Tuesday 29 October 2019


The U.S. House of Representatives HAS voted 410-6 in favor of the Copyright Alternative in Small-Claims Enforcement Act of 2019, or CASE Act.  Seeking to address the high cost of copyright litigation, if passed into law, the CASE Act would create a voluntary 'small claims court'  within the U.S. Copyright Office, called the Copyright Claims Board.  Lawsuits filed under the CASE Act would allow recovery up to $30,000, with a cap of $15,000 for statutory damages per work infringed. Whilst widely supported by content creators and copyright owners,  the CASE Act is not without criticism: the American Civil Liberties Union, argues the CASE Act lacks procedural safeguards and could be abused by “copyright trolls” or by those seeking to silence free speech on the internet - and expose millions of Americans to liability who unknowingly violate copyright law for actions seemingly as petty as sharing photos online.  “There is no gun that is being held to anyone’s head, because the small claims court like tribunal is voluntary in nature,” Rep Hakeem Jeffries, the bill's sponsor, told The Verge. “Any argument made to the contrary, represents a deliberate attempt to misrepresent what’s at stake as part of the effort to do away with the content copyright laws that have been part of the fabric of our democracy since the founding of the Republic and in fact the Constitution.” adding “The internet doesn’t change the Constitution,” The CASE Act now heads to the Senate for a full vote.  

The CoStar Group has settled copyright infringement against rival Xceligent with the commercial real estate data conglomerate being paid  $10.75 million by its competitor’s insurers, although according to court filings that’s a fraction of the $450 million CoStar initially sought. CoStar and Xceligent's court-appointed bankruptcy trustee filed a proposed judgment in Delaware Bankruptcy Court, finding Xceligent liable for $500M in damages for stealing tens of thousands of images from CoStar's databases. Xceligent, which filed for Chapter 7 bankruptcy liquidation in December 2017, doesn't have the assets to fulfill the entire $500M ruling. BisNow says that the parties reached a settlement through which Xceligent's insurers will pay CoStar $10.75M. The bankruptcy settlement and judgment in the copyright infringement case are both subject to court approval.

The settlement of a case between photographer Robert Barbera and CBS over the 'use' of Barbera's photo of Justin Beiber  has left open the question of whether the unauthorised embedding of a social media posts that contain copyright-protected photos amounts to copyright infringement - leaving some of the issues in the Goldman v. Breitbart lawsuit unanswered: That case concerned embedded tweets that featured a photo of football star Tom Brady - but the case was voluntarily dismissed in May.   In a highly-contested decision in early 2018, Judge Katherine Forrest of the U.S. District Court for the Southern District of New York determined that a handful of media companies, including Vox, Time, Yahoo, and Breitbart, among others, had infringed a copyright-protected image that Eric Goldman took of Tom Brady by embedding third-party tweets that contained the image into articles on their websites.  Finding for Goldman, Judge Forrest’s February decision was a stark contrast to the general agreement among U.S. courts that when a party embeds a photo into an article, and thus, does not actually create a copy of the image or store it on its server, there is no new “display” of the photo for copyright purposes, and as a result, no copyright infringement - although case such as Perfect 10, Inc. v. Amazon.com, Inc in 2007 are themselves not without critics who disagreed with the appellate court ruling that embedding does not require that an image be copied or stored, and thus, does not run afoul of copyright law. More on The Fashion Law website here.  Robert Barbera's Image from complaint. 

Those Turtles and the issue of pre-1972 copyrights in sound recordings in the USA keep going on and on - with the Ninth Circuit appeals court now asking the lower court in California to consider what the Music Modernization Act (MMA) means for any ongoing disputes involving unpaid digital royalties on pre-1972 recordings. CMU Daily reports that the MMA reformed US copyright law in a number of ways and "Perhaps the biggest reforms related to the way the mechanical rights in songs are licensed Stateside. In theory those reforms were meant to bring to an end the long line of lawsuits being pursued against the on-demand streaming services over unpaid mechanical royalties .... Another part of the MMA related to the use of recordings - rather than songs - by online and satellite radio services, including personalised radio platforms like Pandora. Under US-wide federal copyright law AM/FM radio stations aren't obliged to pay any royalties to artists and labels for the recordings they play, but satellite and online stations are. However, recordings released before 1972 are protected by state-level rather than federal copyright law, so digital services argued that that royalty obligation didn't apply to pre-1972 tracks." Probably one of the best known cases on the matter was litigation pursued in the Californian courts against both Sirius and Pandora by Flo & Eddie, former members of 1960s band The Turtles and whilst a settlement was reached in California, and new law removes any debate over the ongoing royalty obligations of services like Pandora moving forward, the question remained over what royalties should have been paid in the past. Now the Ninth Circuit has said that the question of assessing whether Pandora still faces liabilities for past non-payment of royalties in the context of the MMA is matter for the district court that first considered the original lawsuit. The appeals court said in a ruling last week: "Whether the MMA applies to and pre-empts Flo & Eddie's claims, as Flo & Eddie note, cannot be answered on the record before us. The resolution of this issue depends on various unanswered factual questions".

Global record industry trade groups IFPI and WIN have announced a new initiative designed to simplify the way record labels and music distributors provide key data about the sound recordings they own and represent - and the UK record industry's collection society, PPL, will lead on the initiative. With each country in what is now a global market having its own collecting society, with  their own database(s), this presents a number of logistical challenges for the recorded music industry (and indeed the music publishing sector too) not least as new platfors and new technologies develop. The new Repertoire Data Exchange project, or RDx, aims to make it easier for record labels and other owners of the copyright in sound recordings to log their tracks with all the relevant society databases, ensuring databases are updated promptly and efficiently. IFPI and WIN explained: "Record companies have historically used a variety of data delivery processes to supply content to individual [societies] around the world, presenting challenges in the supply of recording data. RDx will offer recording right holders of all sizes, from all countries, a single registration point to supply their repertoire data in a standardised format that can be quickly and easily accessed by all [societies], leading to improvements in data quality" and IFPI boss Frances Moore said: "Record companies continue to invest in and enhance the accuracy and management of music data in many different areas of the industry. RDx is a key example of an initiative that will benefit all parties involved. It will improve operational efficiencies and lower costs for right holders whilst allowing [societies] to retrieve authoritative repertoire data from a single point - enabling more accurate and timely distribution of revenues".

Taylor Swift by George Chin
Taylor Swift’s 2014 hit “Shake It Off” and th controversy over the phrases “playas gonna play” and “haters gonna hate”  s once again at the centre of a legal battle as a three-judge panel from the Ninth Circuit Court of Appeals reinstated the 2017 a previously dismissed copyright lawsuit from songwriters Sean Hall and Nathan Butler, who allege the single lifts lyrics from their 2001 composition “Playas Gon’ Play.”. Hall and Butler say Swift's famous lyric "Cos the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate" was a copy of the line "The playas gon play/Them haters gonna hate" from their 2001 track. In February 2018. Judge Michael Fitzgerald in the District Court concluded “By 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters … The concept of actors acting in accordance with their essential nature is not at all creative; it is banal.” But a 1903 ruling from Supreme Court Justice Oliver Wendell Holmes might give some hope to Hall and Butler:  “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits” Holmes wrote . “At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.” In their ruling the appellate court said “originality, as we have long recognized, is normally a question of fact … Justice Holmes’ century-old warning about judges appointing themselves the sole arbiter of originality remains valid. By concluding that: ‘for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issues here,’ the District Court constituted itself as the final judge of the worth of an expressive work. Because the absence of originality is not established either on the face of the complaint or through the judicially noticed matters, we reverse the District Court’s dismissal” and the case goes back to the District Court 

Friday 25 October 2019

[Guest post] When creative collaboration goes wrong

The 1709 Blog is happy to host the following contribution by Hugo Cox (Hamlins), concerning the recent joint authorship decision of the Court of Appeal of England and Wales in Kogan v Martin [see also IPKat here].

Here's what Hugo writes:

When creative collaboration goes wrong

One of the most distinctively European contributions of European law to UK copyright law has been its test for originality (being one of the requirements for copyright protection). Previously UK courts had looked for the prosaic inputs of labour, skill or judgment. Now they ask whether the work is the author’s ‘intellectual creation’, looking to see if it reflects the author’s personality, expressing free and creative choices – there must be a certain … je ne sais quoi, you might say.

There is some doubt as to whether this new test has made much difference in deciding which works do or do not acquire copyright protection. However, in the law of joint authorship, a change seems unmistakable. In the past, English courts have required a contributor to input significant skill and labour to earn the title and rights of a joint author. So, for example, an attractive 16-bar saxophone solo did not meet the threshold. Now the Court of Appeal has affirmed the ‘relatively undemanding’ requirement is, once again, to contribute elements which express the contributor’s own intellectual creation. We know from the CJEU’s Infopaq judgment that this can be achieved in just eleven words.

Kogan v Martin

This conclusion of the Court of Appeal was arrived at in its judgment of 9 October in Kogan v Martin, a case concerning the screenplay for Florence Foster Jenkins, a film which starred Meryl Streep and Hugh Grant. The question was whether it had been written solely by Nicholas Martin, as had been decided in the Intellectual Property Enterprise Court in 2017, or whether Julia Kogan was joint author. The Court of Appeal was not content with the reasoning of the lower court and ordered a retrial.

It seemed Martin had held the pen and Kogan had contributed only to the first drafts. However, the Court emphasized a joint author can be someone who only offers suggestions to the writer  – she does not necessarily have to put pen to paper or have the last word on what goes into the script. Contributions to plot ideas or inventing characters are on an equal footing with contributions to the execution of a work. And if a work has been created through a series of drafts, inputs into the earlier drafts count.

Complex relationships, complex law

The Court set exacting standards for the assessment of the complex evidence of creative collaboration. The fact witnesses’ recollections may be imperfect does not absolve the judge of his duty to take those recollections into account alongside any documentary evidence and to come to a conclusion about the nature of the interaction between the parties and their contributions. Were Julia Kogan’s contributions akin to those of a researcher, or was there a joint creative process? The assessment is highly fact-specific and difficult, but must be undertaken.

Though it seems the quantitative threshold for joint authorship has been lowered, the overall assessment of the evidence has become ever more complex, subtle and exacting. And the legal concepts are slippery. Joint authors must be engaging in a ‘common design’ – according to the Court of Appeal this is not something Ezra Pound was doing when he made extensive revisions to Eliot’s The Waste Land. The Court explained, perhaps less than helpfully: ‘he was acting as a friend and critic and not a collaborator in a common design’. And appealing though the European ‘intellectual creation’ test is, can you necessarily spot someone’s personality in their output and when exactly are choices free and creative?

We live in a time when creative collaboration is widespread – from pop bands to sitcom writers’ rooms to the interactive world of the internet. It’s a complex picture, and one which the law should try to avoid complicating further.

Tuesday 22 October 2019

Leonardo's Vitruvian Man will be lent to France, Italian court rules

Venetian administrative court recently rejected the appeal filed by Italia Nostra, an Italian cultural heritage conservation group, opposing the loan of Leonardo da Vinci's 'Vitruvian Man' to Louvre museum. The loan was part of a bilateral agreement signed in September by Italy and France according to which Italy should lend seven Leonardo's works to France and, in return, the latter will send some Raphael's paintings next year to be exhibited at Scuderie del Quirinale in Rome to commemorate 500 years since Raphael's death. 

Leonardo da Vinci's 'Vitruvian Man', 1492
Italia Nostra argued in its appeal that Leonardo's 'Vitruvian Man' was too fragile to travel as it would risk being damaged by lighting if displayed during the Louvre exhibition; indeed, the work shall be constantly protected from direct light. The plaintiff alleged also that the loan would then infringe art. 66 of Italian Code of the Cultural and Landscape Heritage prohibiting temporary exit from national territory of cultural property on the occasion of art events if the artwork is susceptible to damage during transportation or because of unfavorable environmental conditions.  

As a precautionary measure, the Court suspended the loan and even the bilateral agreement signed between Italy and France.

On October 16, the Court overturned its previous decision rejecting the appeal, observing that other works among the Venice Galleries' masterpieces were already lent in the past. Moreover, the two Italian most important restoration institutes confirmed that the drawing could be exhibited for a limited period of time if under the correct lighting.

The 'Vitruvian Man' will then be displayed during the exhibition starting at Louvre on October 24, celebrating the 500th anniversary of Leonardo's death. Italian media reported also that this masterpiece will be insured for little less than 1 billion euro.  The drawing, which shall be shown for a few weeks every six years, will not be exhibited for a long time after being displayed twice this year: one time in Venice and now at Louvre. 

While this dispute seems solved (unless Italia Nostra decides to appeal), one member of the Uffizi Galleries' scientific committee, Tomaso Montanari, have recently claimed that two Leonardo's paintings - "Study of the Landscape" and "The Adoration of the Magi" - were exported for the same exhibition despite being on Uffizi's list of unmovable works. 

Italia Nostra's appeal highlighted the problems concerning the loan of masterpieces, besides two different visions of cultural heritage: as a national treasure or as a part of a world cultural heritage to share.

Wednesday 16 October 2019


Reuters report that France is pushing for the creation of a European-wide regulator of digital platforms including Google and YouTube, to sanction any possible abuse of power. A spokesperson cited the dispute between Google and European publishers saying “A big American company, Google namely, has announced it would not comply with an EU copyright directive,” the official told reporters. “France and Germany share the view that... we have to put an end to this illegal behavior.”

And more on Google: In a U.S. Supreme Court filing, the Justice Department has urged the court  to deny Google’s petition for review of a pair of rulings that put the company on the line for billions of dollars in damages for infringing Oracle’s copyrights in the Java computer code. Reuters say that Google’s lawyers at Goldstein & Russell have argued that the case presents important questions about the copyrightability of certain kinds of computer code and fair use of that code. The Justice Department, however, said in Friday’s brief that the copyrightability question has already been resolved definitively - and that the Google case isn’t a good vehicle for the Supreme Court’s consideration of fair use.

The Verge reports that alleged copyright troll Christopher Brady will no longer be able to issue DMCA takedowns to YouTubers. According to a lawsuit settlement, an agreement has been reached and  Brady is banned from “submitting any notices of alleged copyright infringement to YouTube that misrepresent that material hosted on the YouTube service is infringing copyrights held or claimed to be held by Brady or anyone Brady claims to represent.” Brady agreed to pay $25,000 in damages as part of the settlement. He is also prohibited from “misrepresenting or masking their identities” when using Google products, including YouTube.

Queen have joined the long list of bands who have taken action against President Trump for using their music without permission. A campaign video featuring 'We Will Rock You' has been removed from his Twitter following a copyright complaint from the band’s publisher. According to Buzzfeed, within hours of the video going live Queen had "already entered into a process to call for non use of Queen song copyrights by the Trump campaign”. After being viewed more than 1.7 million times, the video was disabled by Twitter and the post now reads: "This media has been disabled in response to a report by copyright owner.” They join REM, Prince, Neil Young, Rihanna, Nickleback and Adele (amongst others) who have objected to Trump using their music. More details on Nickleback's recent takedown can be found here. A Twitter spokesperson told CNN that the company responds to copyright complaints sent to them by a copyright owner or their authorised representatives.

Why bring a Trade Mark claim in place of a copyright claim? Well it seems that the super secret street artist Banksy might be doing that to avoid revealing his true identity. Above the Laws's take on this is "Banksy’s Fake Store Is An Attempt To Abuse Trademark Law To Avoid Copyright Law" but it's an interesting story in Banksy's attempt to stop a small greeting from selling “fake Banksy merchandise.” Full Colour Black "run a small business that does photography and sells cards involving public graffiti". Above the Law say this "But… that’s all about copyright. In reading the news coverage of all of this, I was stumped as to why were were discussing trademark at all — until I realized something kind of important. Banksy is using trademark because Banksy can’t use copyright without revealing who Banksy is". And Full Colour Black’s lawyer, Aaron Wood, explained “We are contesting the validity of one of his [Banksy's representing company Pest Control Office Limited] EU trademarks on the basis that he has freely permitted it to be reproduced such that it no longer functions as a trademark (if it ever did), on the basis that he never intended to use it as a trademark and that he is trying to register for collateral purposes (ie, to avoid evidential issues with copyright and to avoid having to file a ‘statement of use’ in the US).”

US comedian Jerry Seinfeld has defeated a lawsuit which alleged he had stolen the idea for a TV series. But the case was decided on basis that the statute of limitations must bar the claim - and not on any infringement or otherwise. Christian Charles, a former colleague claimed he had originally pitched the idea for "Comedians in Cars Getting Coffee" to Seinfeld in 2002 - a decade before it debuted. Manhattan District judge Alison Nathan said Charles had taken too long to sue, The statute of limitations appies after three years and Charles had waited for six years to file his lawsuit after Seinfeld rejected his copyright claim in 2012, the year the first series of the show aired.

Current chair of the House Judiciary Committee, Jerrold Nadler, has aired his thoughts on what might be the next challenges for legislating for music copyright in the USA. He 
joined National Music Publishers' Association president and CEO David Israelite for NYU Steinhardt's inaugural Ralph S. Peer Lecture, named after the music visionary who founded Peermusic in the 1920s. Prioritising the unity that led to the unanimous passage of the Music Modernization Act, Nadler opined "If you want real legislation, the different segments of the industry have to get their act together and speak with one voice," and admitting that most members of Congress aren't well-versed in music industry particulars. "Once they did that, we were able to pass legislation unanimously." Nadler then went to on talk about the fact that in the US there is no performing right for recorded music terrestrial AM/FM radio play - an almost unique position in the World adding "As terrestrial radio becomes relatively less important and streaming becomes more, the question is the extent to which broadcasters will see their interests as less opposed to performance rights. At some point, I do think we will get some [agreement], because the National Association of Broadcasters (NAB) and their people will see that their interests are less adversely affected than previously.

Friday 4 October 2019

CREATe Symposium 2019

CREATe, the UK Copyright & Creative Economy Centre based at the University of Glasgow, recently has started work on a number of ambitious projects that will occupy the team for the next five years.

CREATEe have announced a Symposium with series of events to support this. The events are free, They include a BLACA lecture by CREATe’s Elena Cooper on Portrait of Lady Eden by Whistler (subject of a famous Paris court case in 1897, and held in the University of Glasgow’s Hunterian collection); and a policy keynote by Catherine Stihler, CEO of the Open Knowledge Foundation (and until 2019 a Member of the European Parliament for 20 years). Come and join us in shaping the next phase of CREATe’s research programme! The link below takes you to the full programme but here is some more detail on the two featured events:

Glasgow - Tuesday 8 October 2019
17:15 – 18:45
Location: Hunterian Art Gallery

British Literary & Artistic Copyright Association and CREATe lecture – ‘Whistler, Faed and Painting Copyright in the Nineteenth Century’

Speaker: Dr Elena Cooper (CREATe)

Welcome by Prof. Jane Mair (Head of School of Law, University of Glasgow) and Prof. Alison Firth (BLACA)

Until recently, copyright history has overwhelmingly concerned literary copyright protecting books. Drawing on her recent monograph, Art and Modern Copyright: The Contested Image (CUP, 2018), the first in-depth and longitudinal account of copyright as it applies to the visual arts, Dr Cooper will explore a number of ways in which nineteenth century copyright applying to painting was understood to be different. In doing so, and to celebrate the fact that this is the first BLACA event in Scotland for some years, Dr Cooper will connect UK copyright history to two paintings with links to Scotland: Brown and Gold: Portrait of Lady Eden by James McNeil Whistler (1834-1903) and Home and the Homeless by Thomas Faed (1826-1900).

We are delighted to announce that the first picture – Portrait of Lady Eden by Whistler (the subject of Eden v Whistler, Cour d’appel de Paris, 1897) – will be brought out of store especially for this talk.

Glasgow - Wednesday 9th October 2019
17:00 – 19:00
Location: Humanities Lecture Theatre, Main Building

Public lecture – Catherine Stihler: Reflections on the Making of EU Copyright Law

The first CREATe public lecture of 2019/2020 will be given by Catherine Stihler, CEO of the Open Knowledge Foundation. She was a Member of the European Parliament from 1999 to 2019. As an MEP, her roles included Vice-Chair of the Internal Market Committee, and Rapporteur for Article 13 of the Copyright in the Digital Single Market (DSM) Directive (now Article 17).

Chair: Prof. Martin Kretschmer (CREATe)

Academic responses: Prof. Giorgio Fazio (Newcastle University, Professor of Economics, PEC Management Board Member), Assoc. Prof. Rebecca Giblin (Monash University; head designate, Intellectual Property Research Institute of Australia IPRIA, University of Melbourne)

MORE INFORMATION HERE https://www.create.ac.uk/create-symposium-2019/