The CopyKat - Holy haberdashery, Batman!

The 9th U.S. Circuit Court of Appeals has confirmed a 2012 District Court judgment that held that the Batmobile's bat-like appearance and other distinct attributes, including its high-tech weaponry, attract opyright protection that can't be replicated without permission from DC Comics, the copyright holder. "As Batman so sagely told Robin, 'In our well-ordered society, protection of private property is essential,'" Judge Sandra Ikuta wrote for the three-judge panel. In its ruling, the 9th Circuit said that Mark Towle advertised each $90,000 replica as the "Batmobile," and used the domain name batmobilereplicas.com to market his business. He also advertised that the replicas would get noticed because of the Batmobile's fame, the court said. Come on, Robin, to the Bat Cave! There's not a moment to lose! and more Batman and Robin quotes here. 

The CEO and chairman of the RIAA has said that the current notice and takedown anti-piracy process is both costly and increasingly pointless. Cary Sherman says the USA's safe harbor provisions contained in the DMCA have forced labels into a "never-ending game" of whack-a-mole while sites under its protection effectively obtain a discount music licensing system clarly highlighting the frustration the major record labels and their Hollywood counterparts feel about framework designed to facilitate the removal of infringing content on the Internet. More on TorrentFreak here. Sherman also commemnted on “the flawed licensing regime in which we have to operate” saying “Government-set licensing has enabled services like Sirius XM to use music at below-market rates, based on a decades-old subsidy that has long outlived its purpose” adding “Even worse, under current law, AM/FM radio broadcasters pay absolutely nothing for the sound recordings they use to draw listeners and generate billions of dollars in revenue. In a marketplace that values innovation, it’s ironic that it’s the legacy technologies enjoying government-granted economic benefits and competitive advantage” and "while the music industry has embraced new technology and business models, the beneficiaries of this broken system cling to this antiquated law that was enacted at the turn of the century, well before the modern Internet and today’s most advanced (and unimagined) technologies". More on CMU here.  

National Music Publishers Association (NMPA) boss David Israelite, responding to an argument from Pandora which suggested that the majority of US citizens won't pay for streaming, has said that 'free' music is devastating for songwriters saying "Pandora is keeping 54% of its revenue, and sharing only around 4% with the creators who write the songs. That means Pandora believes that delivering songs over an Internet connection is somehow worth more than 13 times the songs themselves. There is no news, no sports, no weather, no comedy – only music. Yet the music creators get less than 5% of the revenue generated from the service" citing Taylor Swift who famously said last year “I'm not willing to contribute my life's work to an experiment that I don't feel fairly compensates the writers, producers, artists and creators of this music. And I just don't agree with perpetuating the perception that music has no value and should be free.”   La Roux. tweeted this week: "Thanks for the £100 for this quarter [Spotify] ...one more month and I might be able to afford your premium service. Lucky me!" Separately Pandora CEO Brian McAndrews told reporters that Pandora had now paid out a historical  $1.5 billion in royalties saying: "I am proud of our enormous royalty contributions, and our progress on building on a broader vision for the future of music. We are very passionate about our mission to help artists find their audience and help listeners find their music - music they love, that moves them, that they personally connect with - and we are achieving significant momentum".

A company called  Library Ideas LLC has spent the past five years pioneering a 'free' streaming model in one of the only places you might expect one nowerdays: The public library. The service is called Freegal, and in August the Watsonville Public Library opened an account. As long as the branch pays an annual fee, patrons can stream thousands of artists from a wide variety of record labels, including major labels, many under Sony Music’s large umbrella. Cardholders can log in from anywhere — they don’t need to be inside the library — and they’re allowed up to three hours of streaming per day and three free downloads per week - but there is a cost - a cost to the library of about $4,000 per annum. Another service, . Hoopla, serves 816 libraries across North America. Its pricing structure differs from Freegal’s — libraries only pay for content that patrons borrow and the service extends to eBooks and DVDs. Both services say recording artistes (via labels) and music publishers (and thus songwriters) get paid, the later through performing right organisations. More here.

Germany's national arbitration board on copyright has rejected German copyright collection company VG Media suggested six per cent “Google Tax”. Although the ancillary copyright tax law applies to Google, the board, which is part of the German Patent Trademark Office (DPMA), said VG’s request for six per cent of Google's German revenue was far too high. VG had already reduced its demands from 11% according to the Register.


And finally ..... another  fake Facebook copyright message claiming to protect users' media has been making the rounds on the social network. The message claims to put copyright protections on a user's posts after they share the status update. Its nonsense and of course users of the site will have already agreed to Facebook's privacy terms when they sign up. 

The CopyKat - can Batman land a knockout punch for actors in copyright spat?

Those pesky Turtles

It seems SiriusXM has decided to rely on the 1940 case of  RCA v Whiteman et al to persuade  U.S. District Judge Colleen McMahon to reconsider her view that SiriusXM should be paying royalties from the broadcast of pre-1972 sound recordings by The Turtles and other acts. In that case Judge Learned Hand for the Second Circuit Court of Appeals wrote that state law should not let performers, once a phonograph was sold, control how and when it was played saying "we think that the “common-law property” in these performances ended with the sale of the records and that the restriction did not save it; and that if it did, the records themselves could not be clogged with a servitude." Judge McMahon says the 1940 case "might require her to rethink the ruling." More on the series of cases brought by the Turtles' Flo & Eddie here. 

Cisco Systems has said it will initiate a legal action against its fast growing rival, Arista Networks, accusing the company of patent and copyright infringement. Cisco has alleged that Arista has violated its patents and copyrights linked to its networking equipment. With copyright, Cisco's claims tha Arista has not only copied the Cisco product features, but has also apparently copied the language in Cisco's operating manuals - with typos and grammatical errors and all. More here.

Sol-seom by Michael Kenna

A case from South Korea where the plaintiff, Gallery Kong, a Korean image agency representing the interest of professional photographer Michael Kenna, has lost an appeal in a copyright infrngement lawsuit against Korean Air. The dispute concerns a photograph Kenna took of a small island in Gangwon Province under the title of “Island of Pine Trees.” He took the photo February 2007 while coming back from a photo shoot and spent about one and a half hours walking along the embankment to find an appropriate spot for shooting and produced the now famous black-and-white image called “Sol-seom” (meaning an island of pine trees). Korean Air used a similar colour image taken by an amateur photographer in a 2011 TV commercial - resulting in the lawsuit.

The Korean Air image

 

But it was not the same image - and the appellate court upheld the trial judge saying “Creative works using the same natural scenery like mountains, trees, and stones tend to be similar and thus the range of its creativeness is bound to be limited” and  “Given the fact that the object in the photograph is a natural one, a creativeness claim about it is weak and minor adjustments like taking a picture from a different angle can’t be taken as creative elements”. They also commented that the two pictures (one taken by Michael Kenna and the other by an amateur) are different in terms of volume and direction of light and the way the picture was taken. As to the claim by the plaintiff that the pictures are similar in their first impression, the judges answered, “The plaintiff’s work gives an impression of an Oriental ink-and-wash painting while the amateur’s exudes dynamism at the time of sunrise, which are fundamentally different.”

It's an interesting approach, but post the CJEU's Inforpaq decison it seems contrary to the decision made by Sir Colin Birss in Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1 -although here the claimant had manipulated a photograph of the House of Parliament to created a disticntive predominalty black and white image with a red routemaster bus on Westminster Bridge, which was then recreated by the defendant. Judge Birss (as he was then) considered the scope of photographic copyright by reference to three aspects which could be considered 'original': (i) Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on; (ii) Residing in the creation of the scene to be photographed; (iii) Deriving from being in the right place at the right time -  and with a nod to Infopaq - found for the claimant.

Cindy Lee Garcia, the actress who got death threats for her role in a trailer for the rather horrible Innocence of Muslims before taking action against Google to enforce a takedown notice - and convincing the majority of the 9th Circuit Court of Appeals (with the ruling from Chief Judge Alex Kozinski) that actors could have a copyright interest in their performances - has now attracted amici support from SAG-AFTRA, the Actors Equity Association, the American Federation of Musicians and other associated talent labour groups in the entertainment industry. They say that an actor can indeed have a copyrightable interest in a performance that's separate and apart from the interest anyone else holds in a motion picture. SAG-AFTRA and the other performer's guilds have argued for the originality of acting performances to be protected and say that a performance can be considered a pantomime or dramatic work under Section 102 of the U.S. Copyright Act. The brief argues that usually each actor adds something new to the character he or she performs saying "Google and its amici argue that the actor is basically a puppet — an automaton that merely does as the director instructs, reading the words the writer writes, depicted as the cinematographer sees him or her. But this is clearly not the case. The actor imbues the character with originality. Compare, for example, the various actors who have played the character Batman on the big screen — each actor brought something different to their performance of the character that, even when masked in full costume, Christian Bale’s performance stands apart from Michael Keaton’s, or Val Kilmer’s, or George Clooney’s or even Adam West’s television appearances. And the recent casting of Ben Affleck to play the role sparked considerable debate among fans of the character" and "While a director or cinematographer may help guide the actor’s performance, particularly in connection with stage directions, it is the actor’s own original expression that the audience sees" says the brief. Facebook, Twitter, IAC and Pinterest had all requested permission to file an amicus brief supporting Google's position. The dissenting judge in the 9th Circuit, Judge N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "An actor's performance, when fixed, is copyrightable if it evinces 'some minimal degree of creativity ... no matter how crude, humble or obvious it might be".  More in the Hollywood Reporter here

In Australia Attorney General George Brandis and Communications Minister Malcolm Turnbull have written to major copyright holders to urge them to come up with ways to discourage people from infringing copyright online. It's a carrot and stick approach with ministers saying that if the code of practice is not agreed with 120 days, the government will impose its own rules to crack down on illegal downloading and streaming of material on the internet. The planned code of practice “will include a process to notify consumers when a copyright breach has occurred and provide information on how they can gain access to legitimate content,” Mr Turnbull said. The Australian government will also amend the Copyright Act so copyright owners can seek a court order to block a website operated from overseas that Australians use to access content unlawfully although some commentators say the planned scheme would be open to abuse by content owners - Dr Matthew Rimmer told TechWorld "There are a number of whistleblowing sites that have a large number of copyright materials on them" adding  "A site like Wikileaks, for instance, could certainly be targeted under these laws." More here.

And finally an interesting case from the world of music sampling. A US Judge has thown out a case against rapper Jay Z over the use of just one word 'oh' - from a recording and song by Eddie Bo called The Hook & Slings  in his track and video Run This Town with the court saying "Run This Town bears very little and perhaps no similarity at all to Hook & Sling Part I. The melody and lyrics are entirely different. The lyrics do not contain the word “oh.” .. [It appears] only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener. "This does though seem to sidestep the ruling made in Westbound Records and Bridgeport Music v No Limit Films (September 2004) by the 6th Circuit Court of Appeals: here the court posed the question “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?” The Court’s answer to this was in the negative” and the court added “Get a license or do not sample – we do not see this as stifling creativity in any significant way” although that decision can istelf be contrasted by US District Judge Alison Nathan's more recent decision in the Tuf America v Beastie Boys case in 2013 .  More here. and more on music sampling here.

The Cat Signal: it's launch day!

A new lobby group, the Internet Defense League, is launching today to fight so-called copyright crackdown legislation. Members include Mozilla, WordPress and Reddit, who join together in "Protecting Free Internet Since 2012".

The group "takes the tactic that killed SOPA & PIPA and turns it into a permanent force for defending the internet, and making it better. Think of it like the internet's Emergency Broadcast System, or its bat signal!"

How does it intend to do this? By offering a code that can be embedded in members' websites. The League says that "When the internet's in danger and we need millions of people to act, the League will ask its members to broadcast an action. (Say, a prominent message asking everyone to call their elected leaders.) With the combined reach of our websites and social networks, we can be massively more effective than any one organization"

Look out today for the group's "cat signal" which is being blasted all over the internet, and tonight for the image being projected into the sky, Batman-style (on the opening night of The Dark Knight),  in London, San Francisco, New York, Washington DC and Ulaanbaatar.

Copyright is high on the political agenda in North America and in Europe, so this is undoubtedly the right time to lobby. The law is evolving in an attempt to catch up with technology and both rightsholders and users need to take action to ensure that the changes decided on are not to their detriment.

The Internet Defence League's coordinated approach is helpful: a united voice will hold much more sway than each company could on its own. However members of the group do choose on a case-by-case basis whether to participate in alerts, and the views in alerts are not always endorsed by all members. It will be interesting to see how this pans out in practice.

The League says: "We are very happy to be sharing a launch date with Batman. Everyone who took part in defeating SOPA, PIPA and ACTA this year are legitimate real-life superheroes. Sure, the film's parent company probably has bats$%&# crazy plans for our internet (and yes, they gave a role in the movie to a pro-PIPA Senator). But Batman? He's awesome."

Holy copyright Batman, we've been infringed

A US federal judge has potentially granted copyright protection to the iconic Batmobile after he found that the owner of Gotham Garage, Mark Towles, was in violation of that copyright resulting from his business of selling replica Batmobiles. The case was brought by DC Comics who claimed the infringements resulted from the sale of “unlicensed replica vehicle modification kits based on vehicle design copyrights from plaintiff’s Batman property, including various iterations of the fictional automobile, the Batmobile.”

Towles had originally attempted to have the lawsuit dismissed, claiming that the Copyright Act doesn’t protect “useful articles” like a car and its design, but District Judge Ronald S W Lew said that the “useful articles” exception did not apply when there are so many elements of the car that serve no practical use. In his ruling, Lew said there was a “reasonable inference that there may be non-functional artistic elements of the Batmobile that may possibly be separated from the utilitarian aspect of the automobile. As such, the court finds that the Batmobile and all of its relevant embodiments are not, as a matter of law, excluded from copyright protection” saying that Towles “ignores the exception to the ‘useful article’ rule, which grants copyright protection to nonfunctional, artistic elements of an automobile design that can be physically or conceptually separated from the automobile” and that the "defendant’s argument lacks merit”. The Judge held that DC Comics “pleads sufficient facts to support the allegation that defendant violated an exclusive right of plaintiff’s copyright ownership.” The claim also pleads Trade Mark infringement.

The Batmobile first appeared in 1966 in the television series Batman starring Adam West, and has been in numerous Batman motion pictures, with the early starting orders from Robin being ""Atomic batteries to power...turbines to speed".

The Hollywood Reporter says that the ruling means that there’s likely to be a flood of similar copyright battles being fought in the near future with items such as superhero costumes and other replica-type items in the firing line. Comments from our US friends would be much appreciated!

http://www.wired.com/threatlevel/2012/02/copyright-to-the-batmobile/


Image: We are sure Lego most certainly DO have a licence to use the Batman and Batmobile images and the Bat logo!