THE COPYKAT

Kylie Minogue’s fashion range loses copyright It claim

Australian pop star Kylie Minogue is associated with a range of interior design and bed linen products, produced by Ashley Wilde. In a recent action, this design company went on to sue BCPL, a brand which sells bed linen products, primarily owned by another well-known model and TV star Caprice Bourret. The subject of the litigation was with respect to a duvet cover (the cotton shell which covers a comforter) and a matching runner. The allegations of similarity were concerned with the following factual determinations (as reported in the IPKat):

- The choice of a the pattern of scallop-style pleats in repeating horizontal rows; 
- The relative size of each pleat; 
- The relative spacing between each pleat; and
- The relative spacing between each horizontal row. 

Justice Melissa Clarke firstly went on to establish that a presumption of copying will exist if the works are primarily substantially similar and there is proof of access to the prior work. However, she then went on to reiterate the rule that the question of copying concerns with the quality of the work, and not merely the quantity taken, and whether the intellectual expression and creation of the author is appropriated or not. It is not just the similarities but also the differences which need to be looked at, and the copyright needs to be determined as a whole. The differences cannot be downplayed, as was done in the case at hand.

These jurisprudential notes in combination with the determination that scallop-style pleats were relatively commonplace in the fashion industry and could not be monopolized due to it being a concept (Idea-Expression dichotomy), led the court to reject a finding of presumption of copying. Apart from this, the court found that the expression of such scallop-style pleats in the conflicting designs, in fact, encompassed sufficient differences and were not in any case substantially or extensively similar to bring in a case for the presumption of copying. The differences in the method of pleating the scallops, the number of pleats in the pleated scallops, the size of the pleated scallops and the shape of the pleated scallops, the number of repeated scallop motifs were rendered to be sufficient to avoid a claim for infringement and to establish an original distinct expression of a design made out of the concept of a scallop-styled pleat. In lieu of the same, the court rejected a finding of copyright infringement and Ashley Wilde was unsuccessful in the action.

Interestingly, this case reinforces the importance of factual evaluation and the fine line between inspiration and infringement especially in the fashion industry, to recognize the multitude of possibilities of expression in a copyrightable design and its dominion, and balance the interests of the copyright holder and the general public (other designers in the fashion industry) accordingly. It reinforces the principle of creative freedom and the leeway of experimentation on similar ideas, provided in copyright, to account for designs, which may prima facie seem similar intuitively, but are much more detailed and different when such details are analyzed. The judgment can be found here.

Versace sues Fashion Nova for infringement of the gold “Barocco” print

In yet another infringement action concerning the Fashion industry, Italian brand Versace has sued Fashion Nova to seek a remedy and redress with respect to the copyright infringement of its apparel involving the black and gold “Barocco-57” print, pop-hearts design the “Jungle print dress” that was worn by Jennifer Lopez in the Grammy Award functions. This case has been lodged in the US District Court for the Central District of California, as reported by the World IP review. The claim of Versace revolves around the principle of Fashion Nova deliberately riding on the popularity and renown of Versace’s signature designs and its valuable goodwill and business reputation, to make profits. (Trademark logic?) The use has been alleged to be within the content, text, and meta-tags of the Fashion Nova website, as well as on social media websites, wherein “Fashion Nova” results pop-up upon a search of Versace products, due to this infringing action, resulting in alleged misdirection of consumers. A notice has already served and despite the same, Fashion Nova has not allegedly taken down these infringing designs which are substantially similar to Versace’s copyrights, from its web-portal. Interestingly Kim Kardashian took to twitter to address this claim by tweeting: “ It’s devastating to see these fashion companies rip off designs that have taken the blood, sweat, and tears of true designers who have put their all into their own original ideas.”

David Gilmour involved in a legal battle for the 2015 solo-single “Rattle That Lock”.

In a suit for copyright infringement, Pink Floyd’s iconic guitarist David Gilmour has been sued by French jingle composer Michaël Boumendil, over a four-note jingle, which Gilmour was first exposed to at a French train station and was instantly charmed. According to reports, he had approached Boumendil to seek a license to use the music in a song, wherein the agreement stipulated co-authorship for the resultant song.  In a suit filed by Boumendil it is alleged alleged that instead of replaying the notes (as was stipulated in the licensing contract), Gilmour went on to interpolate the exact recorded notes. The claimant sought damages worth 450,000 Euros. When the court had to decide upon this, it was noted by the court that this infringement suit was a year after the stipulated release of the song, and hence was time-barred. But Boumendil has now more recently appealed this decision and is seeking damages for the alleged unlicensed use of this jingle, and a breach of the contract between the parties.

Jay-Z sues Australian retailer over lyrics

American rapper Jay-Z (Shawn Carter) has filed a copyright infringement lawsuit against Australian Jessica Chiha and her business “The Little Homie”, which sells hip-hop inspired clothing and apparel. The subject matter of infringement refers to the book “AB to Jay-Z” which has been created by this online retail business, to teach kids alphabets in terms of names and pictures of rappers. Since then, their imagery and names have been expended to use in a coloring book as well as clothing retail options. After being served with a legal notice, the company has maintained its defence of transformative use and fair use and has resisted the claim, which has consequently landed them in court. As far as the claim over lyrics is concerned, the lawsuit refers to the famous quote by Jay- Z: “If you’re having girl problems, I feel bad for you son, I got 99 problems but a bitch ain’t one”, which has allegedly been appropriated by the Children’s book, as it displays on its front page a quote on the same lines, which states: “If you’re having alphabet problems, I feel bad for son, I got 99 problems but my ABC’s ain’t one.”

These actions and use of the image, likeness, and quotes purported by Jay-Z have been alleged to be “a deliberate attempt to trade-off the reputation and goodwill of Jay-Z for own commercial gain”. As reported by Pitchfork, there have been multiple cease and desist notices sent to Chiha, however this retail business is adamant of this use being fair.

Can a claim of fair and transformative use subsist on the facts? It seems so - however, the main issue before the court would be the task to balance the transformative use factor with the commercial advantage factor of fair use and the acknowledgment of a violation of the publicity rights of Jay-Z. Use in clothing, unauthoriasedly, raises a direct claim under violation of Publicity rights, but as far as the use of likeness in the Children’s book is concerned, there is no direct commercial benefit accruing out of the use of the likeness of Jay-Z and it can be argued to be merely incidental and a transformative use of his identity. It will be interesting to see how this case shapes up in court.

Indian Production House Yash Raj Films booked for an alleged failure of royalty payments to the tune of 100 Crores to Authors

The Indian Performing Rights Society, which represents composers, lyricists and music producers has accused Bollywood production house YRF of unauthorisedly collecting and not distributing royalties worth 100 crores, legitimately belonging to authors  as reported by the IPRMENT law blog. A First Information Report has been filed before the Mumbai Police Economic Offences Wing. Further, an allegation of pressurising artists to enter into signing illegal agreements has also been raised. The FIR claims that while YRF managed to extract royalties from TV broadcast platforms, it hasn’t been able to collect the same from telecoms, radio stations and music streaming platforms to pay up. The core issue involved here is the non-membership of YRF in the IPRS collecting society, which is one of the major copyright societies indulging in revenue distribution. The lacunae is primarily because of the Indian Copyright Act as although it intends that royalties must be paid to the authors via a copyright society, it does not explicitly state so. The Copyright Act does not take into account the following questions, as reported in the IPRMENT law blog:

Who is supposed to pay these non-assignable and non-waivable royalties?
Who is supposed to collect these royalties?
Are authors and the assignee of their works compulsorily required to become members of a registered copyright society to claim royalties or can they continue dealing in their own works without becoming members 

Hence, due to no statutory compulsion to act through a copyright society, such dubious practices are being entered into by the Production houses, which have allegedly denied authors their claim to royalty. Recently, music composer/singer duo Salim-Sulaiman came forward in a journalistic report to state that they haven’t indulged in a work-based relationship with YRF in the last 4 years due to continuous non-payment of royalties, in spite of having allegedly collected the same. Such practices deny the authors their inalienable right to reproduction and right to receive royalty, on such assignments and the prime reason for the same is the lacunae and vagueness in the drafting of the Copyright Act of India.

 $1 Billion Lawsuit on Spotify by PRO Music Rights and Sosa Entertainment

A law suit has been filed by PRO Music Rights, LLC and SOSA Entertainment, LLC alleging that Spotify failed to pay royalties on over 550,000,000 streams. Pro music rights intends to ask a Florida based jury at the trial to hold Spotify responsible for its conduct and alleged infringement, and unfair and deceptive trade practices. The case was filed on 25th November at the United States District Court for the Middle District of Florida. The suit involves an allegation of removal of content for anti-competitive reasons, engaging in unfair deceptive and business practices and inter alia refusing to pay royalties - and publicly performing songs without a licence. According to the petition, Spotify removed the Plaintiff's profile without an advance notice without ever informing the claimant why these songs were removed. The Plaintiff's songs had genuine 550,000,000 streams before being removed an  was one of the most popular playlists. The petition further states:

“As it knows and claims to do, Spotify is required to remit royalty payments to Plaintiffs for the streams of their songs and to obtain public performance licenses for the public performance of songs on its platform. To date, however, Spotify has not paid full royalties for the 550,000,000+ streams of Plaintiffs’ songs on Spotify’s service”

It has also been alleged that the motive for removal of all these songs is linked with its equity deal with Music and Entertainments Rights Licensing Independent Network in order to pressurize MERLIN to terminate its contract with SOSA, as high stream counts from unknown independent acts do not generate close to the same revenue for Spotify from advertisements, as compared to mainstream acts, and do not offset the royalties owed. Further, it was alleged that 99% of the users responsible for the 550,000,000 streams of Sosa’s songs were ad-supported users rather that subscription users. Is this as a result of such discrimination on the part of Spotify against less established artists?  the Plaintiff thinks so and says it's musicians have suffered economic loss. This has been alleged to be an anti-competitive practice to oust independent musicians from the music market, merely due to less revenue for streaming services. In continuation, Sosa has also alleged that”

“Spotify continues to unilaterally profit from Plaintiffs’ music; despite purporting to remove Plaintiffs’ content, some of the Plaintiffs’ music continues to stream without license via Spotify-generated playlist(s), and without any compensation made to copyright holders, in blatant disregard of the Copyright Act. Spotify is legally obligated to pay royalties for streaming music.”

This battle will be interesting for the survival and growth of the Independent music circuit. The math can be done here:

1)    Mainstream artists are targeted by companies with a higher marketing budget, due  to the expectation of more number of streams and popularity, resulting in more consequent advertisements (of the company). These companies offer large sums to Spotify, in lieu of the advertisements – which gives Spotify its revenue 

2)    Independent Artists and non-mainstream music artists have a low budget advertisement attached to them, which provides less money per stream for Spotify, due to budget advertisement companies being associated therein (less revenue per stream as compared to mainstream songs).

3)   Royalties to be paid in lieu of streaming is equal because of it being a statutory amount and does not in any way vary upon the artist being mainstream or not. 

4)  This leads Spotify to a situation that with  the enhanced popularity and number of streams of non-mainstream and indie music as well (550,000,000), they get less revenue for a large number of streams (as compared to what they would have gotten, had the streams been on mainstream songs), and they have to pay equivalent royalties to both mainstream as well as indie artists.

5)  The ultimate conclusion out of this analysis is the low earning on the part of Spotify through indie artists, and equal royalties to be paid, which has led them to oust them from the market, in order to attract more streams for mainstream artists only which would lead to a higher ad revenue per stream for Spotify (when balanced with the amount of royalty to be paid, which remains constant).

At the core of this is the allegation that Spotify is contributing to the already persisting anti-competitive and unequal structure of distribution of music, wherein mainstream artists who have more funds to produce and market the music and are signed to a bigger record label are able to flourish, whereas independent artists are left marginalised - and fail to get fair compensation - or reach.

From the point of view of a musician, this is a sad state of affairs, where mere economic benefit is being preferred on the cost of access of more genuine and original content to the public, which was, in fact, the goal of copyright in the first place. This arguably de-incentives the musicians (especially independent ones) from creating music (to some extent),  due to the lack of marketing capability (although money is not the sole incentive), and is not competitive or ethical practice. True or not - does that matter in a court of law?

It will be interesting to see how the court approaches this and if it enters into this socio-economic aspect of survival of musicians who do not have much access to funds to market their music and content.

Plaintiff’s petition can be read here.

This Copykat by Akshat Agrawal

THE COPYKAT

The planned and now revised and re-revised EU copyright law reforms have been repeatedly criticised for bringing in new laws that will 'break' the internet due to provisions that Google in particular finds very worrying. But they are just one voice (albeit one very noisy and well funded voice) clamouring for the proposals to be watered down or ditched altogether. As reported by The Verge, Google has released an image showing the implication of the directive on its search engine. The image clearly shows how its “news segment” will look like. It involves an empty description area wherein the 'transformative' usage by Google of short snippets of news in its search web page would disappear. The screenshot showed that if a user in the EU searches “latest news”, Google would merely be able to provide links to the web sites which display such news, without any short summaries, stories, headlines, pictures or videos. This has been claimed to have a majorly adverse impact on the way Google perceives its users to use its platform. Why so? Well Article 11 of the Copyright Directive gives publishers the right to demand paid licences for using snippets of their stories, which definitely defeats the transformative use claim by Google.  Google has claimed this will lead to two choices: Either paying for licenses - or no snippets at all. This would thus mean a massive change in the whole way Google is used and is expected to be used as a platform for the dissemination of information and Google says that surely this is definitely a regressive path.  Google has further reportedly threatened to pull its operations out of the EU if the “link tax” (Article 11) provisions are passed. Another development came from the January 18th meeting when 11 countries (including Germany, Belgium, the Netherlands and Finland) voted against the reforms, concerned about the now near infamous Article 13 and the aforementioned Article 11. A direct implication of this was then the cancellation of the approval meeting which was scheduled to take place on the 21st of January. Another major opponent of this approval was Italy which didn’t seem to be very impressed with the strict copyright proposals. It's STILL all to play for!

But of course its not all one way PR traffic: 95 Leading European filmmakers including Alejandro Amenabar, Marco Bellochio, Cristian Mungiu, Pawel Pawlikowski, Alan Parker, Betrand Tavernier and Susanna White, have signed and sent an open letter calling on the European Union (EU) to honour a key part of the pending  Directive - Article 14 - which  calls for “fair and proportionate” payment for work throughout its commercial life. And CMU Daily reports that the global music industry has said proposed Article 13 compromises are a backwards step: An open letter says: “After years of hard work, the Copyright Directive is at a very critical point. The proposed text circulated ... falls below the standard of the three texts produced by the three European institutions and would not be an acceptable outcome of the negotiations” adding “The European Union cannot miss this unique opportunity to achieve one of the key objectives of the European Commission proposal, which was to correct the distortion of the digital market place caused by user-upload content services. Therefore, the undersigned call on negotiators to urgently make substantial changes to the 13 Jan proposal by the Romanian Presidency in order to get the directive back on the right track” with signatories including music industry organisations IAO, ICMP, IFPI, IMPALA and IMPF with support from the film, media, broadcast and book sectors.

Canadian Prime Minister Justin Trudeau's appointment of a former law professor as Minister of Justice and Attorney General has raised some eyebrows, not least as the appointee, David Lametti, once wrote in a paper that file sharing “is not necessarily theft, piracy or even wrong.” Lametti, is a founding member of McGill University’s Centre for Intellectual Property Policy (CIPP), where he served as director from 2009 to 2012 and although Music Canada and SOCAN provided only careful statements about Lametti’s appointment, some creators and music executives are concerned about the potential effect on the current Canadian copyright reform process, now in its final stages. In Lametti’s 2011 paper, The Virtuous P(eer): Reflections On The Ethics Of File Sharing, he wrote that his “strong ethical intuition is that one should never put up a digital barrier or fence around music, whatever the law might allow.” He also argues that “current normative structures ought to be adapted to reflect this more profound understanding of the impulse to share music.”

The Delhi High Court has restrained a website from putting on  copies of The Times of India and The Economic Times on its pages. In an interim direction, Justice Manmohan barred the website and instructed the registrar GoDaddy to to lock the ownership of the domain name www.sscias.com. The law suit seeks a for permanent injunction for trademark infringement, copyright infringement and unfair competition.

Lucasfilm and Disney have lifted the copyright claim that they recently placed on Star Wars Theory’s Darth Vader 'Fan Film'. In fact the claim was driven by Disney as Star Wars Theory had released his Darth Vader Fan Film (which as of now, has been viewed over 7.2 million times on Youtube)_ with the permission of Lucasfilm who gave him their blessing as long as the film was made it without crowd funding and the video was un-monetized.  But then Disney and music publisher Warner Chappell claimed that a rendition of the Imperial March score infringed copyright and seemed to be seeking to have the entire film taken offline. It seems pressure by Lucasfilm led to a change of heart by Disney, and the film stays up! 

In Hong Kong, a Harry Potter-themed cafe is being sued for copyright infringement by film studio Warner Bros. The 9 ¾ Cafe in Mong Kok, which opened in 2017, is covered in paraphernalia from the hit books and movie franchise The Hollywood giant says the cafe’s owners are infringing on its copyright, even though the cafe does not claim any relation to the franchise. The South China Morning Post says the claim demands an unspecified sum of damages, a removal order plus multiple injunctions.

It seems that Google is looking for a final resolution in its ongoing legal battle with Oracle, with  Google asking the Supreme Court to make the final call in the dispute. The company has announced it has filed a petition with the Court, asking the USA's most senior court to determine the boundaries of copyright law in code.

My thanks to our intern Akshat Agrawal for his assistance with this update 

The International Framework for the Protection of Authors: Bendable Boundaries and Immovable Obstacles

The International Framework for the Protection of Authors: Bendable Boundaries and Immovable Obstacles

Thursday June 7th   17.30-19.30   CITY UNIVERSITY LAW SCHOOL 

The international framework within which authors’ rights in their works are protected and exploited is often the topic of debate in the context of  the reform of national copyright laws: Professor Sam Ricketson takes a pragmatic approach to identifying the “immovable obstacles” to reform, while seeking to expose the potential flexibilities and gaps – the “bendable boundaries” - within the international framework that may enable the realisation of some, at least, of the objectives of those who would seek to reform and reformulate copyright laws. It may be that there is a brave new world for the protection of authors’ rights that is embedded within the interstices of the present international framework that is waiting to be uncovered and realised. Why not attend this free seminar to find out more!

Professor Sam Ricketson (University of Melbourne) holds degrees from the Universities of Melbourne and London, and is a Fellow of the Academy of Social Sciences of Australia and Australian Academy of Law. 

Location: AG07b
College Building
City, University of London
St John Street

London

THE SEMINAR IS FREE BUT YOU NEED TO SIGN UP FOR THIS EVENT

https://www.city.ac.uk/events/2018/june/the-international-framework-for-the-protection-of-authors-bendable-boundaries-and-immovable-obstacles

The CopyKat - Part Deux

It's not often we report on the Pagan community, but the Wild Hunt tells us of concerns about Pagans violating copyright protections of Pagan books which have "resurfaced in a big way, with thousands of volumes being uploaded by the owner of one popular Facebook group". Authors and publisher’s agents who knew that no such permission had been granted have tried to get the files removed, and after several days those attempts appear to have been successful, to the disappointment of some group members. More here.

Rogers Communications wants the Supreme Court of Canada to reconsider a copyright ruling on pirated content that internet policy experts say could raise prices for law-abiding consumer. The Financial Post reports that the Toronto-based communications giant has filed for leave to appeal a Federal Court decision that stipulated internet service providers must turn over subscribers’ identities for free if copyright holders suspect them of copyright infringement. the Federal Court ruled internet providers could not recoup their costs because the fee could potentially make it too expensive for copyright holders to go after illegal downloaders. Instead, it suggested internet providers pass the costs along to all consumers – even those that do not infringe.

The Premier League in the United Kingdom is very very big business, with a large of the revenues provided by the commercial deal for match TV rights struck with Sky TV and BT.  and the FAPL will go to great lengths to protect those rights. With the start of the new Premier League season, the fight against illegal IPTV streams has stepped up, with ISPs being told to block streams of copyright content in real time - and this seems to have worked, with substantial disruption for viewers hoping to catch matches using these Kodi or web-based streams over the first weekend of the new season. TorrentFreak reports that several streams went dark within minutes of matches starting, leaving providers of the illegal streams to scramble to find new domains to host their content. With the recent closures of piracy-facilitating Kodi add-ons, it's looking like the days of being able to easily stream 'free' premium sports content might be coming to a close, although there are always people willing to use VPNs to evade the blocking abilities of the UK's ISPs. UPDATE - the Mirror says that 3 million watched the much hyped Mayweather / McGregor fight on at least 239 illegal streams. 
 
US President Donald Trump has instructed his trade envoy to examine China’s policies and practices concerning US intellectual property, a promise he made during the 2016 election campaign. The presidential memorandum signed tat the White House directs US Trade Representative Robert Lighthizer to “examine China’s policies, practices and actions” when it comes to transfer of US technology and “theft of American intellectual property” and use “all options” to protect US interests with Trump saying “We’re taking firm steps to make sure we protect the intellectual property of American companies and very importantly, of American workers” and “The theft of intellectual property by foreign countries costs our nation millions of jobs and billions and billions of dollars each and every year.”

The dispute between the major record companies and mixtape sharing app Spinrilla continues, with the former’s request for access to the latter’s source code high on the defendant’s current list of specific gripes. Interesting - the defs say this "The source code is the crown jewel of any software-based business, including Spinrilla. Even worse, plaintiffs want an ‘executable’ version of Spinrilla’s source code, which would literally enable them to replicate Spinrilla’s entire website. Any plaintiff could, in hours, delete all references to ‘Spinrilla’, add its own brand and launch Spinrilla’s exact website”.  More on CMU here. 

Songwriter groups in the USA and elsewhere have hit out at the Recording Industry Association Of America (RIAA) over its submission to an official review of the moral rights of creators in the US. The songwriter organisations, including BASCA in the UK, say that the major record companies in the US are pursuing an anti-songwriter agenda on this point, while concurrently relying on vocal support from the songwriting community when it comes to lobbying for safe harbour reform. Both the Motion Pictures Association of America (MPAA) and the RIAA are against the introduction of statutory moral rights for artists. They believe that the current system works well and they fear that it’s impractical and expensive to credit all creators for their contributions. Stark hypocrisy from the record labels in the US? Or too big a task to manage? BASCA say "even though the US signed up to the Berne Convention in 1989 it chooses NOT to recognise moral rights, saying they are confusing.  There really isn’t anything confusing about crediting the original creator of a song folks!!  So understandably the writer organisations in the US get very excised, rightly so, about this ongoing scenario.  The US Copyright Office this year conducted another study into the issue with some very strong statements from creators and submissions by writer organisations in support of the US finally recognising moral rights.  However the RIAA in its wisdom decided to continue to reject this position .... Thus writers from across the US, Canada, the UK and Europe – organisations representing many tens of thousands of songwriters and composers of all genres – have come together in an unprecedented alliance to explain to the RIAA why this is wrong and damaging to the very people whose works the music industry is built on."

2016 THE COPYRIGHT YEAR

2016 - it's been another frantic copyright year - and buzz words and themes for the twelve months included 'the value gap' between the content industries and the technology giants, linking, that 'new public', fair use, 'transformative' art, and the ongoing reform of copyright laws - in Europe, and in particular reforms to the Digital Millennium Copyright Act in the USA. Here at the 1709 Blog we welcomed our first ever interns in October - and they are blogging already - so thank you Tibbie McInytre and David Liao - the CopyKat is grateful to them both for their continued stroking and petting. So, onwards and upwards - we've got monkeys and pirates, tattooists and cheer leaders, turtles and trolls, and Trekkies and transformers enjoy on our way to the year's denouement. 

Naruto by ?

The year kicked of with the news that the monkey was back! PETA, the not for profit organisation that campaigns to for animals' rights, failed in its attempt to get copyright in the infamous monkey selfie transferred to the black macaque monkey Naruto, who took the snap.  US District Judge William Orrick ruled that the monkey, who borrowed British photographer David Slater's camera and took the selfies, cannot own the copyright in the pictures. During a brief hearing the judge, dismissing the suit, stated: "I'm not the person to weigh into this. This is an issue for Congress and the president. If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that." And Marie-Andree told us that yet another photographer (this time Donald Graham) had filed a copyright infringement suit against notorious 'appropriation artist' Richard Prince, the Gagosian Gallery, and its owner Larry Gagosian. Graham claimed that Prince used the “Rastafarian Smoking a Joint” photograph without permission in the New Portraits exhibition. Prince presented inkjet prints on canvases of images he had found on Instagram, complete with his own comments as @richardprince4nd. 

In February the Higher Regional Court Munich (OLG) decided that YouTube and its service cannot be called to account for any user generated copyright infringements. Instead, the judges found that the sole responsibility lies with individual uploaders, even though German collection society GEMA was keen to point out "YouTube generates substantial economic profits by making the videos available". Based on this decision, YouTube is currently not held financially accountable within the current legal framework when works protected by copyright are used on the platform. But read on! In the USA, despite a $25 million rebuke by a federal jury in December 2015 for contributing to piracy on its Internet service, Music publisher BMG said that Cox Communications had not learned its lesson. BMG said Cox's network continued to be used by its customers for massive copyright infringement, undermining BMG's music sales. The company asked U.S. District Judge Liam O'Grady in Alexandria, Virginia, to grant a permanent injunction to force Cox to stop the illegal file sharing saying  “Now, more than a month later, Cox’s network continues to be the site of massive, ongoing infringement of BMG’s copyrights” and  “This ongoing infringement inflicts irreparable harm on BMG.” For its part Cox wanted the jury's decision reversed as "a matter of law". In the UK, PRS for Music and Phonographic Performance Limited (PPL) confirmed that, following a strategic review commenced in 2015, the two companies would create a new joint venture focusing on serving all PPL and PRS for Music UK public performance licensing customers for both music and sound recording rights. And finally this month, The U.S. Department of Commerce’s Internet Policy Task Force published a White Paper on Remixes, First Sale, and Statutory Damages which addressed three issues: (i)  the legal framework for the creation of remixes; (ii) the relevance and scope of the first sale doctrine in the digital environment; and (iii) the application of statutory damages in the context of individual file-sharers and secondary liability for large-scale online infringement.

Phasers to kill

In March UK record label association the BPI said that its members had issued more than 200m takedown requests to Google for removal of copyright infringing links in just twelve months. The BPI, which represents the three major recorded music labels, Universal, Sony and Warner as well as many independent labels, sent its first takedown request to Google in July 2011. In 2015 the BPI sent 65m takedown requests and said they are now, perhaps understandably, calling for a more permanent solution. Donald Trump’s presidential campaign was sued by an award-winning wildlife photographers who said Trump's team were using their copyright-protected image of an American bald eagle without permission. Attorneys for Wendy Shattil and Robert Rozinski filed the civil complaint in federal court after watching a Trump presidential rally on television and noticing that an attendee was holding a campaign sign that incorporated one of their photographs of the national bird. Asim told us that the Paris Court of Appeals upheld a lower court's decision that internet access providers (ISPs) and search engines were obliged to block access and/or remove links to pirate sites and reversed the trial court's decision that the rightsholders (here movie companies) had to bear the costs associated with the implementation of such measures, with the appellate court finding that such costs should be borne by the ISPs.  In the 'Star Trek' case,  the Star Trek rights holders came back with an amended complaint that listed many of the alleged specific instances of infringement by the makers of Prelude to Axanar of what they say are copyrighted elements in Star Trek itself: These include the language and culture of alien races such as the Klingons and Vulcans, the cowl-neck uniform that Majel Barrett wore as the Enterprise’s first officer in the original series episode The Cage, and the concept of “Stardate." Some 57 instances of infringement were listed in the amended complain including the concept of dilithium crystals and phasers. Appropriation artist' Richard Prince responded to the 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 asked the Southern District of New York court to dismiss the case with prejudice as it was an attempt to ‘essentially re-litigate’ his controversial fair use victory against another photographer Patrick Cariou. And John updated us on not one but two public consultations on copyright, one from Brussels and one from the UK 's IPO. The Brussels offering was a consultation on two things, the role of the publisher and the "panorama" right, and the IPOs a further consultation and technical review "on changes to Section 72 of the Copyright, Designs and Patents Act 1988 (which permits the free public showing or playing of a film contained in a broadcast)."

What is the Klingon for
'Copyright' ?

In April the decade-long legal fight over Google’s effort to create a digital library of millions of books appeared to be finally over when the Supreme Court declined to hear a challenge from authors who had argued that the tech giant’s project was ‘brazen violation of copyright law’, effectively ending the legal battle in Google’s favour. Without the Supreme Court taking up the case, a federal appeals court ruling from October, which found that the book-scanning program fell under the umbrella of fair use, stood. Following on from march's reports on the 'Star Trek' case,  Marie-Andree wrote an excellent piece on whether or not the Star Trek rights owners were right to argue that the Klingon Language, “Klingonese or Klingon, the native language of Qo’noS” could be protected by copyright. Could it? Well Marie-Andree cited that 1879 case  Feist Publications, Inc. v. Rural Telephone Service Co., where the US Supreme Court ruled that a compilation of facts may be protected by copyright but only if such selection, coordination and arrangement is original enough: would that cover an invented language?  Well a modicum of originally suffices! And the song that inspired one of America’s greatest freedom fights was made the subject of a battle over its own. A California not for profit organisation filed a class-action lawsuit against the Richmond Organization and Ludlow Music over the copyright to “We Shall Overcome,” a song the Library of Congress calls “the most powerful song of the 20th century, saying that  "the song was written well before anybody copyrighted anything”. Sweden’s Supreme Court held Wikimedia guilty of violating copyright laws by providing free access to its database of photographs of artwork - without the artists’ consent. And some 400 recording artists, songwriters and groups including the Recording Industry Association of America (RIAA) called on Congress to reform existing US copyright law saying that the Digital Millennium Copyright Act (DMCA) was and is obsolete, dysfunctional and harmful,  and calling for stronger measures against the ongoing piracy troubles they face. Christina Aguilera, Katy Perry, Steve Tyler, Lionel Richie and Garth Brooks were just some of music’s biggest names want to make it harder to pirate music online calling for “drastic reforms” to the Act.

In May came the news that Pirate Party MEP Julia Reda had got herself into a bit of a pickle after a tweet on World Intellectual Property Day saying that she was “trying to read Anne Frank’s Diary” but couldn’t because of copyright laws. The Anne Frank Foundation has claimed that despite Anne's death in 1945,  the Diary is still protected under EU law as Anne's father Otto was the co-author of the Diary, he had edited the published editions, and he didn't die until 1980. However, putting aside whether or not the book should be in the public domain,  Canadian poet and head of the Writers Union of Canada, John Degen, pointed out that Ms Reda could of course read the book (available on Kindle for as little as $1.99) - it was just that she did't want to pay to read it - and her 'struggle' somewhat paled into insignificance when compared to Frank's own persecution at the hands of the Nazis. YouTube promised to update its Content ID system - not just to appease the record companies and movie studios who complain about it is remarkably unsophisticated nature (remembering that parent company Google is a leading technology company), but also to appease YouTubers who say that their material is sometimes taken down by mistake, and revenues they are due withheld. Universal Music and Capitol Records obtained summary judgment against IFP and parent company Global Eagle, an in-flight airline music licensing company, and the two recorded music companies could now look forward to a jury deciding the quantum of damages to be awarded, with reports saying this "could be worth hundreds of millions of dollars." And we received our first ever correction over the use of Klingon on this Blog - thank you qurgh lungqIj for your wise and lucid comments. You might begin to suspect there is more than one Trekkie writing for this Blog .........

Is sampling back in vogue?

June began with the news that The Court of Justice of the European Union (CJEU) had been asked to say whether the making available of TV broadcasts in rehabilitation centres should be regarded as an act of communication to the public in Reha Training, C-117/15, essentially asking whether the making available of TV broadcasts by means of TV sets on the premises of a rehabilitation centre fell within the scope of Article 3(1) of the InfoSoc Directive and Article 8(2) of the Rental and Lending Rights Directive; The Grand Chamber's judgment substantially confirmed the Opinion of Advocate General Bot, although not relying on the four elements indicated therein. The Court highlighted that there are some differences between relevant provisions in the InfoSoc and Rental and Lending Rights directives. However, it concluded that there is no evidence that EU legislature intended the concepts of 'communication to the public' differently in these two pieces of legislation. Here the court found on the facts that the operator of a rehabilitation centre had deliberately transmitted protected works to patients by means of TV sets installed in several places on the premises. As such, he was committing an 'act of communication' and; The patients of a rehabilitation centre constitute a 'public' that can enjoy the works broadcast by means of TV sets thanks to the indispensable intervention of the centre operator; This public is also 'new' in that it was not taken into account by the relevant copyright owner. In another case, the question of whether an ISP loses its safe harbour protection because, upon obtaining actual knowledge or awareness of third-party illegal content, it has not acted expeditiously to remove or disable access to such content was posed. The Tribunale di Roma (Rome Court of First Instance) had to decide, and having looked at a range of precedents held that (on the facts) the defendant ISP should be liable for the damages caused to the claimant by such delay. A majority of the U.S. 9th Circuit Court of Appeals decided that Madonna did not violate copyright law when her producer allegedly used a short section of music taken from another recording for her hit song “Vogue”, casting doubt on the strict approach taken by the 6th Circuit Court of Appeals in the leading case of Bridgeport Music, Inc., et al. v. Dimension Films. Guns N Roses and now AC/DC frontman Axl Rose filed six DCMA take down notices in what was widely seen as an attempt remove an unflattering photo of him from a 2010 Canadian concert from the web. And TechDirt reported on two more decisions from the US courts that confirmed that "legal threats against alleged infringers, based on "nothing more than IP addresses", will not succeed in the courts.  In the first case, New Jersey Judge Kevin McNulty disagreed with Malibu Media's request for default judgment, pointing out that the limited information it was working with could not rule out a successful defence being raised by the accused infringer and Oregon Magistrate Judge Stacie Beckerman said that as only facts the Plaintiff pleaded in support of its allegation about an alleged infringer was that he was the subscriber of the IP address used to download or distribute the movie, and that he was sent notices of infringing activity to which he did not respond "is not enough". And befuddled by lies, exaggerations, suppositions and multiple nonsense advanced by politicians and commentators of all hues, England voted for Brexit. 

Black and gold

July saw new copyright legislation come into effect in Cayman to provide greater legal protection for Cayman’s musicians, visual artists and others in the creative fields, the first step in modernising intellectual property legislation. Australia’s Full Federal Court confirmed digital data streams are not protected by the Copyright Act. The court upheld Justice Annabelle Bennett’s December 2014 ruling that held that copyright did not subsist in digitally streamed broadcasts. Commissioner of Taxation v Seven Network Limited revolved around whether payments made to the International Olympic Committee for broadcasting rights by Seven were royalties and therefore taxable. The court found that “a cinematograph film in which copyright subsisted under the Copyright Act is not made until the first copy is made” and that there was no way for the broadcast to be reproduced without an external receiving device. And in a fascinating contribution our guest blogger Divya Mirlay (Christ College, Bangalore) looked copyright in colours - and the specific copyright implications surrounding Vantablack - the blackest of all blacks.

In August, tattoo artists Solid Oak Sketches lost an important battle in their claim against the animators behind the NBA 2K video game series - which feature  several NBA stars including James, Kobe Bryant and Eric Bledsoe - tattoos and all! The tattoo designers were seeking actual damages in an amount to be determined at trial, or statutory damages and attorneys' fees — but a New York federal judge Laura Taylor Swain ruled out the latter saying "[I]n order to obtain statutory damages and attorneys' fees, a plaintiff must have registered its copyright prior to the alleged infringement" and the copyrights in the tattoos were not registered until 2015 - AFTER the alleged infringements began. Cox Communications were ordered to pay that $25 million dollar penalty for copyright infringements to the music rights management company BMG by a federal judge. The ruling follows the earlier jury decision which found Cox liable for illegal movie and music downloads by its customers. The company's behaviour amounted to wilful infringement of copyright in the eyes of the jury. The Eastern Virginia District Court dismissed Cox’s appeal of the earlier verdict, and ordered Cox to pay up - a ruling which may have widespread repercussions for online copyright infringement in the US as the court decided that Cox did not do enough to stop users pirating music from BMG, and therefore did not qualify for Digital Millennium Copyright Act (DMCA) ‘safe harbor’ protections. And it came as no surprise that Pharrell Williams, Robin Thicke and TI filed their appeal against the verdict in the 'Blurred Lines' case that saw them ordered to pay $5.3m (reduced from $7.3 million) and pay over 50% of songwriting and publishing revenues to the family of Marvin Gaye, after a jury ruled last year that their song copied Gaye’s 1977 hit 'Got to Give It Up'.

September's headline in Europe was the decision in GS Media (C-160/15) and Eleonora reported that the EU Court of Justice had decided that hyperlinking to content placed online elsewhere is a communication to the public if the hyperlinker had (or should have had) knowledge that the content had been posted online without the consent of the copyright holder. According to the judgment, the Court had freedom of expression and information in mind with its ruling. By requiring knowledge of the illegal nature of the content referred to, internet users linking to it in good faith are meant to be protected. To balance things out, however, the Court also held  that knowledge that the content the link refers to is illegal must be presumed iuris tantum (i.e. until rebutted) if the posting of hyperlinks “is carried out for profit”.  Over on the IPKat Eleonora posted one of her regularly updated and extremely useful tables on linking and copyright (see above!). Staying in Europe, the European Commission published their Digital Single Market copyright reform proposals, including a draft Directive of the European Parliament and Council on copyright in the Digital Single Market. The proposed Directive, alongside the ‘Regulation of the European Parliament and Council laying down rules on the exercise of copyright and related rights applicable to certain online transmission of broadcasting organisations and the re-transmission of television and radio programmes’, represent the European Commission’s efforts to modernise the copyright framework in order to further realise the European Digital Single Market. In announcing the publication, President Junker said: “Artists and creators are our [Europe’s] crown jewels” going on to say “I want journalists, publishers and authors to be paid fairly for their work.” There were many many responses! And then even more! 

In October, Marie-Andree updated us  on the work of the Commission of European Affairs of the French lower Chamber, the Assemblée Nationale who had been looking af report on copyright protection in the European Union, written by Representatives Marietta Karamanli and Hervé Gaymard (the Rapporteurs). And what did the Rapporteurs suggest? Well highlights included an opposition to Julia Reda's suggestion to promote the mandatory harmonisation of exceptions of the rights of reproduction and communication to the public in all the Member States: the Rappurteurs were suspicious of the American concept of 'fair use', because it is unpredictable and “potentially unfavourable to creation” and is even “likely to cause significant damage to the authors” and they "welcom[ed] the proposal for a regulation for cross-border portability of content, which will allow users to enjoy, wherever they are in the territory of the Union, the programs to which they subscribed in their State of habitual residence. But they stress the idea that portability should be strictly temporary, and that temporality must be a precise definition, without which the settlement would disproportionately infringe the principle of territoriality of rights, which is the base of the financing system for the creation, notably in France.” Marie also added another flavour of France, when the French law for a Digital Republic (Loi pour une République Numérique) finally came into force on October 7th. Article 39 modifies article L. 122-5 of the French intellectual property Code, and now recognises some limited freedom of panorama rights - so it is now legal in France to reproduce and to represent, without having to secure the authorisation of the copyright holder, “architectural works and sculptures, located permanently on public roads, made by natural persons to the exclusion of commercial uses." Following on from the turmoil and tussles for the writers of "Blurred Lines" and "Stairway" to Heaven, in her first CopyKat, Tibbie updated us on Ed Sheerhan's attempts to have a $20 million lawsuit over the copyright in his hit "Photograph" dismissed in the Californian federal court. The Court of Justice of the European Union ruled that the doctrine of exhaustion of distribution rights in computer software does not apply to back-up copies.  The Music Managers Forum published 'Dissecting the Digital Dollar Part 2' saying "While recognising that record companies continue to make significant investments in new music, many in the music community believe that there needs to be a frank conversation about how streaming income is shared" and "Many people felt that the share received by heritage artists, session musicians and songwriters needs particular consideration, and that a ‘performer equitable remuneration’ system like that that operates in the radio sector and the ‘contract adjustment mechanism’ proposed in the draft European copyright directive might be ways to address some of these concerns". In Verwertungsgesellschaft Rundfunk GmbH v Hettegger Hotel Edelweiss GmbH, C-641/15, Advocate General Szpunar opined that "the communication of a television or radio signal through television sets installed in hotel rooms does not constitute communication to the public of the broadcasts of broadcasting organisations in a place accessible to the public against payment of an entrance fee within the meaning of that provision." And on the 31st October the question of what is the appropriate test to determine whether a feature of a “useful article” is copyrightable under the Copyright Act was posed to the Supreme Court in Star Athletica, LLC v. Varsity Brands, Inc. We await the outcome with interest.

Transformed?

In November,  the Court of Justice of the European Union (CJEU) issued its decision in Soulier and Doke, C-301/15 which held that Article 2(a) and Article 3(1) of the InfoSoc Directive must be interpreted as precluding national legislation that gives an approved collecting society the right to authorise the reproduction and communication to the public (here out-of-print books) and NOT authors with the right to authorise the making of acts restricted by copyright is incompatible with EU law.  The French Cour de cassation, France’s highest judiciary court, held on that a corporation cannot have moral rights over a work, even if it had commissioned the work or if the work was created by one of its employees.  Roosa Tarkiainen (University of Southampton) penned an excellent update on the CJEU's decision in Microsoft which examined the principle of digital exhaustion as applied to computer programmes, with Roosa opining that the decision "confirmed the rule in UsedSoft that distribution rights in computer programs are extinguished upon sale, allowing for the creation of a secondary market for these programs under Article 4(c) of the Software Directive. "Although questionable on technical grounds, the Court was ultimately carrying out the difficult balancing act between giving effect to free movement in the internal market through the principle of exhaustion, and protecting the rightholder – in this case from being undercut by criminal activities.”  Richard Prince was sued by yet another photographer over the use of a photograph in his New Portraits series. This case is Eric McNatt v. Richard Prince, 1:16-cv-08896, Southern District of New York (SDNY). The case was brought by the founding member and bassist of Sonic Youth, who says Prince downloaded his photograph from the web, where it had been published with a copyright notice, and uploaded it on his own Instagram account.  Prince has since deleted this account. It is claimed that Prince then wrote three lines of comments under the photograph:  “Portrait of Kim Gordon,” then “Kool Thang You Make My Heart Sang You Make Everythang Groovy” and finally added a string of music-related emojis. The Donald Graham v. Richard Prince case filed in January was of course still pending at the SDNY, and in November attorneys for Graham sent a letter to Judge Sidney Stein from the SDNY to alert him of the decision in TCA Television Corp. v. McCollum Second Circuit case (2nd Circ. Oct. 11, 2016), which, in their view, “undermines Defendants ‘motion to dismiss on fair use grounds.” BUT - we still do not have a “so transformative it is fair use” test. In England, the latest case against a publican who used a foreign decoder card to show Premiership football was decided with David telling us that the Court of Appeal maintained the distinction between the lawful enforcement of intellectual property rights from any alleged anti-competitive agreements between FAPL and foreign broadcasters to restrict the supply of foreign commercial cards outside the territory in which that broadcaster operates in The Football Association Premier League Limited v Anthony William Luxton, dismissing the publican's appeal. YouTube and German collection society GEMA finally reached a licensing agreement - meaning German consumers can now finally (legally) use YouTube to stream music videos. And finally - members of 1960s rock group The Turtles settled their action against Sirius XM in California over what the band claimed were unpaid royalties for the use of 'Pre 1972' copyrights - but this was most certainly NOT the end of this long running saga.

The Turtles have kept us busy

So to December, and Mirko Brüß (Rasch) alerted us to the fact that the Regional Court of Hamburg (Landgericht) had just provided us with a decision that appears to be the first ruling from Germany to apply the GS Media principles [Case no. 310 O 402/16] and the court came to the conclusion that (commercial) linking to unauthorised content is infringing, even when it is quite hard to determine the infringing nature of the work that is being linked to finding that the defendant operated a website for commercial gain on which he had linked to a work that was not (in this form) published with the rightholder’s consent, the court concluded that the defendant had "infringed the claimant’s right of communication to the public."  There was a Swedish application of GS Media too, in a case involving a video of a bungee jump, a snapped cord and a plunge into crocodile infested waters! The Center for International Intellectual Property Studies (CEIPI) published its Opinion on the proposed European Commission’s copyright reforms, focusing on the introduction of neighbouring rights for press publishers in EU law and concluding that the EU should "refrain from advancing this legislative action.” Academic publishing houses OUP and CUP suffered yet another defeat in India in their litigation against Delhi University and a photocopy shop when a Divisional Bench of the Delhi High Court ruled against them on appeal - on the grounds that photocopying for educational use was covered under Section 52(1)(i) of the Copyright Act, 1957 - which states that the “the reproduction of any work—(i) by a teacher or a pupil in the course of instruction” shall not be considered as an infringement of copyright. The Central District of California Court heard both parties in the Paramount v. Axanar case. Plaintiffs Paramount Pictures and CBS Studios moved for partial summary judgment for direct, contributory and vicarious copyright infringement claims against Axanar Production and its owner Alec Peters. The Defendants moved for summary judgment - noting the “longstanding tradition of Star Trek [f]an [f]iction”,  and one argument is that their film is "transformative - going where no man has gone before”. Andy brought us up to date with the most public of all the copyright trolling sagas  - here the news that the two surviving attorneys behind the 'Prenda Law' operation, Paul R Hansmeier and John L Steele, who had already repeatedly annoyed numerous US Judges, were now facing federal indictment on charges of wire fraud, mail fraud, conspiracy to commit mail fraud and wire fraud, conspiracy to commit perjury and suborn perjury, and conspiracy to commit money laundering. And yet another decision in the 'Turtles' cases - here New York's highest court ruling that Sirius XM does not have to get permission, or pay compensation, to the owners of pre-1972 music recordings in order to play their tracks - The Court of Appeals determined that New York common law does not recognise a "public performance right" in their decision in Flo & Eddie v. Sirius XM Radio, overturning Southern District Judge Colleen McMahon's decision which had denied Sirius' motion for summary judgment in 2014, when McMahon found that New York common law did provide a public-right performance. which at the time concurred with the ruling by U.S. District Judge Phillip Gutierrez in California that California state law, as it is written, gives the owner of master recording exclusive performance rights. This though, was contrary to the ruling by U.S. District Judge Darrin Gayles in Florida who ruled in favour of SiriusXM's, saying he understood why his judicial colleagues in other states ruled differently, noting that California and New York are creative centres of culture, and laws have been enacted there to protect artistic rights, but that there was no legislation or case law supporting such a property right in Florida and nor would he create one, saying that is the job of the Florida state legislature. The majority of New York's senior court has now taken the same approach - there is no such public performance right in New York state - and they were not about to create one. 

Donald Trump by Gage Skidmore

As the year ended the content owners, included movie companies, publishers, recorded music labels, games companies and television groups continued to press for “strong protections for intellectual property rights”. Nineteen US music industry organisations delivered an open letter to President-elect Donald Trump pointing out that the likes of YouTube, Google and Facebook have thrived on 'free' music and what they term the "value grab", and that "sophisticated technology corporations can do better" at fighting piracy, and and shouldn't be able to hide behind legislation such as safe harbor - which has arguably allowed the technology and telecoms giants to grow and grow at the expense of the music industry and noting "Strong protection for intellectual property rights will assure growth in both creativity and technology, benefiting the American economy as a whole." The EFF had their own take on this, and at the same time, the tech trade groups penned a letter to U.S. regulators warning against proposed European Union copyright reforms sating “The Commission’s Proposal on copyright in the Digital Single Market risks undermining trans-Atlantic commerce and internet openness” in a letter that was sent to Secretary of State John Kerry, Secretary of Commerce Penny Pritzker and U.S. Trade Representative (USTR) Michael Froman. The letter's signatories included the Computer and Communications Industry Association (CCIA), Consumer Technology Association (CTA), Information Technology Industry Council (ITI) and the Internet Association (IA) — groups that represent a number of major tech companies including Google parent Alphabet, Amazon and Facebook.

We have lost some true giants of music this year, and David Bowie and Prince are just two of the outstanding creative talents who passed on. I write this on the news of the untimely death of George Michael aged just 53, another sad sad loss. So all we can do is wish that you 'live long and prosper'.
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You can catch up with Eleonora's 2016 Copyright Awards on the IPKat here. 

And here's a link to the EFF's This Year in U.S. Copyright Policy: 2016 in Review


As ever - readers will have their own views on what should (or perhaps should not) be in the copyright year. The CopyKat writes from a UK/US, music industry and common law perspective: So please let us know if you think something important is missing - comment is free on the 1709 blog, but please be polite and thoughtful!