) that “We know from recent elections and referendums that simple memorable slogans – however untrue or unobtainable – can go a long way to winning over hearts, minds and voters. Never let the truth get in the way of a catchy slogan”. The post went further in its criticism of the tech sectors efforts to  mislead the public by employing dubious campaigning tactics saying  “It appears as if the largest search and video platforms in the world are afraid of regulation – despite having overwhelming dominance on the internet. Furthermore, there is ample evidence that ‘big technology’ has even ‘created’ grassroots campaigns against the copyright directive in order to make it look and sound as if the EU is acting against the ‘will of the people'”. A statement in place of the post now reads: “This article published by the Commission services was intended to reply to concerns, but also to misinterpretations that often surround the copyright directive proposal. We acknowledge that its language and title were not appropriate and we apologise for the fact that it has been seen as offending”. In related news, representatives of European Union governments have endorsed the compromise reached with the EU Parliament on the overhaul of the bloc's copyright rules, the Romanian presidency of the EU said in a statement on Twitter.

And with that  final draft of the European Copyright Directive now being considered, a number of organisations representing independent record labels and music publishers, songwriters and their collecting societies published a letter calling on the EU Council and European Parliament to vote through the copyright reforms. Independent label's group IMPALA and the Independent Music Publishers International Forum led the call for support for the Directive to now be adopted along with support from the European Composer And Songwriter Alliance, and collecting society groups CISAC and GESAC, with the letter saying "We, the undersigned organisations, representing authors, composers, writers, journalists, photographers and others working in all artistic fields, news agencies, book, press and music publishers, audiovisual and independent music producers, call on the Council Of The European Union and the European Parliament to adopt the Directive On Copyright In The Digital Single Market".

Perhaps in preparation for EU reforms,YouTube has announced changes to it's 'strikes' system as it applies to content flagged for violating the company’s Community Guidelines. Starting February 25th, the first time a creator’s content is flagged, they will get a one-time warning and their flagged content will be removed. Prior to this change, there was no warning, and a first strike would result in a 90-day freeze on live streaming. A second strike would result in a two-week freeze on video uploads.  A YouTube spokesperson told Gizmodo that the strike policies for Community Guidelines and copyright are entirely separate, and that YouTube employees don’t get directly involved copyright disputes. The spokesperson said that if YouTube receives a DMCA takedown notice, they must legally comply with that request and remove the content. Community Guidelines violations—like harmful, hateful, violent content, and spam—are reviewed and decided upon by members of the YouTube team, according to the spokesperson.

The Copyright Royalty Board in the US has published the new mechanical royalty rates that will apply for the use of music in America. The new rates were first published a year ago and include a top line 44% increase in the revenue share rate being paid by the streaming services, which will rise from 10.5% to 15.1%. After a further period of consultation with submissions from both music owners and music users a ‘final determination’ has now followed - although participating parties still have one more chance to appeal. Benjamin Semel who represents the National Music Publishers Association commented: “The final determination that became effective today is even stronger than the initial determination, as the judges clarified an important definition during the rehearing motion phase, providing additional protection against streaming services using product bundling to exclude revenues from the royalty pool”. NMPA President & CEO David Israelite said that digital music companies would ‘declare war on songwriters’ should they appeal the 44% streaming royalty rise decided by the Copyright Royalty Board adding  “Apple has announced it will not appeal. The others won’t say. We will know soon whether some digital companies want to be partners or want to attack the songwriters who make their businesses possible. Stay Tuned.”

US Radio lobbyists and a bipartisan coalition of lawmakers in Washington DC are backing the Local Radio Freedom Act, which would limit the royalties radio stations have to pay for the use of recordings. Similar bills failed in 2017 and 2015 and of course the rapidly passed Music Modernization Act did much to update the law on music use in the USA. Now 124 congress members and five senators have signed on as initial co-sponsors. The bills argue that radio stations "provide free publicity and promotion to the recording industry and performers," so they should not be obliged to pay "any new performance fee, tax, royalty, or other charge." If such fees were imposed, the bill's proponents argue, it would cause "severe economic hardship." Or perhaps just reduce profits for broadcasters.

And finally, in Trinidad & Tobago, Police have arrested seven people in Port of Spain for copyright infringement..The seven vendors were targeted during an exercise which saw officers of the Port of Spain Division, the Municipal Police, and officials from Awesome Copyright interview CD vendors in Independence Square and Charlotte Street. Various CDs and sound equipment were seized with the arrests made pursuant tof Section 41 of the Trinidad and Tobago Copyright Act. The offence carries a jail term of up to ten years and/or a fine of up to $250,000.

Monday 18 February 2019

Copyrighting a dance step? Between a Hard (Milly) Rock and a Copyright Office

We wrote last year about several copyright infringement suits filed against Epic Games, the marker of the Fortnite game, by individuals who became associated with a particular dance move, whether it be their sole claim to fame or not (see here and here).

One of these plaintiffs is rapper Terence Ferguson, aka 2 Milly, who is at the origin of the Milly Rock dance. Dare we say he created it and that the dance is protected by copyright? More on this later. In any case, you can find a tutorial here.

2 Milly claims that the “Swipe It “dance, an “emote” which in 2018 appeared in season 5 of the game, infringes his copyright. Such emotes, as explained by Defendant, “are movements that an avatar performs to express emotions in the game.”

Epic Games attorneys have now moved to dismiss the case (HT Eriq Gardner for posting the memo online). They claim, in support of the motion that Plaintiff failed to state a claim. They also moved to strike the case under the California anti-SLAPP statute, claiming that the copyright infringement suit was filed to discourage Defendant’s speech in connection with a public issue.  Video games are speech, and Defendant cites the U.S. Supreme Court 2011 Brown v. Entertainment Merchants Ass'n case, which found video games to be protected by the Fist Amendment. 

 “No one can own a dance step”

One of defendant’s arguments is that “no one can own a dance step” and that “Plaintiff’s claims is based on his assertion that he has a monopoly on a side step with accompanying swinging arm movement that is then repeated on the other side.

Plaintiff claims his work is protected by copyright. Defendant claims they are mere steps, which are not protectable:

“[c]opyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy.”

This argument differentiates the steps from the choreography. The first are the building blocks of the second. Indeed, they are many steps in dance, and they are used by many different dancers. For instance, Michael Jackson did not create the moonwalk, but he performed it so well that he is associated with it.

Choreography is protected by copyright in the U.S., but this is fairly recent, as the 1909 Act did not protect it. Defendant cites paragraph 805.1 of the Compendium of U.S. Copyright Office Practices, which explains that a choreographic work is “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole” and which points out that Congress did not intend to protect “simple dance routine.

Are the two works substantiality similar?

Defendant describes the 2 Milly dance step as being:

“a side step to the right while swinging the left arm horizontally across the chest to the right, and then reversing the same movement on the other side

Defendant describes the Fortnite’s “Swipe It” as:

consist[ing] of (1) varying arm movements, sometimes using a straight, horizontal arc across the chest, and other times starting below the hips and then traveling in a diagonal arc across the body, up to the shoulder, while pivoting side to side on the balls and heels of the feet, (2) a wind up of the right arm before swiping, and (3) a rolling motion of the hands and forearms between swipes.”

As you can see, “Swipe It” requires many more words and must thus be more complex and thus different from the simple “Milly Rock” step, right?

To determine substantial similarity, courts in the Ninth Circuit use an extrinsic similarity two-part test, where plaintiff must show that the works are substantially similar under both the extrinsic test and the intrinsic test. The extrinsic test is an analysis of the similarities of the two works’ expressive elements, after the courts have filtered out the elements which are not protected by copyright, such as material in the public domain. The intrinsic test analyzes whether an ordinary reasonable person would think that the two works are substantially similar in “total concept and feel.” Defendant claims that the extrinsic test is not satisfied and that thus the case must be dismissed.

Is the right of publicity claim preempted by the Copyright Act?

Defendant is also arguing that Plaintiff’s right of publicity claim is preempted by the Copyright Act and should thus be dismissed, citing Maloney v. T3Media,  where the Ninth Circuit affirmed dismissal of a right of publicity claim is proper if such use  is not “independent of the display, reproduction, and distribution of the copyrighted material.” It remains to be seen if this is the case here as well.

Copyright Office refuses to register the Milly Rock Dance

Meanwhile, the Copyright Office has refused to register the Milly Rock dance, writing that “[c]horeographic works are typically performed by skilled dancers for an audience. By contrast, social dances, such as ballroom dances, line dances, and similar movements are not created by professional dancers. They are instead intended to be performed by the general public for their own enjoyment.”

By doing so, the Copyright Office seems to place dance in a somewhat lower echelon than painting and illustrative art. Indeed, the Supreme Court explained in 1903 in Bleinstein v. Donaldson Lithographing Co. that “persons trained only to the law” should not “constitute themselves final judges of the worth of pictorial illustrations.” Terpsichore is one of the muses, after all, and there is not even a muse for pictorial art…

Thursday 14 February 2019

BREAKING: Agreement on DSM Directive reached in trilogue

Over on the IPKat, Eleonora reports that at last, after several weeks, several discussions, and after France and Germany achieved a compromise on some key provisions in the draft Directive on copyright in the Digital Single Market an agreement has been reached between the European Parliament and Council negotiators on the content of this new piece of legislation.

The text is not yet available, but according to a press release from the European Parliament:

Tech giants to share revenue with artists and journalists: The deal aims at enhancing rights holders’ chances, notably musicians, performers and script authors, as well as news publishers, to negotiate better remuneration deals for the use of their works featured on internet platforms.

Locking in freedom of expression: Sharing snippets of news articles will not engage the rights of the media house which produced the shared article. The deal however also contains provisions to avoid news aggregators abusing this allowance. The ‘snippet’ can therefore continue to appear in a Google News newsfeeds, for example, or when an article is shared on Facebook, provided it is “very short”. Uploading protected works for purposes of quotation, criticism, review, caricature, parody or pastiche has been protected, ensuring that memes and Gifs will continue to be available and shareable on online platforms.

Many online platforms will not be affected: The text also specifies that uploading works to online encyclopaedias in a non-commercial way, such as Wikipedia, or open source software platforms, such as GitHub, will automatically be excluded. Start-up platforms will be subject to lighter obligations than more established ones.

Stronger negotiating rights for authors and performers: Authors and performers will be able to claim additional remuneration from the distributor exploiting their rights when the remuneration originally agreed is disproportionately low compared to the benefits derived by the distributor.

How this directive changes the status quo: Currently, internet companies have little incentive to sign fair licensing agreements with rights holders, because they are not considered liable for the content that their users upload. They are only obliged to remove infringing content when a rights holder asks them to do so. However, this is cumbersome for rights holders and does not guarantee them a fair revenue. Making internet companies liable will enhance rights holders’ chances (notably musicians, performers and script authors, as well as news publishers and journalists) to secure fair licensing agreements, thereby obtaining fairer remuneration for the use of their works exploited digitally.

Next steps: The deal must now be approved by Council representatives and the EP plenary.

Dr. Harald Heker, CEO of German music collection society GEMA, said:  “We welcome the agreement reached today between the EU institutions regarding copyright. Thanks to the Directive, online platforms will finally have to pay authors a fair remuneration for the usage of their works" adding "The draft of the Directive that we now have in front of us imposes a higher level of responsibility onto the online platforms and strengthens the position of creators as well as internet users at the same time.

Andrus Ansip European Commission Vice-President for the Digital Single Market wrote in a tweet that the outcome is a “major achievement for Europe”

Wednesday 13 February 2019

Rights owners call for a halt to EU Copyright reforms - but the creative sector disagrees

Rights holders from across the European Union, including the recorded music sector, music publishing, television and sport have called for a halt to the planned reforms to copyright laws saying that recent revisions to the draft legislation mean that  "regrettably under these circumstances we would rather have no directive at all rather than a bad directive".  But this view ha been challenged by the actual creators of music who are taking a very different view to the corporate owners of copyrights - they still see big benefits from the Copyright Directive.

The planned legislation was first approved by the European Parliament in September 2018 but has undergone numerous revisions and amendments since then and latest draft text makes what rights holders regard as significant concessions to tech companies. The revisions came as compromises - but  after continuous lobbying from the tech sector, in particular Google and YouTube. Last month music rights organisations admitted that the recently proposed versions of the Copyright Directive “[do] not meet the original objective of Article 13” – namely “correct[ing] the distortion of the digital market place caused by User Upload Content (UUC) services”. Record label trade organisations IMPALA and IFPI were specifically opposed to the latest draft text of the copyright directive, as proposed by the European Council.

The most recent amendments are the result of a compromise between France and Germany.

Under the agreement, Article 13 applies to all for-profit online sharing platforms, compelling services to take “effective and proportionate” action to combat the sharing of copyrighted works. The amendment would still oblige all services to install upload filters, but would except those fitting all three following criteria:

- The service has been publicly available within the EU for fewer than three years

- The service has an annual turnover below €10 million

- The service has fewer than five million unique monthly visitors

In response to the 'corporate' rights owners new move, a number of UK organisations representing artists, songwriters and managers have urged EU decision makers to continue working on the Directive. The Council Of Music Makers - that brings together BASCA, FAC, MMF, MPG and the MU - called on negotiators "to proceed with the copyright directive", adding that "we speak with one voice with all the creator-led organisations across Europe and around the world in supporting the copyright directive".

Really? Maybe the record labels (in particular) have begun to take note of  Articles 14 through to Article 16 which will seek to provide artists and songwriters with more transparency, a contract adjustment mechanism and a dispute resolution system and ever - dare we say - equitable remuneration. And a business might not want to support that.  Hmmmmm! So more money from YouTube - that's all good - but passing some of that  on to recording artistes and songwriters - not so good!

Well the message in the open letter from the 'business' side reads as follows:

We are writing as a group of rightsholders representing the music, audio-visual, broadcasting and sports industries, regarding the direction of travel for the Directive on Copyright in the Digital Single Market.

The key aims of the original draft Directive were to create a level playing field in the online Digital Single Market and strengthen the ability of European rightsholders to create and invest in new and diverse content across Europe.

Despite our constant commitment in the last two years to finding a viable solution, and having proposed many positive alternatives, the text – as currently drafted and on the table – no longer meets these objectives, not only in respect of any one article, but as a whole. As rightsholders we are not able to support it or the impact it will have on the European creative sector.

We appreciate the efforts made by several parties to attempt to achieve a good compromise in the long negotiations of recent months. Nevertheless, the outcome of these negotiations in several of the Council discussions has been to produce a text which contains elements which fundamentally go against copyright principles enshrined in EU and international copyright law.

Far from levelling the playing field, the proposed approach would cause serious harm by not only failing to meet its objectives, but actually risking leaving European producers, distributors and creators worse off.

Regrettably, under these conditions we would rather have no Directive at all than a bad Directive. We therefore call on negotiators to not proceed on the basis of the latest proposals from the Council.

Yours sincerely, the undersigned.

ACT – Association of Commercial Television in Europe*
AKTV – Czech Association of Commercial Television
DFL – German Football League
ICMP – The Global Voice of Music Publishing
IFPI – Representing the Recording Industry Worldwide
IMPALA – Independent Music Companies Association
La Liga – The Spanish Football League
Mediapro – Independent Production Company
The Premier League – The English Football League
Związek Pracodawców Prywatnych Mediów – Polish Union of Private Media Employers, Lewiatan

A different approach can be found in the open letter from GESAC, primarily representing music creators - songwriters and author's collection societies -  in the areas of musical, audiovisual, visual arts, and literary and dramatic works. This is the first time the 'music industry' has split - and moved away from one unified voice - although IMPALA qualified it's support in later communications. The 'creatives' say this: 

As the negotiations on the copyright directive enter their final and very critical stage, GESAC, which represents more than one million creators from all sectors through its 32 members from across the EU and EEA, would like to express its strong support for this directive which is essential for the future of creators.

The directive as a whole - and in particular the provisions in article thirteen - creates the long sought after level playing field for creative content in the online market.

It also addresses the major unfairness caused by the enormous 'transfer of value' that favours free-riding tech giants, while it also incentivises European creation, innovation, and investment. The current text is a compromise that goes into the right direction, although further improvements still need to be achieved. You will find enclosed GESAC's priorities and suggestions on the text in this respect.

Without this directive, creators will be entirely deprived of any means to get a fair remuneration in the online environment: the market will be entirely driven by the commercial interests of free-riding tech giants. This would be a fundamental failure for European policy-making and the functioning of our democracy, as it can only be interpreted as an endorsement of the unfair and manipulative practices of tech giants that refuse any rules or oversight.

It is now time to adopt a mandate at [the EU Council meeting] on February 8th and an agreement on the directive in trilogue early next week to send the right message to European citizens: the EU delivers for its people and its values!

We trust your thorough political judgment and sense of fairness will prevail to finalise the last step of this process and remain at your disposal for any complementary clarifications.

the open letter from CMM, the UK's Council of Music Makers, says this:

The UK Council Of Music Makers - comprising BASCA, FAC, MMF, MPG and the MU - call on negotiators to proceed with the copyright directive.

We are the voice of UK songwriters, music producers, performing artists, musicians and music managers. We speak on behalf of thousands of makers of the music this 'industry' represents. We speak with one voice with all the creator-led organisations across Europe and around the world in supporting the copyright directive.

While the current text could be improved and still includes some problematic provisions, it is a compromise. At every step of this process the creative community has sought compromise and been open to dialogue.

Most creators and artists in the UK struggle to make a living from music. Without this directive, creators will be entirely deprived of any means to get a fair remuneration in the online environment: the market will be entirely driven by the commercial interests of free-riding tech giants. This would be a fundamental failure for European policy-making and the functioning of our democracy, as it can only be interpreted as an endorsement of the unfair and manipulative practices of some tech giants that refuse any responsibility.

We make the music that people want to listen to and buy. It is our intellectual property and our rights and we need the copyright directive to put in place reasonable and fair safeguards.

It is hugely disappointing to see the music labels and publishers disregard the interests of their creators and artists in this way. They are trying to overturn years of collaborative work at the eleventh hour by killing the copyright directive. Like YouTube, they have lobbied negotiators hard without consulting or informing the creative community. Heavy-handed tactics of heavyweight businesses.

It is sad to see labels and publishers turn on their creators and artists in this way. They are trying to halt the directive not only because of the latest wording of article thirteen but because they want to avoid the improvements to transparency and fairness that articles fourteen to sixteen bring. We are saddened that the short-term commercial interests of these companies can be put before modernisation of copyright legislation that will benefit the whole industry.

The labels and publishers have shown an unsettling disrespect for the talent that they have the privilege of representing, raising serious questions about their suitability to be the custodians of copyright. We have worked in tandem with UK Music and colleagues across the industry to find compromise and solutions that enable legislation to pass. This directive will affect future generations of creators and performers whose interests need protecting beyond the interests of current models.

We have been engaged and willing to negotiate, and we remain engaged and progressing in good faith, with both tech and industry. We have not given up on this important legislation.

We call on UK government and UK Music to support the adoption of the copyright directive.

Akshat will be updating in future CopyKat posts!