Monday 29 April 2019


The Verge have published a new article on the role and implications of AI - artificial intelligence - in the 'authorship' of musical works - although the same thoughts must surely apply to artistic, literary and dramatic works . In 'WE’VE BEEN WARNED ABOUT AI AND MUSIC FOR OVER 50 YEARS, BUT NO ONE’S PREPARED' Dani Deahl asks some interesting questions - and find very few answers! As AI begins to reshape how music is made, how are our legal systems going to answer some messy questions regarding authorship. Do AI algorithms create their own work, or is it the humans behind them? What happens if AI software trained solely on Beyoncé creates a track that sounds just like her? Just a few of the thoughts in there!  Jonathan Bailey, CTO of audio tech company iZotope, seemed to most concisely sum up the issue “I won’t mince words,” he told The Verge. “This is a total legal clusterfuck.”

Bloomberg reports that a US photographer could lose some or all of a $450,000 jury award because he didn’t establish that the allegedly infringing business owner willfully infringed his copyrights by hiring a web developer who used unlicensed images. The U.S. Court of Appeals for the Ninth Circuit April 16 reversed part of a jury verdict in favor of photographer Jim Erickson in his 2013 lawsuit against Kraig Rudinger Kast holding that Erickson failed to show Kast financially benefited from the infringement or went beyond negligence into willfulness, remanding those issues back to the lower court: “Negligence is a less culpable mental state than actual knowledge, willful blindness, or recklessness, the three mental states that properly support a finding of willfulness”. And more on in a similar vein from the Second Circuit Court of Appeals in the case between BWP Media and e-commerce website Polyvore - digested by the New York Law Journal here

The US government has published its annual piracy report from the US Trade Representative which highlights where the US feels IP rights are most at risk. Both of America's closest neighbours, Canada and Mexico, appear on the list of countries that should be doing more to protect IP rights but special mention goes to Algeria, Argentina, Chile, China, India, Indonesia, Kuwait, Russia, Saudi Arabia, Ukraine and Venezuela. In a statement the UTSR said  "These trading partners will be the subject of increased bilateral engagement with USTR to address IP concerns. For such countries that fail to address US concerns, USTR will take appropriate actions". Drilling down into where the problems lie,The Pirate Bay gets a mention but the report acknowledges that other forms of piracy are now out-performing file-sharing. The report notes that "pirate streaming sites continue to gain popularity, overtaking pirate torrent and direct download sites for distribution of pirated content". The USTR says that the aim of its annual piracy bad boys list is "to motivate appropriate action by the private sector and governments to reduce piracy and counterfeiting".

A US federal appeals court has rejected a fair use ruling by a lower court in a case that focuses on what can and cannot be considered when applying the doctrine. The District Court in Brammer v. Violent Hues had found that the unauthorised use of a photograph qualified as fair use, even though it was a commercial use that did little to give any new meaning to the original photograph. At the time of the ruling US District Judge Claude M Hilton was widely criticised by legal observers and photographers’ trade groups who disagreed with his ruling that Violent Hues’s use of Brammer’s photo was “transformative” because Brammer had created the image for “promotional” purposes, while Violent Hues used it for “informational” purposes. The U.S. Court of Appeals for the Fourth Circuit has emphatically reversed the lower court’s ruling saying “What Violent Hues did was publish a tourism guide for a commercial event and include [Brammer’s] Photo to make the end product more visually interesting. Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet” adding “If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work” and that " “fair us is not designed to protect lazy appropriators". 

Friday 26 April 2019

Photographer Claims Versace Removed CMI in Instagram Post of Jennifer Lopez

Photographer Robert Barbera has just filed a copyright infringement suit against Versace USA in the Southern District of New York, claiming that the fashion company did not have the right to publish, on its Instagram account, a photograph of Jennifer Lopez wearing Versace [see here]. [This is the second time in a row I am mentioning J-Lo in a blog post…]

Barbera registered the photograph with the Copyright Office. He did not license it to Versace.

Versace’s Instagram account is used to promote the brand and features many pictures of products and models, presumably taken as part of the company’s marketing and public relations strategy. The account is obviously used as a promotional tool. 
Is Versace in hot cappuccino? 

Copyright Management Information and Moral Rights  

Barbera claims copyright infringement and also alleges that Versace “intentionally and knowingly removed copyright management information identifying Plaintiff as the photographer of the Photograph,” thus violating 17 U.S.C. § 1202(b), which forbids to intentionally remove or alter any copyright management information without authorization of the copyright owner.

Copyright management information (CMI) includes, under Section 1202, the “title and other information identifying the work, including the information set forth on a notice of copyright… [t]he name of, and other identifying information about, the author of a work [and] [t]he name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright.”

This is an interesting claim as the Copyright Office has just published its study of attribution and integrity rights in the United States. It addresses the issue of CMI and notes (p.86) that “[i]t is common practice in the digital world for CMI to be stripped from works, disconnecting a work from its authorship and ownership information” and further notes that the provisions of section 1202 “provide a form of quasi-moral rights protection by effectively preserving the names of authors, owners, and other creators in connection with their works.”

In our case, Plaintiff claims that Versace removed the CMI “intentionally, knowingly and with the intent to induce, enable, facilitate, or conceal their infringement of Plaintiff’s copyright in the Photograph. Versace also knew, or should have known, that such falsification, alteration and/or removal of said copyright management information would induce, enable, facilitate, or conceal their infringement of Plaintiff’s copyright in the Photograph.”

Could First Amendment be a Defense?

What about originality? The photograph has been registered and thus was deemed original enough to be protected by copyright. Yet, the pose, the angle, the light, are all quite mundane. What is original in the picture is the striking pattern of the Versace outfit worn by Miss Lopez.

While fashion designs are not protected by copyright in the US, with a few rare exceptions, patterns are protected and the one adorning the cat suit outfit featured in the allegedly infringing photograph is certainly original enough to be protected by copyright. However, Versace could not claim infringement as the picture is protected by the First Amendment: it was taken at a public event, the 2018 MTV Video Music Awards, and Versace used #VMAs as a hashtag. Could posting the picture on its corporate account be protected by the First Amendment? It certainly could be argued.

What about J.Lo.? By thus appearing in the Versace account, dressed in a Versace outfit, her likeness is used for commercial purpose. If this use is unauthorized, she could file a right of publicity suit. However, Versace could then also use the First Amendment as a defense.

However, it is possible, even likely, that the famous singer and actress has an agreement with Versace and that therefore the use of her likeness is authorized. She is one of the #Versacecelebrities, another hashtag used in the post, and has been wearing the brand for years, making headlines sometimes doing so. She was recently nominated CFDA's 2019 Fashion Icon. I won’t write about her in my next blog post. 
Image is courtesy of Flickr user irene. under a CC BY-ND 2.0 license

Wednesday 24 April 2019

Mr. Enjoy is Mr. Plaintiff (Was he the Boss in E*Trade’s Commercials as Well?)

Gianluca Vacchi is a social media influencer and DJ, who has more than 12 million followers on Instagram. He appeared last year in a commercial (do not watch while drinking) for the Bank of Georgia, Europe, which was so successful that “that many United States residents registered as clients of the bank” (because nothing gives you more confidence than a Santa Claus in an orange satin robe).

While Italian and living in Milan, Vacchi travels around the world to dance on roof tops, DJing, and generally having a good time. He chose Mr. Enjoy as his nickname. After all, as another Italian influencer, who also meddled a bit with music, urged us: “Godiam, la tazza e il cantico, La notte abbella e il riso. »

But Vacchi is not enjoying two of online investing company E*Trade’s commercials, [here is the other one] which were produced in mid-2017, where a middle-aged man, presented as “your boss,” is featured dancing with abandon (with who?)… with scantily dressed women.

Vacchi has just filed suit in the Southern District of New York against E*Trade, claiming “copyright infringement, as well as false endorsement and misappropriation of protectable character, protectable scenes, and image and persona of “the coolest man on Instagram.” Will he be successful? 
Grandpa was a social media influencer 
New York Right of Publicity

New York Civil Rights Law §§ 50 and 51 is the state of New York’s only right to privacy, which is not otherwise recognized by its common law. The statute makes it a misdemeanor to use the name, portrait or picture of a living person for advertising or trade purposes without prior written consent.

The E*Trade commercials are certainly “for advertising or trade purposes.” What is less certain, however, is whether the “name, portrait, or picture” of Vacchi has been used by Defendant.

Protecting the Persona?

In fact, even a simple Google search for “dancing millionaire” inevitably shows Plaintiff in the top results” (Complaint).

Plaintiff claims a use of his image and his persona.

New York courts have recognized that using a "lookalike" of a well-known personality for commercial purposes is a violation of New York Civil Rights Law §§ 50 and 51. In this case, a lookalike of Jacqueline Kennedy Onassis has been featured in a Dior ad. The court noted that “Plaintiff's name appears nowhere in the advertisement. Nevertheless, the picture of a well-known personality, used in an ad and instantly recognizable, will still serve as a badge of approval for that commercial product.” In our case, Vacchi’s name is not used in the commercial either.

Lindsay Lohan was not able to convince the courts last year either that Take-Two Interactive Software, the developer and distributor of the Grand Theft Auto V video game, had used her likeness and persona to create the character Lacey Jonas (see here and here). But the case was about a video game, not an advertisement, and the court in Onassis v. Dior distinguished artistic from commercial endeavors.

In our case, Plaintiff is a middle aged man, with trimmed grey beard and hair, a toned and tattooed body, and a propensity to take pictures of himself while bare chested.  This is his image, his likeness, his resemblance.

Plaintiff claims that Defendant used a “clone of Vacchi, dancing with women on a boat while DJ’ing: conduct that based upon numerous YouTube videos, photographs, and music videos created and published by Vacchi, has become synonymous with the image and persona,” and describes “the E*Trade Character [as] a heavily-tattooed male with bare torso dancing with a beautiful female companion.

Vacchi self-described persona is “the coolest man on Instagram,” and he very well may be if cool is defined by sunsets seen from high rise balconies, partying, the beaches, dancing around rooftop swimming pools, and leopard cushions. No coupon clipping for him.

So Plaintiff’s persona could be: man + middle-aged + toned and tattooed body + glasses + dancing + trim gray beard + exotic locales + women in teeny weeny bathing suits. This could also describe an aged James Bond after one too many stirred Martinis led him to the tattoo parlor, or Queequeg if Moby-Dick had shed some blubber and got a bikini wax.

The E*Trade character is a middle-aged  man, with glasses, bare chested, with tattoos, dancing with young women in bathing suits, on a yacht. He wears suspenders, as does Plaintiff sometimes.

It could be argued, as in the Onassis v. Dior case, that “plaintiff's identity was impermissibly misappropriated for the purposes of trade and advertising, and that it makes no difference if the picture used to establish that identity was genuine or counterfeit.” Plaintiff would still need to prove that Defendant used his image. Or maybe it meant to portray the Most Interesting Man in the World.

Copyright Infringement

Plaintiff also claims that Defendant’s videos are infringing derivative works  and that “E*Trade’s commercial is simply a rip-off of a number of videos created and published by Vacchi over the years.”

Plaintiff regularly posts short videos on his Instagram account, featuring him and other persons in exotic locales. He is seen doing less than mundane activities, such as tattooing a female doll (cringe alert on this one), or pedaling on a stationary bike in his private jet. 

Plaintiff did not obtain a registration for these videos before filing suit, because “Plaintiff is a foreign citizen and did not register all of his videos and photos in the United States.

This is too bad, as the U.S. Supreme Court held last month, in Fourth Estate Public Benefit Corp. v. LLC, that a plaintiff claiming copyright infringement must first register the work with the U.S. copyright Office before filing suit. 

Plaintiff’s Instagram videos are probably not original enough to be protected by copyright anyway. The Copyright Office appears to be less and less inclined these days [see here and here]  to register such works, because they are not original enough to be worthy of copyright protection.

The videos feature cliché images of sunsets on the beach, descending the steps of a private jet, big designer bags, having a manservant in livery, leopard cushions, party, party, party, and young women in bikinis. They look sometimes like a Michael Kors ad. Whether they are to be taken with a grain of salt is irrelevant, as they are unprotectable scènes à faire of a “Let’s live in a Jennifer Lopez video” lifestyle (I love that song).

The case will probably settle (alas, may I add, rather selfishly).

Monday 15 April 2019


The 3rd U.S. Circuit Court of Appeals sitting in Philadelphia must be hoping not to slip up on the appeal being heard in the case between Kangaroo Manufacturing which is now the subject of an injunction issued by a federal trial judge preventing it making a banana costume that seemingly resembled that of costume-maker Rasta Imposta. Kangaroo are arguing that nothing makes the Rasta Imposta costume protectable by copyright as it lacks any distinctive features and resembles - well, a banana.  U.S. District Judge Noel Hillman used terms such as “bananafest” and “bananapalooza” at a hearing, and he then issued what the Times termed “a split decision” in favor of Rasta Imposta on two of the issues and in favor of Kangaroo Manufacturing on one.

Infowars' Alex Jones, who has been sued by Pepe the Frog artist Matt Furie for allegedly infringing Furie’s copyright on the cartoon frog by putting Pepe on a poster that Infowars was selling, has made a number of defences to his actions in a wide-ranging deposition, comparing his use of Pepe the Frog to artist Andy Warhol's paintings of Campbell’s soup can and saying “[Pepe the Frog] is a symbol of free speech” adding .“There’s now a movement to try to then control and own symbols that have entered the public domain and public use….and so now I see it as basically a tombstone of free speech and fair use in the Western world. So I see it for what it is, from the perspective of the corporate fascists.” Much more on Motherboard here

The EU Council has now  approved the European Copyright Directive, the last step in the EU legislative process - it is now up to each EU member state to implement the new copyright laws.  "It was a long road and we would like to thank everyone who contributed to the discussion" said Helen Smith, head of the pan-European independent record label group IMPALA. "As a result, we now have a balanced text that sets a precedent for the rest of the world to follow, by putting citizens and creators at the heart of the reform and introducing clear rules for online platforms".

A video in support of Donald Trump's 2020 re-election campaign has been removed from Twitter . The video uses music from the Warner Bros Batman film 'The Dark Knight Rises' and in a statement Warner Bros. confirmed it was taking action over the video: "The use of Warner Bros.’ score from The Dark Knight Rises in the campaign video was unauthorized," a spokesperson said. "We are working through the appropriate legal channels to have it removed.” The video in Trump's tweet had been replaced by a message that it was no longer available "in response to a report by the copyright owner." 

And finally, Chinese authorities have suspended country's largest stock images provider's website after it was found to have put its copyright mark on the first ever photo taken of a black hole. China Daily reported that Visual China Group (VCG) had published the black hole photo with a watermark to indicate ownership and that a fee was payable for use. The cyberspace affairs authority in Tianjin (North) to suspend its website. The incident led to the Chinese National Copyright Administration to say that it would launch a campaign to regulate the image copyright market, noting that firms should set up mechanisms to uphold copyright as per legal requirements, here that image from  the Event Horizon Telescope was available for use where it was properly attributed, a position commonly taken by the European Southern Observatory and the National Aeronautics and Space Administration (NASA). The black hole measures 40 billion km across - three million times the size of the Earth - and has been described by scientists as "a monster". It is 500 million trillion km away. And we are delighted to say this image is from the Event Horizon Telescope (EHT), a network of eight linked telescopes.

Wednesday 10 April 2019

Are Marvel’s Arguments’ Iron Clad?

The Horizon Comics Productions v. Marvel Entertainment suit (Southern District of New York, 16-cv-2499) is still pending.

What is the case about?

Ben and Ray Lai are two brothers who own Horizon Comics Productions and created the comic book series Radix in 2001. Only a few books were published in 2001 and 2002.

Radix featured characters wearing “highly-detailed, futuristic, armored, and weaponized suits of body armor to fight enemies” (original complaint).

Marvel created the Avengers series, of which Iron Man is one of the superheroes. The character gets his superpowers from a powered armored suit.

Uh-oh, two power suits (not the eighties type with the big shoulder pads, the armored and weaponized type).  
Honk if you remember these
Marvel’s Iron Man character first appeared in 1963, but he did not have armor then. Plaintiffs alleged that he first wore a “spandex-like attire and minimal armor” and then wore a “fully mechanized suit of body armor” in the Marvel movies, and that this change occurred after Plaintiffs had submitted the Radix art to Defendants and were hired by Marvel as freelance artists.

Robert Downey Junior (RDJ) played Iron Man in several of Marvel’s movies. Iron Man 3  is at stake in this case, or rather, the promotional poster of the movie, which shows RDJ crouching in costume, the left knee on the floor, the right leg bended, the left hand on the floor, the right hand closed in a fist.

Plaintiffs claimed that the armored suit worn by Iron Man in the Iron Man and Avengers film was based on a suit worn by the hero of Radix and that the promotional poster copied a particular promotional piece for Radix (the Caliban Drawing).

Marvel had moved to dismiss claiming that elements of Plaintiff’s works which had allegedly been copied were not protectable as a matter of law and were not, in any event, substantially similar to Defendants’ works. In March 2017, Judge Paul Oetken granted the motion as to the armored suit’s claim, but allowed the complaint about the promotional posters to move forward.

Defendant recently filed a memorandum of law in support of its motion for summary judgment.

Parties in a copyright infringement suit sometimes struggle to prove how a particular work has been created. However, it is essential to be able to prove that the allegedly infringing work has been independently created. This is why Marvel’s memorandum of law is particularly interesting to read. 

Opportunity to copy

A plaintiff claiming copyright infringement must show that the defendant copied his work. If there is no direct evidence of actual copying, he must show access and probative similarity.

Marvel claims that that it hadn’t access to the Caliban Drawing. Plaintiffs claim that Ray Lai had provided his business card to several persons which listed a web site address where the Caliban Drawing could be found, and that the drawing was hung on a wall at a comic book convention in 2001.

Marvel denied it had access, as there was no evidence that anyone involved in the creation of the Iron Man 3 poster was at the comic book convention where the drawing was allegedly featured. They further argued that the mere fact that the drawing was allegedly   featured on Plaintiff’s website is not sufficient evidence, as “the existence of the plaintiff’s copyrighted materials on the Internet, even on a public and ‘user-friendly’ site, cannot by itself justify an inference that defendant accessed those materials.” Defendant noted that Plaintiff’s website had ceased to operate in 2003, which made it improbable that anyone involved in the making of the poster, even if they had indeed visited the site, would have saved a copy of the Caliban Drawing found on the site and then used it years later to create the Iron Man 3 promotional poster.

If Plaintiff is not able to prove access, then probative similarities are not sufficient to prove copying. Instead, plaintiff must prove that the two works are “strikingly similar,” which means that “two works are so nearly alike that the only reasonable explanation for such a great degree of similarity is that the latter was copied from the first.

Creative process

It is Marvel’s description of the independent creation of the Iron Man 3 Poster which is particularly interesting to read.

Even if a plaintiff provides evidence supporting a prima facie case of infringement, defendant can still prevail if can prove that he independently created the work.

Disney and Marvel had retained the service of a third party to create the poster. He testified he had never see the Caliban Drawing, but described his creative process.

He reviewed the Iron Man 3 script then developed inspiration boards using images from prior Iron Man movies and comics. He and his team then made black and white sketches, which were used as an inspiration for RDJ during a photo shoot.

Hundreds of photos were taken during the shoot. One of them shows the actor in the pose which was later chosen for the Iron Man 3 promotional poster. RDJ is shown looking down at the black and white sketches while posing.

Defendant was thus able to establish a chain of inspiration: inspiration board drawings of former Iron Man movies and comics, which inspire sketches, which in turn inspire the RDJ pose, which is then replicated in the poster.  Defendants claim this a “straightforward development process.

Defendants further explained that before the poster was finalized, the creative team had provided Marvel with “callout” documents “identifying, by source and serial number, every photographic and artistic element depicted in the Iron Man 3 poster, so that Marvel Studios’ legal team could “clear” any license rights needed for those materials.” Defendants argued that “the photos used for Iron Man’s head, shoulders, arms and fist” were all taken during the RDJ shoot.

Defendant concludes by stating that “[t]he claim that they would copy a drawing made some 10 years earlier by unknown artists, to promote an unheard-of comic book, depicting an anonymous character wearing a generic armored suit in a stock fighting pose is, candidly, ludicrous.” [Ouch]. 

Image of the "power suit" is courtesy of Flickr User (and Thrift Store Extraordinaire) Housing Works Thrift Shops, under a  CC BY-SA 2.0 license. C BY-SA 2.0

Tuesday 2 April 2019


A federal judge in Manhattan has refused to dismiss a lawsuit claiming that Woody Guthrie's classic 1940 folk song "This Land is Your Land" belongs to the public. Guthrie, then 27, wrote "This Land," in reaction to Irving Berlin's 1918 war time song "God Bless America" which he thought glossed over wealth and land inequality in the country. U.S. District Judge Deborah Batts said members of Satorii, a New York band that recorded two versions of "This Land" could pursue federal copyright claims against two publishers who say they control rights to the song - Ludlow Music and The Richmond Organization. Readers will remember that "We Shall Overcome" and "Happy Birthday to You" have already returned to the  public domain. Satorii said the "This Land" melody was "substantially identical" to a Baptist gospel hymn from around the start of the 20th century, known by such titles as "Fire Song." It also said any copyright to "This Land" was forfeited several decades ago. The case is Saint-Amour et al v The Richmond Organization Inc et al, U.S. District Court, Southern District of New York, No. 16-04464.

Ten members of the European Parliament (MEPs) have said they voted against a crucial amendment to the EU's Copyright Directive by accident, and that if they had got their votes right it would have let MEPs take a further vote on the inclusion of Articles 11 and 13, the most controversial parts of the law (and named by the tech sector as the  “link tax” and “upload filter”). That vote was lost by just five votes but official voting records published by the EU show that 13 MEPs have declared they accidentally voted the wrong way on this amendment. According to the record, ten MEPs say they accidentally rejected the amendment when they meant to approve it, two MEPs accidentally approved the amendment, and one MEP says he intended not to vote at all on that matter. If these MEPs had voted as they said they meant to, the amendment would have been approved by a small majority, prompting further votes on whether the law would include Articles 11 and 13 (renamed articles 15 and 17 in the final draft). Whilst no one knows how that might have gone, it makes no difference now of course as the final vote has passed and stands, with a clear majority 348 MEPs voting in favor of the new reforms, and 274 against. YouTube 'creators' and the tech sector are now starting to re-voice concerns, and no doubt will continue lobbying, with one creator saying they will be forced to block content from being seen in Europe, and one of the most vocal activists leading a charge against the Directive, Dr. Grandayy, says it’s time for YouTubers to get serious about copyright activism.

And Poland's right-wing government has hinted that they may not fully implement the European Union's new copyright reform, saying it stifles freedom of speech. Ruling party leader Jaroslaw Kaczynski said Saturday that a copyright directive adopted by EU lawmakers this week threatens freedom. Of course the bloc's nations have two years to incorporate it into their legal systems. Without elaborating, Kaczynski said the Law and Justice party will implement it "in a way that will preserve freedom."

Vodafone in Germany has blocked access to a popular platform where users share links to infringing content after a complaint from music collecting society GEMA, but seemingly without GEMA securing an injunction to mandate the block. the German division of Vodafone has now blocked Boerse telling  Torrentfreak "On the basis of a notification from GEMA, we have set up a DNS blockade for the '' domain. The blockade affects Vodafone GmbH's fixed and mobile network" citing recent precedents in the German courts regarding the responsibilities and liabilities of internet companies saying "GEMA has officially sent us a notification and we have set up the DNS blockade in order to avoid a legal dispute in accordance with the principles established by the Federal Court Of Justice".
adding that whilst it was "critical of these blocking requests" it would nevertheless comply with its legal obligations. The site is still accessible via other ISPs in Germany. 

A fascinating article on Above the LawIn Your Face: How Facial Recognition Databases See Copyright Law But Not Your Privacy - and Tom Kulik, an Intellectual Property & Information Technology Partner at the Dallas based law firm of Scheef & Stone, LLP says "Like many legal issues involving evolving technology, there is more here than meets the eye". Well worth a read! Image by Mike Mackenzie via

And finally, Lexology reports that the latest (and unanimous) US Supreme Court decision in  Rimini Street, Inc. v. Oracle USA, Inc., holds that 17 U.S.C. § 505’s award of “full costs” is limited to the specific categories of costs defined in 28 U.S.C. §§ 1821 and 1920, which exclude expert witness fees, e-discovery expenses and jury consultant fees. “A statute awarding ‘costs’ will not be construed as authorizing an award of litigation expenses beyond the six categories listed in §§ 1821 and 1920, absent an explicit statutory instruction to that effect.”[2] This decision effectively limits the costs recoverable by a successful litigant as a matter of course in copyright litigation and in “exceptional” trademark and patent cases. More here

Monday 1 April 2019

Warner Music signs distribution deal with AI generated music app Endel

By Hayleigh Bosher and first published on the IPKat 
AI and copyright is one of the hottest topics of the time in IP at the moment. This is hardlysurprising since it raises so many interesting questions about creativity and 
ownership. As Prof. Bernt Hugenholtz argued at the March Alicante Congress 
on AI and IP [reported here] that copyright protection – if any - for AI-generated 
works needs to be balanced against the overarching goals that such 
protection aims to achieve.

However, this has not stopped Warner Music signing a bundle of code to 
create 20 new albums this year! Warner Music is an American multinational 
entertainment and record label, the third largest in the global music industry, 
with artists from Ed Sheeran, Coldplay, Madonna to Led Zeppelin. 
The latest to be "signed" by the multi-billion dollar company, is an algorithm. 

Endel, developed by a start-up based in Berlin, creates tailor-made custom 
sound frequencies based on personal user inputs such as weather, time of day, 
location, and biometric details such as heart rate. 

Evidently, Endel is not signatory 
to the contract with Warner, as such. 
The company has agreed a 50/50 
distribution deal, covering a total of 
20 albums that will be released 
throughout 2019 with Warner Music. 
(Cat SamplingImage: Andy Miccone

This is not the first time AI-generated 
music has created distribution deals. 
Aiva Music is a composition 
algorithm that famously became the 
first AI to register with a collecting 
society (SACEM) and 
recently partnered with Believe Distribution (owned by Song Records) to release 
its latest album. Sony also has its  Flow Machines project, which involves 
a algorithmic composition tool that is formally credited as a songwriter, 
producer, instrumentalist and/or vocalist in all of the tracks’ liner notes for its 
debut album 'Hello World'. However, the creators also include a list of 
human contributors who provided  songwriting, instrumentation, 
mixing and mastering support.

The Endel-Warner deal is a step forward in that there are no human collaborators
 in the generation of the new sounds. Nevertheless, a human - aside from 
obviously creating the AI - also had to, input sounds and data into Endel. 
Interestingly Stavisky describes the work as being "generated based 
on different combinations of inputs" rather than created. 

Some of these inputs, or instrumental stems, were created by Endel's 
co-founder and sound designer Dmitry Evgrafov. Each sound is then 
allocated metadata according to certain parameters which the app 
can read and use to generate a soundscape. So, whilst it might seem that 
the sounds are created with a click of a button, Stavisky explained that it 
took "1.5 years of work developing our algorithm and creating and 
tagging the stems.” 

In terms of copyright ownership, on a theoretical level some argue that 
the creator of the AI might be the owners of the outputs, others suggest that
 it could be the AI system itself. Other potential owners could be the creator 
of the "inputs" on the basis that this is the personality being expressed. 
Or, perhaps, the investor of the AI project on an economic justification 
of remuneration as encouragement.

Endel: "Personalized sounds to help you focus and relax"
In any event, for Warner and Endel, 
it was practical issue. Stavitsky said 
that  when Warner asked for the 
songwriter information in order to 
register the  copyright of the music, 
they decided to list the co-founders 
and  software engineers, saying 
“I am now credited as a songwriter 
even though I have no idea 
how to write a song."

So, whilst we are still discussing what we think the outcome should be in theory, 
in practice some are marching ahead on the basis that the copyright holders 
are the company founders and the AI engineers. At this stage, given the 
extensive skill, labour and effort that went into the development of Endel
 it might not be so controversial. But what happens if [when] it is a self-learning 
machine that doesn't require as much human effort?

So many other questions come to mind - is Endel sampling? Do they need 
a licence? Who would be liable if Endel created an infringing piece of music? 
All of the registered copyright holders? The specific engineer who input a 
copyright protected work? But it is only if Endel uses a substantial part of 
that work in a new song that it would be infringing. Are the engineers able 
to programme the system not to take a substantial part? As we well know,
 its not about quantity in which case that might be viable, but since it is 
something decided on "quality", on a case by case basis, it's not so straight 

The future for copyright and AI remains to be seen, but it appears 
that the time is ripe to be discussing such issues!