The CopyKat - A spliffing new case for Mr Prince!

Photographer Donald Graham has sent cease-and-desist letters to the 'appropriation' artist Richard Prince and the Gagosian Gallery, requesting that they stop displaying or disseminating any artworks or other materials that include Mr. Graham’s images. 1709 readers will remember Mr Prince from the 2013 U.S. case of Cariou v Prince where Mr Prince largely succeeded with his fair use defence after 'transforming' Mr Cariou's photographs of Rastafarians in Jamaica. The new complaint, which was first reported by the website Hyperallergic, stems from a work shown last Autumn at Gagosian in the exhibit “New Portraits” (see image) which featured ink jet prints of images that Mr. Prince had taken from Instagram. The work shows Mr. Graham’s photograph “Rastafarian Smoking a Joint, Jamaica” as it appeared on the Instagram feed of a third party, with the comment “Canal Zinian da lam jam” added by Mr. Prince as a caption. Yes, he added a caption to an Instagram grab. In Prince's earlier case, the US Court of Appeals for the 2nd Circuit broadly supported Mr Prince's transformations, saying "Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five, which we discuss separately below. These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative." Could the same apply on these facts? The CopyKat thinks not - but it's all good publicity! More on Artsbeat here. 

PPL, the UK collection society which licenses use of recorded music on behalf of performers and record companies, brought 230 High Court cases against operators of leisure establishments for alleged copyright infringements in 2014, an increase of 10% on last year, according to analysis by the City law firm RPC. As this Blog has previously noted, The Football Association Premier League also increased the number of High Court cases it launched in 2014. It brought 36 cases, compared with five in 2013, as FAPL and Sky focussed pubs allegedly infringing copyright by broadcasting matches without an appropriate licence. More here.

BRICS (Brazil, Russia, India, China) countries accounted for only 5% of global copyright license revenue for authors and composers in 2013, according to a report from the International Confederation of Societies of Authors & Composers (CISAC). The CISAC Global Collections Report also quotes industry data estimating the Chinese advertising market as one of the fastest growing in the world. Advertising revenue is a key reference indicator in determining collective licensing tariffs. Much of the growth in advertising revenue comes from online advertising, with the China Internet Network Information Center (CNNIC) separately reporting that China now has 649 million Internet subscribers.

Swedish songwriters have joined their UK counterparts in criticising the way in which the digital streaming pie is currently shared out, pointing out the unfair and unsustainable way in which royalties stemming from streaming services are being shared between different stakeholders - in particular the large share taken by record labels on their own behalf, and on behalf of recording artistes. Earlier this month Marty Bandier, head of Sony/ATV Music Publishing, used the Grammy's to argue that songwriters and publishers have been given an unpalatably small portion of the digital music pie, and the British Academy Of Songwriters, Composers And Authors (BASCA) launched a campaign called The Day The Music Died which stated that as the recorded music industry has shifted from CDs to downloads to streams, "songwriters and composers are now finding their livelihoods under dire threat". This view is now echoed by 133 Swedish writers who say the returns from the likes of Spotify and Deezer mean ""very few songwriters will be able to afford to create music other than as a hobby". CMU Daily estimated that in a typical business model, 30% of the income from subscription and advertising revenues are taken by the streaming service to cover non royalty costs, overheads and its own profit, record labels take 55-60% of gross revenues, leaving at the most 10-15% for songwriters and publishers - if that - with one report backed by CISAC saying the songwriting share can be as little as 3% and recommending upping the revenues shared by rights holders to 80% and rebalancing the shares taken for recorded music and the songs to an equal footing. More on the Guardian Blog by songwriter Helienne Lindvall and on potential US reforms here.

So what to do? Well here's a solution (maybe .......): Qtrax, which at one time looked like being a leader in the digital music market only to see its much lauded bubble, launched at the MIDEM conference in 2008, well and truly burst as the major labels refused to deal, is back!  Qtrax is an advert-supported music player that "for the first time allows the users to download, stream and create a personalised radio channel all from one place" - and, crucially, all for free - that is relaunching at the end of the quarter with the twin aims of cracking down on music piracy and - yes, here's the twist - ensuring artists get paid for their work.  The all new Qtrax will launch the Artist Manifesto and 30% of equity in the company will be set aside for an 'Artists Trust', while  an additional 10% of royalties will be paid directly to artists and songwriters whose content is available on the service with Qtrax boss Allan Klepfisz telling The Telegraph: "There is something very wrong with the current model. The current economic structure is not likely to ever compensate the artist... But it's not that difficult for a paradigm shift to occur. Traditionally the record companies get equity in digital services, but no one has asked on behalf of the artists. This could become a de facto way of doing business".

The CopyKat - opening Pandora's Box - and other remarkable tales

The UK government has admitted that it is unlikely that changes to copyright law will be introduced on 1st April as it had intended. The Business, Innovation and Skills (BIS) minister David Willetts confirmed during a debate in the House of Commons that there was likely to be a delay in the delivery of the copyright reforms. As the technical review of the changes (which would introduce a new right to copy copyrighted material for private use; a new exception to conduct data analysis for non-commercial research; a new qualified right to quote copyright-protected content for purposes extending beyond criticism, review or news reporting, and a new limited right to use copyrighted material in a work of parody) has only just been announced, the April 1st deadline seems unlikely with Willlets saying "I think that things are reaching the stage where, arithmetically ... it will be hard to have the commencement date as 1 April".

US streaming service Pandora has secured a victory on one of the fronts of its ongoing royalty war with the American music industry last week, when a rate court judge considering the streaming service's licence from song rights collecting society ASCAP set a royalty rate of 1.85% of annual revenue, which basically keeps things as they are. That said - no one seems happy - Pandora are unhappy as the rate hasn't changed and they wanted a reduction - and songwriters and publishers are peeved - they argue that a significant uplift was called for to re-balance songwriters interests compared to the far larger share of the pie gathered in by record labels and recording artists. Pandora has subsequently announced that it would be increasing the price of its ad-free premium service; From May, new Pandora One customers will pay $4.99 per month, though existing subscribers will continue to pay $3.99 (for the time being).

The Recording Industry Association Of America has told the US House Of Representatives Intellectual Property Subcommittee (who are reviewing the of the Digital Millennium Copyright Act) that the  DMCA is not fit for purpose. The RIAA's chief Cary Sherman told the committee: "[Google should] ensure that when links to content are taken down, the same content on the same site is not continuously re-indexed when repopulated by the pirate site, rendering the takedown process useless". He went on: "Regardless of what Google takes down today, its search engine will spider the same pirate sites tomorrow and index anew all the illegal content on the pirate sites. All those links to infringing music files that were automatically repopulated by each pirate site after today's takedown will be re-indexed and appear in search results tomorrow. Everyday we have to send new notices to take down the very same links to illegal content we took down the day before. It's like 'Groundhog Day' for takedowns". In response and giving her company's side of the argument, Google's Katherine Oyama said "The best way to battle piracy is with better, more convenient, legitimate alternatives to piracy, as services ranging from Netflix to Spotify to iTunes have demonstrated. The right combination of price, convenience, and inventory will do far more to reduce piracy than enforcement can".

Irish internet service provider Eircom, which voluntarily instigated a three-strikes anti-piracy system (as part of a legal settlement with Ireland's record industry), has admitted that it is yet to disconnect a customer for illegal file-sharing.

Back  in March 2007 Viacom commenced copyright infringement proceedings against YouTube in a New York federal court after Viacom and its affiliates, including Paramount Pictures, discovered that its copyright-protected content (episodes, movies and substantial segments thereof) were uploaded onto YouTube without Viacom’s permission by YouTube users. Viacom was not holding any punches either, claiming approximately $1 billion in damages for the infringement ..... now seven years later the IP Kat takes up the story - but frst the background in case you have forgotten! In the District Court Judge Stanton’s gave summary judgment and held that YouTube had insufficient notice of particular, specific infringements for them to have "actual knowledge" or "aware[ness] of factors or circumstances" which would disqualify them for the safe harbour protection. Without item-specific knowledge of infringing activity, a service provider could not be found to have "the right and ability to control" infringing activity under section 512(c)(1)(B). Further, the District Court held that the replication, transmittal and display of videos on YouTube was done "by reason of the storage at the direction of a user" under section 512(c)(1). The net effect was that YouTube benefited from the USA's safe harbor provisions. On appeal, the Court agreed with Judge Stanton’s interpretation of the knowledge requirement stating that under Section 512(c)(1)(A) knowledge alone will not disqualify a service provider from the safe harbour protection. What will disqualify a service provider is if they have the knowledge or awareness but does not act expeditiously to remove or disable access to the material. Removing access to the material, of course, requires specific knowledge of the infringing material. That said, the appellate court vacated the order granting summary judgment because it held that a reasonable jury could find that YouTube did have acknowledge knowledge or awareness of specific infringing activity on the website.  The case reverted to the lower court, and then a further appeal was lodged  ....... and now the parties have settled saying In their joint statement;  "This settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together". More on the IP Kat here http://ipkitten.blogspot.co.uk/2014/03/the-seven-year-itch-viacom-v-youtube.html and on the WSJ here.

In a related post, Variety.com has revealed that YouTube has created an invitation-only program giving about 200 individuals and groups special status in identifying material suspected of violating its community guidelines — but it’s aimed at removing content such as hate speech and pornography, not copyright-protected videos. The so-called “super flagger” program came to light last week, in a Financial Times article that said the U.K. government’s anti-terrorism unit has the ability to alert YouTube to multiple videos suspected of containing “extremist material.”

Left - the Cariou original: right - Prince's transformation

The 'transformative' artist Richard Prince has reached a settlement with Patrick Cariou, a photographer who accused Mr. Prince of violating his copyrights by using Mr. Cariou’s pictures of Rastafarians as the basis for a series of paintings that sold for millions of dollars. Last year, the United States Court of Appeals for the Second Circuit decided largely in favour of Mr. Prince, who initially was found by a federal court in 2011 to have illegally used the photographs.  The appeals court ruled that of the 30 works by Mr. Prince in question, 25 were permissible under the fair use exception. The terms of the settlement are confidential but it seems none of the paintings will be destroyed. 

The original MP3.com creator Michael Robertson has lost the action brought against him by EMI who sued the new company and Robertson himself in 2007, claiming that the MP3tunes.com operation infringed its copyrights. The former chief executive was found liable for infringing copyrights for sound recordings, compositions and cover art owned by record companies and music publishers once part of EMI Group Ltd. A federal jury in Manhattan found Michael Robertson, the former MP3tunes chief executive, and the defunct San Diego-based company liable on various claims that they infringed on copyrights associated with artists including The Beatles, Coldplay and David Bowie - both for direct involvement in distributing unlicensed files and for being "wilfully blind" to other copyright infringement on his site. The court now needs to decide what damages Robertson should pay to EMI.

And finally, don’t expect US copyright law to change this year — but it might change next year, according to Representative Jerrold Nadler, speaking at the Association of American Publishers meeting in New York said “I expect a number of hearings and not much else,” said Nadler, a Democrat from New York. “I don’t think we’re going to do major legislation this year — maybe next year.” Nadler is a member of the Congressional Subcommittee on Courts, Intellectual Property and the Internet.

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.