THE COPYKAT

This CopyKat from David Liao

US Copyright Office – further update

As previously covered on The 1709 Blog here, there was an unprecedented removal of Maria Pallante from her position at the US Copyright Office last October with some speculation that her policy position had been the cause of this. Further information recently revealed indicates however that the US Copyright Office may have been grossly mismanaged during Pallante’s time, with one such example being a failed electronic licencing program which exceeded its budget of $1.1 million by over $10 million.  In addition, there are also allegations a fake budget item to the tune of $25m appeared in the initial FY18 appropriations request, which would account for roughly a third of the Copyright Office’s budget. This information has been brought to light specifically in relation to a bill introduced in Congress March this year (which would, amongst other things, allow the President appoint the next Register of Copyright as opposed to the Librarian of Congress) and more generally a call for modernisation of the Copyright Office and reallocation of power between the government branches.  More details here.

Big Bang Producers can sleep soundly to Soft Kitty

Fans of the hit show “The Big Bang Theory” will be familiar with the catchy song “Soft Kitty” (video clip here for those unfamiliar or wanting a refresher). What may be less well-known is that in December 2015 a lawsuit was filed in relation to this song by Ellen Newlin Chase and Margaret Chase Perry, the daughters of Edith Newlin who wrote the original lyrics to the song in the 1930s as a poem.

As background, this poem had been published in the Songs for the Nursery School book by one of the defendants The Willis Music Group (“Willis Music”) in 1937 with Newlin’s permission, and also registered then as a musical composition with the US Copyright Office. Willis Music subsequently renewed this copyright registration in 1964 and the plaintiffs alleged this would have renewed Newlin’s rights to the lyrics. If so, the licence provided by Willis Music to the other defendant’s (including Warner Bros. Entertainment) would have required Newlin’s permission and therefore use of this song in the show infringed her copyright. 

Despite noting that section 24 of the 1909 Copyright Act is “hardly a model of clarity”, the Southern District Court of New York recently dismissed the claim, holding that Newlin and assigned the copyright to Willis Music (meaning the licence was valid) and that the distinction made by the plaintiff’s between common law copyright and other copyrights was a distinction without a difference. For more details, see here for the memorandum and order. 

Collection societies and blockchain

The three largest member-owned collection societies (the American Society for Composers, Authors and Publishers (ASCAP), the Society of Authors, Composers and Publishers of Music (SACEM), and PRS for Music) are working with IBM and Hyperledger Fabric to create a new system to confirm copyright ownership information and conflicts using blockchain technology. The goal of the project is to “prototype how the music industry could create and adopt a shared, decentralised database of musical work metadata with real-time update and tracking capabilities” and, if successful, will hopefully address long-standing issues in the music industry and provide benefits to music creators worldwide. See here for more details. 

The CopyKat - starting the year with a (Big) Bang!

Two daughters, Ellen Newlin Chase and Margaret Chase Perry, have filed a copyright infringement case against CBS, who they say featured their mother's lyrics in the show. In several episodes of the nerd glamorizing Big Bang Theory the characters sing a lullaby to sooth Sheldon (the mercurial Dr Sheldon Cooper), which includes the vocal line "soft kitty, warm kitty", a line allegedly taken from Ellen Newlin's work.

Google Books: we thought it was all over - but maybe there is still a twist in the tale! The 10-year long litigation between Google and the Authors Guild looked like it was finished once and for all when a unanimous appeals court ruled in October 2015 that the tech giant’s scanning of 20 million books was fair use. But there may be one more chapter. The Authors Guild has now asked the Supreme Court to reconsider the appeals court ruling, which affirmed the book scanning was “transformative” and was fair use. The Guild say the case "represents an unprecedented judicial expansion of the fair-use doctrine that threatens copyright protection in the digital age. The decision below authorizing mass copying, distribution, and display of unaltered content conflicts with this Court’s decisions and the Copyright Act itself."

Paramount and CBS are suing the producer of a crowdfunded "Star Trek" fan film for copyright infringement. Paramount  and CBS, who own the rights to "Star Trek" are going after Alec Peters and Axanar Productions, who are raising money through Indiegogo to produce a movie called "Axanar." Axanar has professionals working in front and behind the camera, with a fully-professional crew — many of whom have worked on Star Trek itself — to ensure Axanar woud be of the same quality as an official Star Trek movie according to Peters. But the film companies accuse Peters of "unauthorized exploitation" of the "Star Trek" franchise: "The Axanar Works are intended to be professional quality productions that, by defendants' own admission, unabashedly take Paramount's and CBS's intellectual property and aim to 'look and feel like a true Star Trek movie,'" reads the lawsuit, filed in federal district court in California on December 29th. Nerd Reactor has its own take here.

The US Copyright Office has announced a review of ‘section 512’, which contains the safe harbour provisions in American copyright law. The Office said that its review would cover “the general operation of section 512’s safe harbour provisions, the processes for issuing takedown notices and counter notifications, and the legal standards that apply under the statute”. The Copyright Office is inviting submissions from interested parties with a deadline of 21st March 2016. This will be followed by public meetings.

In a class action lawsuit, David Lowery, of the bands Cracker and Camper Van Beethoven, has alleged that music streaming platform Spotify is ripping off recording artistes: "Spotify has - and continues to - unlawfully reproduce and/or distribute copyrighted musical compositions . . . to more than 75 million users via its interactive commercial music streaming service," according to the lawsuit, filed in U.S. District Court in the Central District of California. " . . . Indeed, Spotify has publicly admitted its failures to obtain licenses for the musical works it distributes or reproduces or to pay royalties to copyright owners for its use of their Works."

Google received requests from copyright owners to remove 558 million links to material, which allegedly infringed on copyrights from its search engine in 2015. The latest figure shows a surge of 60% on comparative figures from 2014.

And finally, Roberta Rosenthal Kwall, the Raymond P. Niro Professor at DePaul University College of Law, and the author of The Soul of Creativity: Forging a Moral Rights Law for the United States, has penned an interesting piece on Forward on the position the Anne Frank Foundation have taking by asserting that her father was a major editorial contributor to the Anne Frank Diaries - principally to secure ongoing copyright protection for the work. But as Roberta asks, "If Otto is now seen as a co-author, how does this impact the authenticity of Anne’s original voice and the legitimacy of the diary?" Despite the Fond's  (Foundation) claims, Isabelle Attard, a French Parliament member whose grandparents died in the Holocaust, published the entire Dutch text of the diary on Friday 1st January. Separately, Olivier Ertzscheid, a lecturer at the University of Nantes, published the text on his website the same day according to Haaretz. Franks was murdered by the Nazis in 1945 and copyright in her own work would expire 70 years later in Europe.  And for a trade mark perspective,following on from the recent decision of Fourth Board of Appeal of OHIM allowing registration of the word mark ‘Le Journal d’Anne Frank’, have a look at this interesting report from Eleonora on the IPKat here