Saturday 14 September 2019


The makers of a 'Grease' spoof have gone to the courts in the US seeking confirmation that their show is covered by the doctrine of "fair use" in retaliation to a 'cease and desist' letter from the publishers of the original musical. Grease, made world famous by the 1978 romantic comedy movie starring John Travolta and Olivia Newton-John is based on the 1971 musical of the same name by Jim Jacobs and Warren Casey. Theatre publisher Samuel French, now owned by Concord, represents the rights in the original musical.  According to Sketchworks which created the spoof 'Vape: The Musical'  the new production "uses millennial slang, popular culture, a modern lens, and exaggeration to comment upon the plot, structure, issues and themes of 'Grease' and to criticise its misogynistic and sexist elements". But Sketchworks say their argument that the play was a parody of Grease failed with Concord's lawyers and indeed the theatre that was due to host the spoof was putt off by the cease and desist letter. Sketchworks now wants "a declaratory judgment of fair use so that it may perform and otherwise exploit 'Vape' without further delay".
Buste de femme (Dora Maar) by Pablo Picasso

And the San Fransisco Chronicle reports that the San Francisco art editor who reprinted and sold copyrighted photos of paintings by Pablo Picasso as part of a reference book did have the right to do so under U.S. law - and that means he does not have to pay damages of $2.68 million ordered by a French court. In 2012 the court in Paris ruled that Alan Wofsy, had violated a previous order against making any commercial use of the photos, and ordered him to pay damages to the copyright-holder. Nearly 16,000 photos of Picasso’s works, taken from 1932 to 1970, were published in a 22-volume catalog after the artist’s death in 1973. In 1996, Yves de Fontbrune, a Frenchman who had purchased the publisher’s stock and obtained the copyright, sued Wofsy in France for reproducing some of the photos in “The Picasso Project,” a publication he offered for sale at a Paris book fair. Now U.S. District Judge Edward Davila sitting in San Jose has ruled the order is not enforceable in a U.S. court because federal law allows publishers to use copyrighted works for different purposes under the doctrine known as “fair use.” Wofsy’s book used less than 10% of the pictures in a photographic material available in a catalogue of Picasso’s paintings, which was intended for a different market and the court found that Wofsy's work did not compete with the catalogue, saying said fair use applies as the new book as the doctrine promotes “criticism, teaching, scholarship and research” by allowing copyrighted works to reach wider audiences with Wofsy's legal team saying said the judge recognised that “what he was doing, generating a reference work for libraries, academic institutions, auction houses and art collectors, is different from trying to compete” with the catalog of copyrighted photos.

Fitness firm Peloton that was recently called out for using unlicensed music and sound recordings in its popular (and profitable) exercise videos has admitted that "the challenges and complexities of music licensing are a key risk to its business". Peleton is facing a lawsuit  from a number of music publishers which alleges that Peleton's fitness videos contain unlicensed songs. Peloton countersued in April, mainly citing competition law arguments. The company is now heading for IPO and the pre-IPO filing states: "Given the high level of content concentration in the music industry, the market power of a few licensors, and the lack of transparent ownership information for compositions, we may be unable to license a large amount of music or the music of certain popular artists, and our business, financial condition, and operating results could be materially harmed" adding that despite "expending significant resources" on music licensing, the complexities of music rights ownership and song licensing meant that it could never be absolutely certain it wasn't "infringing or violating any third-party intellectual property rights" with the music already featuring in videos on its platform. At the time of the March lawsuit against Peleton  David Israelite, president and CEO of the National Music Publishers’ Association said “It is frankly unimaginable that a company of this size and sophistication would think it could exploit music in this way without the proper licenses for this long, and we look forward to getting music creators what they deserve.” The claim now stands at $300 million. Image (c) 2018 Ben Challis. 

Pitchfork reports that an  appellate court has ruled that iconic film composer Ennio Morricone can reclaim the rights to his film scores. Morricone sued Bixio Music Group in 2016 in an attempt to regain the copyrights to six of his film scores from the late ’70s and early ’80s arguing that his contract with Bixio expired in 2012 using the provisions of the US copyright law that  lets authors terminate a trasfer of rights  35 years after a work’s initial publication. The composer reportedly served Bixio a termination notice in 2012, but the company didn’t give their claim. In fact the composer lost at first instance in October 2017 when a New York federal court  determined that Morricone’s works should be considered “works for hire” and  that would block the composer’s termination rights. The U.S. Court of Appeals for the 2nd Circuit reversed that decision, saying the scores shouldn’t be considered “works for hire” in either U.S. or Italian law.

And finally, the three major recorded music labels, Universal, Sony, and Warner have issued legal proceedings against a US  internet service provider to be found liable for facilitating its customers’ copyright infringement. In their complaint, the major labels allege RCN Telecom has been aware for years of rampant copyright infringement by its subscribers, thousands of whom they assert include repeat offenders (UMG Recordings, Inc., et al. v. RCN Telecom Servs., LLC et al., 19-cv-17272 (D.N.J.))JDSupra reports that the federal suit contends RCN has received more than 5 million infringement notices, but turned a blind eye to music piracy by continuing to provide high speed internet to these users. The major labels claim RCN’s inaction facilitated copyright infringement and caused RCN to become a “haven for infringement.” 

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