THE COPYKAT

Hello to Robo Lawyer - created to make hyperlinking easy - and the website describes Robo as follows: "​I am Robo Lawyer programmed to help reduce legal risks related to publishing hyperlinks on the Internet. I am currently programmed to help you if you are from European Union. I know the EU law and the rulings of the Court of Justice of the EU, especially the ruling in the famous GS Media case." Robo lives as a chatbot in Messenger, so you need a Facebook account if you fancy a chat. The creator is Tomasz Zaleski (Eversheds Sutherland Poland). 

Songwriter? Lyricist? Need some help with copyright? Going for a Song tells the story of Tina and Ben, a music composer and a lyricist who create an original song and discuss how to market it. This new tool helps musicians learn how UK copyright law regulates different aspects of the journey of a song, from its creation to its distribution.

A motion to dismiss has been filed by attorneys representing Cher in the copyright infringement case filed against her by graphic designer Moshik Nadav concerning the artwork and in particular the graphics on the cover of Cher's Closer To The Truth release. The 2013 album was Cher’s 25th studio release. Nadav’s suit, in the Southern District of New York, names Cher, Warner Bros. Records, a design company and the albums’ art and design director as defendants and seeks $5 million in damages. According to Nadav's complaint, two logos that appear on Cher's album infringe on the copyrights to his Paris and Paris Pro logos, which he claims were created using his typography, featuring “artistic elements, such as swashes having various thicknesses, end drops and unique lettering.” Section 202.1 of the US Copyright Act, which gives examples of works not copyrightable, including “mere variations of typographic ornamentation, lettering or coloring" but here Nadav says Cher's work is substantially similar to his own logos - and he has obtained copyright registrations for those - but this looks like an uphill battle. More here.

Alleged KickassTorrents owner Artem Vaulin's defence team have said he will appeal last week's extradition ruling. Lead counsel Ira Rothken stresses that the refusal of the Polish court to grant bail and the unprecedented allegations violate the human rights of his client. The team is confident that they can book a positive outcome on all fronts. Last week a Polish court ruled that Vaulin could be extradited to the United States.

California’s Supreme Court is set to decide if the state’s copyright law protects the performing right as part of the sound recording copyright - an important question as federal copyright law only protects sound recordings released post 1972. It was in California where the Turtles secured their big win, with a court there ruling that there was a general performing right for sound recordings, a landmark ruling that forced both Sirius and Pandora to agree settlements with the wider record industry, especially once a New York court indicated there was likely a performing right under that state’s copyright law as well - but that new York decision has now been overturned on appeal.  Now the Nine Circuit Court Of Appeal has asked the California's Supreme Court to rule on the matter once and for all. Requesting the opinion the Ninth Circuit said this “is warranted if there is no controlling precedent and the California Supreme Court’s decision could determine the outcome of a matter pending in our court” and “This appeal not only meets both criteria, but also presents an issue of significant public importance”. The Californian court does not have to accept the question.

One of the more incredible allegations about Prenda Law, the copyright-trolling operation that sued people for downloading movies online, was that the lawyers behind it might have created and uploaded some of the porn in question simply as a way to catch more offenders. Now ArtsTechnica tells us this may well be true, and despite repeated denials by the Preda lawyers, in a new update it seems they were indeed making movies:  "Steele pled guilty in Minnesota to federal charges of "conspiracy to commit mail and wire fraud" and to money laundering. And guess what? In 2011, Team Prenda had in fact become porn producers (They continued to have other "real" clients at that time as well.)" and "On at least three separate occasions in Chicago, Miami, and Las Vegas, Steele and [Paul] Hansmeier... contracted with adult film actresses and produced multiple short pornographic films" 

Torrentfreak also updates us on trolls, saying "A copyright troll that terrorized service providers over alleged copyright infringement is set to forfeit the very assets that made its entire campaign possible. After losing an aggressive lawsuit against Giganews, Perfect 10's multi-million dollar bill will now be satisfied by the Usenet provider liquidating the adult publisher's intellectual property".  Perfect 10 was originally an adult entertainment magazine that also operated a subscription website featuring images of women. In November 2014, the U.S. District Court for the Central District of California found that Giganews was not liable for the infringing activities of its users. Perfect 10 was ordered to pay Giganews $5.6m in attorney’s fees and costs and this was upheld on appeal.  

Ninth Circuit Panel Held that California Resale Act Violates Dormant Commerce Clause

Several artists and estates of artists filed three separate class action suits in 2011 against two auctions houses, Christies and Sotheby’s, and with the online retailer and auctioneer eBay, alleging that they had failed to pay them royalties on sales of fine arts, as required by the California Resale Royalty Act, Cal. Civ. Code § 986(a), (CRRA).

Defendants had moved to dismiss, arguing that the CRRA violated the “dormant” Commerce Clause of the U.S. Constitution. The Central District Court of California granted Defendants ‘motion to dismiss in 2012, holding that the CRRA impermissibly violates out-of-state conduct, and thus violates the “dormant” Commerce Clause. On May 5, 2015, an en banc panel of the Ninth Circuit held that the CRAA indeed violates the “dormant” Commerce Clause.

The California Resale Royalty Act

The California Resale Royalty Act (CRRA), Cal. Civ. Code § 986(a), requires that sellers pay the author of the work sold a five percent royalty if the work is a work of fine art, that is, “an original painting, sculpture, or drawing, or an original work of art in glass.”The CRAA applies if the work is sold in California, or if the seller resides in California, or if the sale takes place in California. This type of royalties scheme is also known as droit de suite, and aims at giving artists and their heirs a way to profit from the rising market value of the work. Indeed, the heirs of a deceased artist can assert the artist's rights for 20 years after the artist's death, § 986(a)(7). However, sales below $1,000 and those involving an artist who died before 1983 are out of the scope of the CRRA.

The Dormant Commerce Clause of the U.S. Constitution

Even Dormant, The Commerce Clause Can Strike Down State Law

The Commerce Clause of the United States Constitution, Article I, §8, gives Congress the power to regulate commerce among the several States. This article has been interpreted by the Supreme Court as restricting the States from discriminating or burdening unduly interstate commerce, and this negative aspect of the Commerce Clause, as it limits the power of the States, is referred to as the “dormant” Commerce Clause.

The CRRA, § 986(c)(1), defines an “artist” as "the person who creates a work of fine art and who, at the time of resale, is a citizen of the United States, or a resident of the state who has resided in the state for a minimum of two years" and thus applies to all artists who are U.S. citizens, regardless of the state in which they reside, or to aliens who have resided in California for at least two years.

The Ninth Circuit gave as an example a sale, which would take place entirely outside of California, but which would nevertheless be within the scope of the CRAA, as a sale where “a California resident has a part-time apartment in New York, buys a sculpture in New York from a North Dakota artist to furnish her apartment, and later sells the sculpture to a friend in New York” noting , that, in this case, the CRRA “requires the payment of a royalty to the North Dakota artist—even if the sculpture, the artist, and the buyer never traveled to, or had any connection with, California.” The Court thus, “easily conclude[d] that the royalty requirement, as applied to out-of-state sales by California residents, violates the dormant Commerce Clause” (p. 8), as the CRAA “facially regulates a commercial transaction that takes place wholly outside of [California]’s border”(p. 9). However, the Ninth Circuit found that the CRAA’s provision offending the Commerce Clause can be severed from the remainder of the Act.

As the District Court had found that the CRAA violated the dormant Commerce Clause per se, and that the entire Statute had therefore to be stricken down, it had not addressed Defendant’s two additional arguments, the CRAA’s preemption by the Copyright Act and that it was a taking of private property in violation of the United States and California Constitutions. Therefore, the Ninth Circuit remanded the case to a three-judge panel for considerations of these remaining issues, leaving to the panel’s discretion the decision to address them on the merits or to remand them to the lower court. 

Cameron wins Avatar copyright case

Following on for my post on The Godfather, and whether it is possible to protect a film character by copyright, this week a federal judge in the US has thrown out a claim against James Cameron and 20th Century Fox. The  claim alleged that in making the film Avatar, Cameron and 20th Century Fox had copied the screenplay for the unmade film Bats and Butterflies by Elijah Schkeiban. This is one of many claims that Avatar infringes copyright in an existing work (no doubt inspired by Avatar's $2.7bn (£1.7bn) box-office gross) all of which have failed.

In this instance, Mr Schkeiban alleged that Avatar was substantially similar to his screenplay for Bats and Butterflies, an unmade film which was based on a series of books written by him. In particular he claimed that Jake Sully, the wheelchair-bound hero in Avatar, was based on the lead character in Bats and Butterflies because both are physically "weak". He also said that he multi-levelled homes which the Na'vi tribe live in on Avatar's moon, Pandora, are comparable to the plants and trees in Bats and Butterflies. Finally Mr Schkeiban argued that that the "twist" in Bats and Butterflies, whereby the baddies turn on the goodies, should be protected by copyright.

Common sense dictates that Mr Schkeiban's claim should fail. It is always difficult to protect a plot by copyright, and it is even more difficult to protect distinct elements of a story such as the protagonist's physically weak demeanour. In the UK, the Patent County Court found last year in Hodgson v Isaac that the entire plot of a book can be protected, however Mr Schkeiban's claim fell far short of alleging copying of the whole plot.

Manuel Real, sitting in the US district court of California held that Mr Schkeiban's screenplay was "not substantially similar" to Avatar and that Bats and Butterflies was "a straightforward children's story that lacks the depth and complexity of the moods expressed in Avatar". Whilst the decision is undeniably less interesting than the question of who should play Christian Grey in Fifty Shades of Grey, it is reassuring to see a straightforward copyright case now and again.