The CopyKat

The YouTube channel of the state-run Vietnam Television (VTV) has been suspended with the national broadcaster later admitting that the termination was due to copyright infringement regarding its content. The channel, titled VTV - Đài Truyền hình Việt Nam, remained inaccessible, with a message saying it has been terminated because YouTube had “received multiple third-party claims of copyright infringement regarding material the user posted.” More here. However it should be noted that YouTube has set up a new team dedicated to improving the quality of policy enforcement and subsequent erroneous takedowns, responding to community criticism.

Indeed last month Google reported that it had received more than 75 million requests to remove from search results URLs that point to infringing content. That's more than double the number of requests it received in the same period last year, or around 34 million, according to the search giant's updated transparency report.

Controversial 'appropriation artist' Richard Prince has responded to a recently-filed copyright infringement lawsuit, claiming he should be shielded from infringement charges because his use of others’ copyright-protected images amounts to fair use. Prince has recently released a new series, entitled, New Portraits, which consists of blown-up photos from several Instagram accounts, including those of Pamela Anderson, Kate Moss, and Cara Stricker. Prince has added comments under the photos. For example, under one photo, Prince adds, “No Cure, No Pay” with an emoji. The case was brought by Los Angeles-based photographer Donald Graham against Prince, the Gagosian Gallery and Larry Gagosian, alleging that the defendants infringed the federally registered copyright in his photo, Rastafarian Smoking a Joint. Prince has asked the Southern District of New York court to dismiss the case as  attempt to ‘essentially re-litigate’ his controversial fair use victory against another photographer Patrick Cariou.

More than £200,000 has been spent by the Welsh government defending claims for copyright infringement over its use of photographs of Dylan Thomas, figures obtained by BBC Wales have shown. Over the last 18 months, £205,417 was spent defending claims brought by Pablo Star Media Ltd. The claims relate to two 1930s images of Thomas and his wife Caitlin. The Welsh government said it was seeking to recoup the costs. A judge in Dublin threw out one of the claims last month, but Pablo Star Media - which claims it owns the copyright - has launched an appeal.

The Hong Kong copyright amendment bill has failed to pass before the government-imposed deadline. The government plans to reshuffle the items on the agenda, meaning that the bill will not be discussed again in this legislature’s term. “We have decided to change the order of the bills to be discussed and move the copyright bill to the end of the agenda,” said the Secretary for Commerce and Economic Development Gregory So Kam-leung at a press conference.

The U.S. Supreme Court is staying out of a copyright dispute involving a Mark Towle, the California man who produced $90,000 replicas of the Batmobile for car-collecting fans of the caped crusader. SCOTUS has let stand the 9th Circuit Court of Appeals ruling that said the Batmobile's bat-like appearance and high-tech gadgets make it a character that can't be duplicated without permission from DC Comics, the copyright holder.

There's an interesting article from Tucker Arensberg on the JDSupra website that looks at the recent case, Dryer v. Nat’l Football League, No. 14-3428, 2016 WL 761178 (8th Cir. Feb. 26, 2016) - where former National Football League players sued the NFL over the use of their name, image, voice, and likeness in films and promotional videos released by NFL Films. The Players did not dispute the NFL’s right to record their performance in live sporting events, or the NFL’s valid copyright in the footage.  Rather, the Players challenged the NFL’s right to further use this footage by incorporating it into other films and promotional videos. The question before the Court was whether or not the district court erred in finding that the Copyright Act preempts the Players right-of-publicity claims.  The appellate court said no error - the Copyright Act prevails.

And finally - this one could be fun: Author Erick DeBanff, a self help guru who promotes living your life "to the max", has filed a lawsuit is against Google for copyright infringement, because it appears that Google (as TechDirt puts it) used a 'kind of trite message' in a commercial about making every moment matter - in the same way that Debanff subtitled his book. DeBanff's book is called "Vie Max" which also seems to be the name of the movement/fad/concept/something that he's selling. But the subtitle is "How to live the next 2 billion heartbeats of your life to the max." The claim says the wording in Google's ad "are essentially a direct copy of the words and philosophy in Mr. DeBanff's book and is a violation of the U.S. Copyright Act.". We shall see!

Farewell Sir George Martin. A wonderful and inspiring musician and producer - and a true gentleman.

The CopyKat - putting you in the picture?

Debate on Hong Kong's contentious copyright amendment bill was cut short in the Legislative Council not because of protests or opposition  – but because not enough members showed up. The premature adjournment came a day after the commerce minister said he was optimistic that there would be enough time for discussion, despite the nearing Lunar New Year holiday and sessions for scrutinising the chief executive’s policy address and the financial secretary’s budget speech. All but one Pan-democrats were absent when the last quorum bell rang on Friday. House committee chairman Andrew Leung Kwan-yuen, who chaired the meeting in the absence of the ill president Jasper Tsang Yok-sing, said he regretted the adjournment. More on the SCMP here.

The BBC tell us that a breach of copyright claim against the Welsh government over photographs used of Dylan Thomas in a tourism drive has been thrown out by a court in Ireland. Visit Wales used photos taken in the 1930s to help promote the 100th anniversary of the poet's birth. But the judge said that if the case was to proceed, Pablo Star Ltd, which owns the copyright. would have to bring the action in a court in Wales or England. Interstingly The Welsh government claimed it has sovereign immunity. But there was worse yet to come for a Mr Haydn Price, who owns Pablo Star Limited. The BBC again tell us that Mr Price has just lost a libel action against 93 year old Gwen Watkins, whose husband Vernon took the Dylan Thomas photos. It seems Mr Price persuaded Mrs Watkins to sell him the copyright in several of the photos for the princely sum of £1,000. The Judge in the libel case, Judge Raymond Groarke, the told Dublin's Circuit Court that he was dismissing the claim as there was no evidence that a latter from Mrs Watkins to Mr Price saying he was a 'bad man' had ever been published: The BBC report that Judge Groarke added "I am not going to go so far as to say Mr Price took advantage of Mrs Watkins but he certainly should have been a lot more careful with the way he dealt with an elderly person."  Mr Price reportedly has a “zero tolerance” approach to copyright infringement and has had some success in other actions. In the current case against the Welsh Government, it was reported that Mr Price was claiming €3,000 for every use of the photos.

Mark Towle,who made replica Batmobiles until being enjoined, has petitioned the US Supreme Court to review his dispute with  DC Comics. He argues that the Batmobile doesn't deserve copyright protection as its a 'useful article'. In february 2013 the District Court held that the “The ‘functional elements’ – e.g., the fictional torpedo launchers, the Bat-scope, and anti-fire systems – are only ‘functional’ to the extent that they helped Batman fight crime in the fictional Batman television series and movies. Thus, the Batmobile’s usefulness is a construct.”  Last September, the 9th Circuit Court of Appeals agreed. Towle had argued that the replicas were fully functioning automobile. In her opinion, 9th Circuit judge Sandra Ikuta disagreed saying the car also has "character" with "physical as well as conceptual qualities," and "sufficiently delineated" to be recognizable whenever and wherever it appears. More on the Hollywood Reporter here. The CopyKat doubts the SCOTUS will take on the case. A final knockout blow for Towle. 

Sheep on Top - and yes, (C) 2015 Ben Challis

As photography is my new hobby (and yes, I am  published!), but still reeling from that French Jimi Hendrix decision, the CopyKat was a little horrified to read that  photojournalists in Serbia have had to appeal to lawmakers to reject a proposal by the ruling party to define their work as the result of a “routine mechanical act” and therefore not worthy of copyright protection. Not worthy!!!!! Photojournalists in Serbia (and quite honestly elsewhere) frequently complain that newspapers and Internet portals publish their pictures without payment, and are happy to "risk being sued in Serbia’s overloaded, inefficient and sometimes corrupt courts." The Serbian Progressive Party’s latest proposals to parliament "would legalise such theft", photojournalists warned.

And finally, we've just been alerted to a new online music platform, Wefre, which TorrentFeak  says is clearly 'inspired' by Spotify, but which claims to use officially available APIs from licensed sources to provide 'free unlimited music' to fans. TorrentFreak says experts believe that borrows its music from YouTube's API feed and its song/album database from Spotify. A Kickstarter fundraiser is underway to help build iOS and Android apps - but we expect rapid attention from the major and leading independent record labels in the very near future. TorrentFreak says: Not only does this beautiful YouTube / Spotify mashup out-perform the recently defunct Aurous in every way, Wefre uses officially available APIs from already licensed sources. Legal? We might not have to wait long to find out.  UPDATE (30.01.16) : A two week old music streaming site, Wefre, has announced that until further legal research is done, it will close access to its music streaming platform. "Initially, the Spanish-based team didn't think that they were breaking any laws because they were providing the service through YouTube's and Spotify's official APIs for developers. Wefre claimed that they created the service whilst fulfilling the terms of use of those APIs." The team of three students behind Wefre wrote "We want to point [out] that we haven't received any official warning from Google or Spotify, we never wanted to profit at the expense of the artists and, before making a huge mistake, we want to seek advice in a smarter way."

The CopyKat - of takedowns, trollls and transformation

There should be a limit on exemptions for parody, says the Hong Kong Copyright Concern Group. The umbrella group of 14 organisations, which includes the record labels body the IFPI and the Federation of Motion Film Producers of Hong Kong, was offering its own opinions as part of a public consultation on whether parody should be exempted from copyright if the instigators do not make money from their work or damage the economic interests of others. The consultation was launched by the government in July and is now running until November 15. The Concern Group also said that any exemptions for parody must follow the Agreement on Trade Related Aspects of Intellectual Property Rights.

And over on the IPKat, Eloneora has been looking at planned reforms to the Irish copyright system - her lastest blog is on the Review Committee's thoughts on fair use  - to "[e]xamine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context" and it's well worth a read - particularly as the Irish proposals might well be in immediate conflict with constraints posed by Article 5 of the InfoSoc Directive. 

The Beatles have topped a list of artists whose music is not being taken down from file-sharing websites (or at least not effectively) which has been complied by anti-piracy service MUSO which  compiled its top ten by monitoring websites which are compliant with takedown requests meaning that the illegal files counted could easily be removed. The Beatles had 187,687 files available illegally on the sites surveyed, over 115,000 more than the number two act, Fleetwood Mac. MUSO estimated that these illegally available Beatles tracks would be accessed around 190 million times per year, with some of the files online for over five years.

A 30-year-old Chinese law graduate has received a three year suspended prison sentence and fined 10,000 yuan for copyright infringement in Jiangyin, Jiangsu. The Jiangyin People’s Court found that the defendant, Zhang, an enthusiastic movie fan, had devoted himself to translating non-mainstream art films and selling them online. Zhang learned English, French, Japanese, German, Russian and Korean to help him in his work. Zhang claims he was motivated by a market need that he discovered in discussions on online forums. While many people expressed a desire to watch foreign art movies it was a niche not supported by the mainstream market in China. It was, however, also illegal.

Jay-Z is facing another sampling claim. A lawsuit was been filed against the rapper, Roc-A-Fella Records and  Atlantic Recording Corp by Manhattan record label Tuf America, which claims that the track "Run This Town" with Kanye West and Rihanna illegally samples New Orleans soul singer Eddie Bo's 1969 number "Hook & Sling, Part 1." The plaintiffs are seeking proceeds from "Run This Town" and damages, and are asking for a court order to halt "further distribution and exploitation" of the recording. 

The 'Prenda Law' copyright trolling saga rumbles on. Now another US federal judge has entered the fray and has ordered AF Holdings Inc, one of the firms used to file lawsuits which pushed for settlement from individuals accused of illegally downloading online porn, to return money paid in settlement of the infringement claims.  AF Holdings filed five different lawsuits and four of those cases quickly settled for sums ranging from $US3,500 to $US6,000. Judge Franklin Noel is forcing AF Holdings to return the settlement cash after finding the company couldn’t prove it held the copyright to “Popular Demand” and “Sexual Obsession” finding “AF Holdings failed to produce any credible evidence that the [copyright] assignments were authentic” adding that his Minnesota “court has been the victim of a fraud perpetrated by AF Holdings, LLC.” Judge Noel also found that AF used a forged signature on a copyright-assignment agreement. The name on that agreement was of Alan Cooper, a caretaker at the Minnesota cabin of John Steele, one of the lawyers involved with AF. Cooper testified that he never signed the agreement or held a position with AF Holdings. Lots about this and other Prenda news here http://www.techdirt.com/blog/?company=prenda+law - according to Techdirt it seems copyright is off the agenda, and one ex Prenda lawyer is now targeting websites with alleged Americans with Disabilities Act (ADA) violations - and looking for prompt settlements, 

This guest post by Jeff Price, Founder & CEO of TuneCore on Hypebot: "While the major music companies' revenue from music sales has gone down, they have a brand new increasing income stream: revenue generated from the sale of other people's music. In the past five years, hundreds of millions of dollars of songwriter royalties have been generated and never paid to the songwriter, or have been given to Warner Bros, EMI, Universal, Sony and others based on their market share - estimates put this new income at over half a billion dollars" and in particular "The complexity of copyright law, the total lack of transparency by the collection agencies and the inability to audit anything, and you have a perfect storm for global copyright infringement with hundreds of millions of dollars of other people's money getting siphoned off and/or not paid to the millions of rightful copyright holders". If you write or record songs, or own a small catalogue or label .... read on : It is a bit of an advert for Tunecore, but a good read - More here.

Torrentfreak report that David León Marín, who ran a BitTorrent indexing site in Spain, is facing an eighteen month jail sentence after being found guilty of criminal copyright infringement. He was also fined 21,000 euros and banned from creating or managing websites for three years. Marín, who ran the site Bajatetodo, was originally arrested in 2007.

Music Week reports that  a group of European Parliament members have called for a review of The European Copyright Directive to overhaul a "licensing nightmare". MEPs Amelia Andersdotter (Pirate Party, SWE), Marietje Schaake (Social Liberal Democrats NL) and Pawel Zalewski (Christian Democrats, PL) hosted an event that was aimed at highlighting the need for change to the Directive with Andersdotter saying: “Infosoc has created a horrible licensing nightmare that no one is able to penetrate ... those who make use of culture – file-sharers, DJs, libraries, schools – live in a constant state of uncertainty" adding “It’s really difficult to find out what the freedoms and rights are of those who use culture. What is permitted and not permitted? When is someone at risk of getting sued? The law really needs to make that more clear.” A number of MEPs had previously sent a letter to the EU Commission president Jose Manuel Barroso saying that people of the EU "are concerned that the current copyright system is no longer for them" and lacks relevance in 2013 and Barosso had replied a saying that The Commission would continue to work to update the copyright framework to make sure it stays “fit for purpose in the digital environment”.

It seems that after a six-and-a-half-year crusade, and a recent decision denying class action status, the Premier League, the French Tennis Federation and a number of music companies have walked away from a long-running legal battle over copyright infringement with the Google-owned video-sharing website YouTube. That's all according to documents filed in New York and seen by the Guardian who suggest that with the content owners now extensively using YouTube's takedown provisions, the move is likely to lead to clubs being able to use the platform to show delayed highlights of their matches on their own YouTube channels. While the court case was ongoing they had been prevented from showing any on-pitch action and limited to behind-the-scenes videos and interviews. Both sides will pay their own costs after agreeing to a voluntary dismissal. 

And finally, the The US Supreme Court has decided not to hear the controversial copyright case between the photographer Patrick Cariou and the artist Richard Prince, who used a number of Cariou’s images of Rastafarians in 30 paintings in the series “Canal Zone”. The 2nd Circuit Appellate court held the use to be transformative in 25 of Prince's works. The case continues at the district level where the Andy Warhol Foundation for the Visual Arts and the Rauschenberg Foundation have submitted amicus briefs urging the consideration of the opinions of art historians in the formation of what's transformative. Five uses by Prince were not considered transformative and those were sent back to the lower court for a determination, using the appeals court standard for transformative use.

Hong Kong opts for private enterprise whistle-blowing

David Allison (Laracy & Co., Hong Kong) has drawn my attention to this link to a recent development on his patch which, as he puts it, "raises some interesting questions". As he explains:

"Hot on the heels of various amendments to the Copyright Ordinance in 2010 (which provides for increased criminal sanctions for business end-user infringement), a press release from the Hong Kong Customs and Excise Department notes that there is now a bounty payable to "whistleblowers" who inform Customs about copyright infringement in their organizations. There is a further bounty payable if the information leads to a conviction.

While the issue of employees informing on their employers is interesting in itself (surely you would only do this if you were looking to leave your current employer — unless of course you are a particularly civic-minded individual) the really interesting part is the funding of the whole scheme. It transpires that the Hong Kong Copyright Licensing Association (HKCLA) and the Hong Kong Reprographic Rights Licensing Society (HKRRLS) are funding the scheme, which is then administered by Hong Kong Customs".

David is curious to know what readers think about private licensing bodies funding the government to do their work.  He concedes that it is of course it is in the licensing bodies' best interests do take this initiative since high profile convictions would certainly increase compliance and boost the number of licences sought – but he just has a rather uneasy feeling about private funding of public enforcement.

This blogger's feeling is that, irrespective of the industry concerned and the intellectual property right infringed, the time has come for a great deal more private funding of public enforcement.  With the best will in the world, police and customs can't stem the tide of trade in infringing goods all by themselves, and importers and infringers aren't kind enough to give due notice in writing of times and dates when they are planning to infringe, together with an appended list of rights infringed.  If the rights owners in question were not those attached to the copyright-based industries but to, for example, the proprietary pharma sector seeking information on imports of fake and potentially fatal medicines, would we not applaud such initiative?