Paris Court of Appeal confirms that Koons’s 'Naked' sculpture infringes copyright in 'Enfants' photograph, rejecting freedom of the arts and parody defences

Paris Court of Appeal confirms that Koons’s 'Naked' sculpture infringes copyright in 'Enfants' photograph, rejecting freedom of the arts and parody defences

By Eleonora Rosati writing for the IPKat and first published on the IPKat here 

Last week, the Paris Court Appeal ruled (decision No 152/2019) in favour of the estate of late French photographer Jean-François Bauret in proceedings brought against, inter alia, US artist Jeff Koons (an artist who, as readers will know, has been sued a few times for copyright infringement: see, eg, here, here, and here). 

The action related to the unauthorized reproduction of a photograph (Bauret’s ‘Enfants’, shown below on the left hand side) in a sculpture (Koons's ‘Naked’, below on the right hand side). 

'Enfants' (L) and 'Naked' (R)

The defendants had advanced a number of arguments, including that: 

- ‘Enfants’ is not original; 

- even if it was, ‘Naked’, would not incorporate any original elements thereof; 

- even if prima facie infringement was established, freedom of the arts and parody would prevail over copyright.

The court rejected them all. Let’s see what happened in greater detail. 

Background 

In 1970, Bauret realized a black-and-white photograph titled ‘Enfants’. No print of the photograph was sold, but in 1975 the photographer authorized the making of postcards carrying the image of the work. 

In 2014, the Bauret estate found out that Jeff Koons had realized a porcelain sculpture, ‘Naked’, which was similar to the ‘Enfants’ photograph. Koons’s work had been made in 1988 in 4 copies as part of the Banality series, a readymade collection of artworks that contains a mix of pop art and kitsch. 

The sculpture was never exhibited in France, though in 2015 it should have been on display in an exhibition at the Centre Pompidou in Paris. 

The Bauret estate sent a warning letter to both Koons and the museum. For reasons linked to damage during transportation, ‘Naked’ was not included in the exhibition in the end. The museum subsequently also removed the image of the sculpture from the exhibition catalogue. 

A lawsuit followed and, in 2017, the TGI Paris partly ruled in favour of the photographer’s estate. Both parties appealed. 

Aside from issues concerning the personal liability of Koons, the judgment is particularly interesting as far as substantive issues of copyright subsistence and infringement are concerned. 

Originality of ‘Enfants’

As regards the protectability of the photograph, the defendants had submitted that Bauret had failed to express his own personal touch. The choices made were not sufficient for the work to be considered his own intellectual creation, in that the photograph represented a ‘spontaneous pose’ assumed by the two children and the estate had failed to demonstrated where the originality of such creation would lie. 

The court disagreed, and held that Bauret’s work revealed a new concept of nude, which is raw and devoid of any sexual connotation, and such as to disclose the personality of the author. Among other things, the particular use of the light was meant to confer some ‘sculptural’ character to the photograph and the overall composition (including the pose and expression of the children) served to add a ‘geometric’ dimension to the work. According to the court, the latter in particular served to dispel any idea that the pose of the children would be spontaneous: rather, they had been directed by the photographer to assume a certain pose and expression. 

In light of all this, like at first instance, the photograph was found to be original and protectable. 

Prima facie infringement

The claimants pointed to the several similarities between the photograph and challenged the relevance of the argument, made by the defendants, that the different character (real vs fictional) and message (children’s innocence vs Adam & Eve) conveyed by, respectively, the photograph and the sculpture would exclude the recognizability of the former in the latter (it should be noted, however, that Koons never denied that he had had access to the photograph). 

The defendants submitted that the sculpture had not reproduced anything that would confer originality to the photograph, and highlighted the differences between these two, including the colour, dimensions (a 2D photo vs a 3D sculpture) and size ('Naked''s height is 1m), as well as other differences (hair colour, navel, children’s gaze, position of the hands, background, elements in the composition). 

The court disagreed, and found that the sculpture had actually incorporated the “essential features” of the photograph, which constituted its original character. 

Defences 

Copyright and freedom of expression 

The court also considered an important point: to what extent can freedom of expression – including freedom of artistic expression – restrict or even trump copyright protection? 

To answer this, the court followed a similar approach to the one indicated (correctly) by the Court of Justice of the European Union (CJEU) in its recent Grand Chamber rulings in Funke Medien, Spiegel Online, and Pelham [Katposts here, here,  and here] notably that only available copyright exceptions and limitations can be relied upon in an infringement action, and that it is not possible to invoke directly fundamental rights and freedoms or a ‘fair use’ of a work to trump the application of copyright's exclusive rights. 

In this sense, like the CJEU, the Paris court confirmed that the balance between different rights and freedoms is internal to the copyright system, and has been undertaken by legislature when envisaging available copyright exceptions and limitations. 

In all this, the court also considered that the unlicensed use of the photograph by Koons was not “necessary” for the exercise of his own freedom of expression. 

Parody 

The defendant had also raised an argument that the use at issue could qualify as parody. The court referred to the 2014 CJEU Deckmyn decision [Katposts here] and the requirements that, for a work to be considered a parody, first, it must evoke an existing work while being noticeably different from it and, second, it must constitute an expression of humour or mockery. 

The court considered that neither requirement would be fulfilled in the case at issue. 

'Chats', by Merpel

Comment 

The decision appears correct from a substantial standpoint and is also compliant with case law of the CJEU. The court correctly applied the Painer test (though it did not expressly refer to that decision) for determining originality of a photograph, by considering the ‘free and creative choices’ that the photographer had made in the pre-shooting phase, when taking the photograph, and in the post-production phase.

It also appropriately applied (again, without mentioning them expressly), the CJEU holdings in Funke Medien, Spiegel Online, and Pelham. 

In all this, the most interesting aspect of the decision probably relates to the application of the CJEU Deckmyn decision. As mentioned, one of the characteristics of a parody is that it must constitute an expression of humour or mockery. The CJEU did not clarify whether this requirement is fulfilled when an alleged parody pursues a humorous intent, or whether it is also required that it achieves it (as the Advocate General had suggested in his Opinion). 

If the test was ‘intent’, then the exception under Article 5(3)(k) of the InfoSoc Directive would be broader than if a humorous ‘effect’ was also required. Above all, requiring just intent would be better compliant with the need to safeguard parody as a means to exercise freedom of expression. As I discus at greater length here, the difficulties that might arise should a humorous effect be required, lead to the conclusion the correct test under Deckmyn is that of a humorous ‘intent’. 

In its decision the Paris Court of Appeal suggested that both intent and effect might fall within the concept of ‘expression of humour or mockery’ when it stated that: “La parodie doit aussi présenter un caractère humoristique, faire oeuvre de raillerie ou provoquer le rire” (“The parody must also have a humorous character, make fun of or provoke laughter”). So, an acceptable parody might perhaps be both one that makes fun without necessarily provoking laughter and one that provokes laughter without necessarily making fun. This might be an interesting take worth elaborating further in future case law. In all this, however, neither was the case of ‘Naked’.

The IPKat thanked Stéphanie Legrand, who represented the Bauret estate in the proceedings, for kindly providing a copy of the decision of the Paris Court of Appeal

THE COPYKAT

The makers of a 'Grease' spoof have gone to the courts in the US seeking confirmation that their show is covered by the doctrine of "fair use" in retaliation to a 'cease and desist' letter from the publishers of the original musical. Grease, made world famous by the 1978 romantic comedy movie starring John Travolta and Olivia Newton-John is based on the 1971 musical of the same name by Jim Jacobs and Warren Casey. Theatre publisher Samuel French, now owned by Concord, represents the rights in the original musical.  According to Sketchworks which created the spoof 'Vape: The Musical'  the new production "uses millennial slang, popular culture, a modern lens, and exaggeration to comment upon the plot, structure, issues and themes of 'Grease' and to criticise its misogynistic and sexist elements". But Sketchworks say their argument that the play was a parody of Grease failed with Concord's lawyers and indeed the theatre that was due to host the spoof was putt off by the cease and desist letter. Sketchworks now wants "a declaratory judgment of fair use so that it may perform and otherwise exploit 'Vape' without further delay".

Buste de femme (Dora Maar) by Pablo Picasso

And the San Fransisco Chronicle reports that the San Francisco art editor who reprinted and sold copyrighted photos of paintings by Pablo Picasso as part of a reference book did have the right to do so under U.S. law - and that means he does not have to pay damages of $2.68 million ordered by a French court. In 2012 the court in Paris ruled that Alan Wofsy, had violated a previous order against making any commercial use of the photos, and ordered him to pay damages to the copyright-holder. Nearly 16,000 photos of Picasso’s works, taken from 1932 to 1970, were published in a 22-volume catalog after the artist’s death in 1973. In 1996, Yves de Fontbrune, a Frenchman who had purchased the publisher’s stock and obtained the copyright, sued Wofsy in France for reproducing some of the photos in “The Picasso Project,” a publication he offered for sale at a Paris book fair. Now U.S. District Judge Edward Davila sitting in San Jose has ruled the order is not enforceable in a U.S. court because federal law allows publishers to use copyrighted works for different purposes under the doctrine known as “fair use.” Wofsy’s book used less than 10% of the pictures in a photographic material available in a catalogue of Picasso’s paintings, which was intended for a different market and the court found that Wofsy's work did not compete with the catalogue, saying said fair use applies as the new book as the doctrine promotes “criticism, teaching, scholarship and research” by allowing copyrighted works to reach wider audiences with Wofsy's legal team saying said the judge recognised that “what he was doing, generating a reference work for libraries, academic institutions, auction houses and art collectors, is different from trying to compete” with the catalog of copyrighted photos.

Fitness firm Peloton that was recently called out for using unlicensed music and sound recordings in its popular (and profitable) exercise videos has admitted that "the challenges and complexities of music licensing are a key risk to its business". Peleton is facing a lawsuit  from a number of music publishers which alleges that Peleton's fitness videos contain unlicensed songs. Peloton countersued in April, mainly citing competition law arguments. The company is now heading for IPO and the pre-IPO filing states: "Given the high level of content concentration in the music industry, the market power of a few licensors, and the lack of transparent ownership information for compositions, we may be unable to license a large amount of music or the music of certain popular artists, and our business, financial condition, and operating results could be materially harmed" adding that despite "expending significant resources" on music licensing, the complexities of music rights ownership and song licensing meant that it could never be absolutely certain it wasn't "infringing or violating any third-party intellectual property rights" with the music already featuring in videos on its platform. At the time of the March lawsuit against Peleton  David Israelite, president and CEO of the National Music Publishers’ Association said “It is frankly unimaginable that a company of this size and sophistication would think it could exploit music in this way without the proper licenses for this long, and we look forward to getting music creators what they deserve.” The claim now stands at $300 million. Image (c) 2018 Ben Challis. 

Pitchfork reports that an  appellate court has ruled that iconic film composer Ennio Morricone can reclaim the rights to his film scores. Morricone sued Bixio Music Group in 2016 in an attempt to regain the copyrights to six of his film scores from the late ’70s and early ’80s arguing that his contract with Bixio expired in 2012 using the provisions of the US copyright law that  lets authors terminate a trasfer of rights  35 years after a work’s initial publication. The composer reportedly served Bixio a termination notice in 2012, but the company didn’t give their claim. In fact the composer lost at first instance in October 2017 when a New York federal court  determined that Morricone’s works should be considered “works for hire” and  that would block the composer’s termination rights. The U.S. Court of Appeals for the 2nd Circuit reversed that decision, saying the scores shouldn’t be considered “works for hire” in either U.S. or Italian law.

And finally, the three major recorded music labels, Universal, Sony, and Warner have issued legal proceedings against a US  internet service provider to be found liable for facilitating its customers’ copyright infringement. In their complaint, the major labels allege RCN Telecom has been aware for years of rampant copyright infringement by its subscribers, thousands of whom they assert include repeat offenders (UMG Recordings, Inc., et al. v. RCN Telecom Servs., LLC et al., 19-cv-17272 (D.N.J.)).  JDSupra reports that the federal suit contends RCN has received more than 5 million infringement notices, but turned a blind eye to music piracy by continuing to provide high speed internet to these users. The major labels claim RCN’s inaction facilitated copyright infringement and caused RCN to become a “haven for infringement.” 

Jeff Koons Parody Defense Fails in French Copyright Infringement Case

On March 9, 2017, the Tribunal de Grande Instance de Paris, the Paris trial Court found that Jeff Koons had infringed the copyright of French photographer Jean-François Bauret, as he had reproduced, without authorization, one of Bauret’s photographs to create his Naked sculpture.

Jean-François Bauret took in 1970 a black and white picture of two naked children, a boy and a girl. The photograph, Enfants (Children), was reproduced in 1975 on a postcard, and also published in 1984 in a book, both with the authorization of the author, now deceased.

Bauret’s heirs discovered in 2014, by chance, that Jeff Koons had created in 1988 a china sculpture resembling Enfants, Naked, which is part of Koon’s Banality series. The heirs sent a cease and desist letter to Koons, demanding that Naked be retired from the Jeff Koons retrospective at the Pompidou Center in Paris, presented to the public in 2014-2015. The sculpture was finally not shown there, because it had been, according to Koons, damaged when shipped to Paris.

The heirs then sued Jeff Koons and the Pompidou Center for copyright infringement and damages. As Koons had created his work in the U.S., the French court declared having no jurisdiction over the alleged copying, only jurisdiction over the representation of Naked in France. The work has never been shown in France, but was included in the catalog and promotional items of the retrospective. Let’s note that Koons had to withdraw another Banality sculpture from the same retrospective, as it allegedly infringed the copyright of another French photographer (see here). 

Is Enfants an original work of art, protected by French copyright?

Koons and the Pompidou Center argued in defense that Enfants was not original enough to be protected by French copyright, the droit d’auteur. The Court did not agree, citing the Court of Justice of the European Union (CJEU) Eva-Maria Painer. v. Standard Verlags GmbH et al. case [see here for Eleonora’s comment on the case], where the CJEU held that a photograph can be protected by copyright, under Article 6 of Directive 93/98, if the photograph is an intellectual creation of the author which reflects her personality. This must be verified by the national Courts, which the Paris Court undertook to do.

The Paris Court  explained that “[t]he author must be able to explain the elements which make it possible to understand his creative effort and what he claims as the imprint he has placed on this work and which stems from his personality.”

The Court noted that Mr. Bauret had built a whole corpus of work around human nudes, presented not in a sexual way, but instead as a way to live au naturel. He wanted to show in Enfants “a message of innocence and purity, without sappiness.” Mr. Bauret directed the pose taken by the two children, and the photo was not the product of a “shooting session of children playing freely.”

The Court concluded that in the photograph “an atmosphere of tenderness and purity reveals the imprint of the personality of the author.”

Is Naked an unauthorized reproduction of Enfants?

The Paris Court then compared the two works, Naked and Enfants. It found that “[t]he pose of the children is visually recognizable in the image of the Naked sculpture and the children are identifiable with the models chosen by Jean-François Bauret whose morphology is reproduced.” The Court noted that Jeff Koons had placed the children on a colorful heart-shaped pedestal, surrounded by multicolor flowers, and that, unlike in the original picture, the boy was giving flowers to the girl. Also, the tridimensional sculpture allow the viewer to turn around the work.

However, these differences “do not prevent recognition and identification of the models and pose chosen by the photographer which are essential protected elements of the photography.” The Court found Naked to be a composite new work, which incorporated the Enfants pre-existing work. As Koons had not sought Bauret’s permission to use Enfants, the Paris Court concluded that Naked was an illegal reproduction.

Is Naked a parody of Enfants?

Jeff Koons asserted a parody defense. Article L. 122-5 of the French Intellectual Property Code provides that the author cannot forbid certain uses of his work, parody amongst them. The Paris Court cited the CJEU Deckmyn v. Vandersteen case, where the CJEU explained that a parody must “evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery” [see here for Eleonora’s comment on the case].

The Paris Court did not find that Naked was a parody, noting that “it is the first time that [Koons] evokes the existence of this supposedly parodied work which he never quoted in his artistic discourse to illustrate his inspiration and he maintains that he is very distanced from it.”

Does the Paris Court interpret Deckmyn correctly? Does a parody necessarily mock the protected work which it evokes? Or can the parody evoke the protected work as a symbol of something that the parodist wants to make fun of? This is what the CJEU held in Deckmyn:

“[T]he essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. The concept of ‘parody’, within the meaning of that provision, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.” (My emphasis).

There is no requirement that parody directs its sting at the original work…

Naked is part of a series of sculptures named Banality. The Paris Court described the series as “a new approach of “ready-made” which reveals in a mixture of pop art and kitsch, objects related to popular culture.” The Court thus described Koons’ creative process as taking an object related to popular culture, mixing it with pop art to make its kitsch pop up. The result is a ready-made piece of art.

One can argue that such definition of Koons’ series contradicts the very conclusion of the Court about the lack of parody, even if one interprets Deckmyn as meaning that a work of art does have to parody the work it is evoking to benefit from the parody exception. The Court did not specify what Koons “reveals” (dévoile) in his series, but one can suppose the court meant to say he reveals the banality behind pop culture.

In our case, Naked brings to mind the Hummel figurines, many of which have a brother and a sister as theme (see here for example). Kitsch indeed. Koons seems to comment on it by inserting flowers, hearts, and pedestal, as banal props of cuteness. 

Anyway, this case shows how courts view parody differently from both sides of the Atlantic.  In Cariou v. Prince, the Second Circuit found that it was not necessary that Richard Prince had commented on the work of Patrick Cariou for the fair use defense to be successful. It is true that the fair use defense has a much broader scope than the EU parody defense.

Jeff Koons Banality series has also provided Rogers v. Koons to U.S. copyright case law, where the Second Circuit found that Jeff Koons had infringed the copyright of the author of a photograph representing a couple holding puppies, which Koons reproduced in a sculpture. Koons had unsuccessfully asserted fair use as a defense, but, in light of Cariou, the Second Circuit would likely now find it is fair use. Ready Made artists, Appropriation artists, keep creating! Copyright law needs you. 

Image of Centre Pompidou is courtesy of Flickr user cwywy007 under a CC BY-NC-ND 2.0 license.

Image of Jeff Koons program is courtesy of Flickr user Jürgen Fenn under a CC BY-ND 2.0 license.

Wiill the Poke be the test parody piggie?

The annual 'John Lewis' Christmas advert is much admired by some here in the United Kingdom - although loathed by others for the schamlatzy undertones  - but no one can deny its been an amazing marketing idea for the department store as its always a much anticipated and much talked about 'national event'. But every year the advert lends itself to parody - which of course in the past might have been a tad tricky here in the United Kingdom - but maybe not now, with our newly installed exception for parody, pastiche and caricature. This year's advert is based on the idea of the 'man in the moon' and a little girl's plan to cheer up a lonely old man by sending him the gift of a telescope. All lovely, and sent to a haunting version of rock band Oasis's "Half The World Away" performed by Norweigian teenage newcomer Aurora Asknes. Cue the Poke ...... whose strapline is 'time well wasted': 

With the imminent release of the new Star wars film 'The Force Awakens' on the cards - why not produce a 'Dark Side' version of the soft and gentle John Lewis tale - but this time replacing the Moon with the Empire's Death Star, and the old man with the evil Darth Vader. Cue a very different, and to this writer anyway, very humerous take on both the John Lewis advert and and Star Wars films. But how will the department store and the Disney and 20th Century Fox, who own various copyrights in the films, take this? The spoof  uses extensively uses footage from the advert itself, and also from the orginial 1977 Star Wars film and the 2015 latest outing - as well as the song and sound recording. So how will copyright owners take this - are we going to see 'take downs' gfrom YouTube and elsewhere  (none as yet I could find) - or even legal action? This writer suspects not - at least not from John Lewis who are surely benefitting from the publicity - and perhaps not even from the film companies - its all good publicity after all. But you never know. What do readers think. Your COMMENTS would be much appreciated. 

You can view the Poke's video here  - Topicalol's take here (which is a spoof of mars based science fiction outing with Arnold Schwarzenegger's Total Recall) and the original John Lewis ad here

Breaking point: is a copy of a parody infringing?

If you've ever seen the 1991 film Point Break you will know that Keanu Reeve's portrayal of an undercover federal agent, who poses as a surfer to bring a gang of surfing bank robbers to justice, is somewhat suspect. "Over the top", "stilted" and "clichéd" are some of the more polite comments about Reeves' portrayal of the rookie agent.  In fact some people think his performance is just hilarious. It was so funny, in 2007 playwright Jamie Keeling adapted the movie to produce her own irreverent live theatrical version, where a random member of the audience is selected to read Reeves' lines from cue cards. This was turned into a successful theatrical show Point Break Live! but then The Hollywood Reporter tells us, the production company behind the live version stopped paying Keeling, did its own version, and producer Eve Hars took the position that that Keeling had no right to her script since it was based on the film - and she had no permission to use the film script. So we now have a parody of a parody of a film. 

Keeling felt her work should be protected against an infringing copy, and in December 2012 a federal jury returned a $250,000 verdict in favour of Keeling.  The question posed to the 2nd Circuit Court of Appeals was whether  a parody, which has used another work (the 'source work') under the U.S. doctrine of fair use, is entitled to copyright protection - here against work which must also be a parody. 

The 2nd Circuit noted that Keeling used the 1991 film as source material and added "jokes, props, exaggerated staging, and humorous theatrical devices to transform the dramatic plot and dialogue of the film into an irreverent, interactive theatrical experience. For example, in Keeling’s  parody, massive waves in the film are replaced by squirt guns and a death‐defying scene in which Reeves’s blindfolded character must pick up bricks in a swimming pool is reduced to action in a children's paddling pool." And to be clear, no one was arguing that Keeling's use of Point Break wasn't fair use - BUT - could she use the fair‐use principle "to establish an affirmative claim against defendants for unauthorized use of her parody".

"Without any possibility of copyright protection against infringement for her original fair-use parody, playwrights like Keeling might be dissuaded from creating at all," Circuit Judge Jose A. Cabranes wrote on behalf of a three-judge panel.

Judge Cabranes was of the opinion that derivative works are entitled to copyright protection, separate from the copyright to source work: "It is not the invocation of fair use that provides the work copyright protection ....... It is the originality of the derivative work that makes it protectable, and fair use serves only to render lawful the derivative work, such that it may acquire — as would other lawful derivative works — such protection."

The defendants also advanced the argument that if Keeling's contributions consisted solely of non-copyrightable elements like stage directions and theatrical devices, her work couldn't support a copyright.  Again the court found for Keeling with the court saying that as with a telephone directory "creative choices made in selecting and arranging even un‐copyrightable elements" are protected by law. The appellate court upheld the award of $250,000.

Separate casts on each coast  of the USA perform weekly Breaking Point Live! shows in Los Angeles, monthly in San Francisco and sporadic shows in Washington, Boston, Philadelphia, San Diego, Chicago, Detroit, Cleveland and elsewhere.

http://www.cnbc.com/2015/10/30/the-associated-press-appeals-court-rules-in-favor-of-point-break-parody-creator.html

The CopyKat - the Dung Beetle is back - and its angry now

Miriam Elia, the artist who was threatened with legal action by Penguin for a humorous book introducing children to the art world in the style of the Peter and Jane readers from the 1960s and 1970s has taken satirical revenge, after the publisher announced its own series of humorous retro titles based on the Ladybird books, telling the Guardian that when she realised Penguin had stolen her idea she was "a little angry" but rather than slinging insults on Twitter she  thought she would create a ‘satirical Ladybird book’ about the situation with "We Sue an Artist", her "Dung Beetle guide to corporate intimidation".  Our September 2014 Blog on this can be found here.

In China, the State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) has announced several measures to tackle illegal copying and recording of films in cinemas. Technological analysis will be used to trace the time and venue of illegal recordings, and more education and training courses will be provided to raise IP awareness. The excellent China IP newsletter from the IPO, the British Embassy in Beijing and UK Trade and Investment points us to the SAPPRFT website.

Online radio provider Pandora is to pay out some $90 million to the three major record companies, Universal, Sony and Warners, along with ABKCO, as payment for use of pre-1972 recordings. In June, Sirius paid $210 million to resolve a long-running lawsuit over its broadcast of older tracks. Pandora will pay $60 million for the use of recordings through 2015, and another $30 million to cover through 2016. Last year, recording companies filed a lawsuit in New York State Supreme Court in Manhattan, accusing Pandora of violating the state’s copyright protections by using recordings of older songs without permission. The move followed the success of Flo & Eddie (The Turtles) in garnering copyright protection for sound recordings under state laws in both New York and California - although they failed to convince a judge in Florida on the same arguments.

Having sent a cease-and-desist letter to Donald Trump, asking the Republican presidential candidate to stop using “Dream On” during his campaign, Aerosmith frontman Steven Tyler has now penned an open letter explaining his views on U.S. copyright laws — and how they need to be rervised (from the perspective of a very successful long term recording artiste methinks!). “My intent was not to make a political statement, but to make one about the rights of my fellow music creators,” the singer writes in his open letter, first published on Huffington Post. “But I’ve been singing this song for a while now” adding his campaign was "to make sure that songwriters and artists can practice their art without threat of extinction. "To make sure those who practice their craft get paid fairly when others use their work" and The laws need to change. We have so many laws in America that control how we get paid for our music. Seventy-five percent of songwriters' income in the U.S. is regulated by the government? Too much government intervention in art and music is a bad thing." Image from wikicommons.

The European Commission has no plans to weaken copyright, but wants a "targeted" and "balanced" reform with concrete benefits for consumers and right holders. That's according Gunther Oettinger, the member of the European Commission with responsibility for the Digital Economy and Society, speaking at the Frankfurt Book Fair.


The saga of 'Happy Birthday' in the USA isn't over by a long shot. Not only do the current plaintiffs want the court to give a clear statement over the status of the copyright protection (or in their view lack of copyright protection) attached to the song, the matter remains of the millions of dollars paid to Warner/Chappell by licensees who wanted to use the song.  But Warner/Chappell hasn't given up either .... the music publisher is seeking Judge King's reconsideration of his September ruling, in particular, they disagree with King's interpretation of a 1940s agreement between Summy and the Hill sisters, and, as an alternative, has requested permission to file an immediate appeal. More on this on the Hollywood Reporter here.

Over on the IPKat, Eleonora tells us that he US Court of Appeals for the 2nd Circuit has delivered its judgment in the Google Books case and has confirmed the decision of Judge Chin -  that the scanning activities of Google within its Library Project are to be considered a fair use of copyright works.

And finally, A federal court jury in Nevada has ordered a Las Vegas-based software maintenance firm and its chief executive to pay just over $50 million in damages to technology giant Oracle in a copyright infringement lawsuit. Oracle had sought nearly $246 million in damages. The verdict against Las Vegas-based Rimini Street Inc. and CEO Seth Ravin followed a two-week trial in U.S. District Court in Las Vegas. It focused on copies of J.D. Edwards and Siebel-branded Enterprise software. Ravin was found jointly liable for $14.4 million of the $50 million figure. Rimini Street has filed a separate action against Oracle asking the court to confirm that Rimini Street's new processes for it's PeopleSoft update development do not infringe on Oracle copyrights.

The CopyKat

An artist has won almost $1.35 million damages in a lawsuit over a sculpture commemorating workers who were paid $5 per day to risk their lives during the construction of the Hoover Dam. A jury in Las Vegas federal court ruled in favor of artist Steven Liguori, creator of the bronze statue known as the “High Scaler” at Hoover Dam. In 2011, Liguori sued Bert Hansen, the owner and operator of the Hoover Dam Snacketeria and the High Scaler Cafe at the dam, after the artist said he was cheated out of royalty payments and his work was used without permission for merchandise and marketing. Hansen had commissioned Liguori to create “High Scaler” for a $166,000 fee and had agreed to pay the artist a share of the proceeds from merchandise based on the sculpture as well as the artist’s other dam-related creations. U.S. District Judge George Foley ordered Hansen to pay Liguori $1.2 million for breaching their agreement and $150,000 in other damages.

Music publisher Kobalt has launched what it calls the world’s first ‘global, direct, digital mechanical and performing rights society’. The new venture is based on the existing operation of AMRA (American Music Rights Agency), which Kobalt acquired last year. What other music publishers make of a publisher owned collection society remains to be seen - but the new service promises two services to clients: (i) licensing of AMRA publisher members’ Anglo-American repertoire to DSPs operating in multiple territories and (ii) collection of writer’s share of public performance monies on behalf of AMRA writer members. AMRA plans to collect from th likes of YouTube and Spotify globally rather than in individual territories and promises to be "the most efficient way to handle the ‘high volume/low transactional value’ of music repertoire in a streaming world." More on Music Business Worldwide here.

Its somewhat ironic that as Facebook now seems to be a leading destination for illegally uploaded videos, one of the main complaints about this comes from the more creative users of YouTube, with YouTube creators alleging that their popular videos are being pilfered from the platform and uploaded to Facebook. A new term has even been coined for this practice: ‘freebooting’ - pointing out that Facebook doesn’t give creators the ability to monetize their videos just yet - with freebooting is detracting from valuable YouTube views which now has a workable and well publicised takedown system for content ownerrs, and its ContentID programme. More here. 


Fadi Chehadé, the President of the International Corporation for Assigned Named and Numbers (ICANN), has said that his organisation will not play international internet copyright police. His comments came as the US House Communications and Technology Subcommittee prepared to vote later this week on H.R. 805, the "Domain Openness Through Continued Oversight Matters Act," which would make ICANN an independent entity not under the auspices of the United States government, making the agency "more accountable to the Internet community" but Chehadé is clear that if and when independent, the organisation will not let trade groups or even governments compel it to enforce copyright laws.

Andrus Ansip, the European Commission's Vice-President for the Digital Single Market, has admitted that EU copyright law is "pushing people to steal," because they seek out illegal copies of works that are not available to them legally because of the widespread use of geoblocking in Europe. Ansip was interviewed as part of the music industry's annual Midem event (available as a video, found via TorrentFreak). He pointed to Spotify as an example of how people could be encouraged to pay for copyright material: "if somebody is able to provide services with better quality, with higher speed, people prefer to act as honest people; they are ready to pay, they don't want to steal." Emphasising that legal services need to be offered first before strengthening copyright enforcemen, Ansip also made comment on the controversial topic of geo-blocking in Europe, saying that whilst  "I'm not against territoriality" he was "against absolute territorial exclusivity"


Adam Suckling has resigned as News Corp Australia’s head of corporate affairs to become chief executive of the Copyright Agency, lauded for his "mix of commercial, content and copyright policy experience”. The appointment comes after the Copyright Agency extended its digital activities, launching digital textbooks for secondary school students and teachers, and teaching material to promote Australian literature. More here.

In Jamaica the House of Representatives has voted to increase the period of copyright protection for creative works used in Jamaica to 95 years after they become available. Under the amendment, copyright protection for local works was increased from life of the author plus 50 years, to 95 years from the end of the calendar year in which it was made available. The amended protection will affect Jamaican copyrighted creative works, including sound recordings, films, broadcasts or cable programmes, as well as performer’s rights.

The notice that Akkad received from YouTube

And finally, that bastion of liberal values, the UK's Guardian newspaper, is facing a barrage of criticism after it was accused of sending a “false” copyright notice in an attempt to “bully” a popular online ‘vlogger’ - after he parodied their politically-correct content by taking excepts from a video on the subject of African identity and stereotypes. Satirist, polemicist, and video-blogger Sargon of Akkad *what a title!) hit back at the Guardian after receiving a notice via YouTube that the newspaper was disputing his right to use their video in his parody of their identity politics. Breitbart London asked the Guardian how the copyright claim fits with its own claims of supporting “open journalism” and a statement, made by the newspaper’s editorial team, that “voices of opponents no less than that of friends has a right to be heard”. In response the newspaper issued a statement reportedly saying "“The Guardian has not issued a DMCA against YouTube user Sargon of Akkad,” a spokesman said. “There are, however, ongoing copyright discussions with the YouTube user regarding the amount of a Guardian video he has used – an issue highlighted by YouTube’s own Content ID system. We hope to come to an agreement with Sargon of Akkad and have offered advice on how to engage with Guardian content without breaching copyright. Open journalism is at the heart of the Guardian and we believe in the free flow of engagement, challenge and debate.”

In Belgium, parody is no defence for 'appropriation art'

With the City Law School's seminar with Professor Jonathan Griffiths fast approaching (Parody and copyright in European Union copyright law), the CopyKat has only just found time to report on a January case from the parody hotspot of Europe - Belgium  - and an interesting decision from the Court in Antwerp.

Belgian painter Luc Tuymans had never denied that he had based his painting ‘A Belgian Politician’ on a 2010 photograph of the Belgian right-wing politician Jean-Marie Dedecker taken by photographer Katrijn Van Giel, which was published in the Belgian newspaper De Standaard: but Tuymans used the earlier work without asking for the photographer's blessing or pernission. That now seems to have been a rather costly mistake, as Tuymans has lost an action in the Court of First Instance in Antwerp: Tuymans was unsuccessful in arguing that his work was subject to the parody exception and it was found to have infringed Van Giel’s copyright. Tuyman's work was sold to an American collector.

Van Giel's original phorograph

Tuyman's portrait

In his defence to fast-track proceedings initiated by Van Giel, Tuymans argued that the parody exception should apply, saying that his painting was an original work of art which is noticeably different from the picture - and that the irony lies in (i) the duplication of reality, (ii) the criticism of the imagery of Belgian politics and (iii) the title of the painting. A further arguermnt was that the parody exception would also be applicable because the artist's freedom of expression, guaranteed by article 10 of the European Convention on Human Rights, would be in balance with Van Giel's copyright, without causing any prejudice to her or her picture. Throughout his career, Tuymans has used photographic source material as a basis for his paintings – including images of hospital patients, archive portraits of national socialists and Nazis, Belgian seminarists and Ku Klux Klan leaders.

In  C-201/13 Deckmyn v Vandersteen,  itself a reference from Belgium, the Court of Justice of the European Union decided that ‘parody’ is an autonomous concept of EU law and must be understood according to its usual meaning in everyday language. A parody has just two essential characteristics: first, to evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour or mockery. The CJEU also noted that the application of the exception for parody, established by the Directive, must strike a fair balance between, on the one hand, the interests and rights of authors and other rights holders and, on the other, the freedom of expression of the person who wishes to rely on that exception

In this case the Court said that a parody requires a distorted representation of the original work and a clear playful or humorous nature, where satire, parody or sarcasm are the only aims. Reflecting that the painting was a 'mere reproduction' of Van Giel's photo, those conditions were not met, as the picture was not reproduced in a clownish, parodied or sardonic manner. The President of the Court was not convinced by Tuymans’ argument that the parody would be in the title of the work (which is not visible on the painting), nor by the fact that Tuymans adheres to the “appropriation art” movement - and readers might want to contrast the Belgian Court's decision with that of the US 2nd Circuit Court of Appeal in Cariou v Prince: the decision may well prompt a wider debate on just how far the parody exception should extend to in the European Union. The President found that the infringement was "in bad faith", as the artist had previously told the press that the picture of Van Giel was "so strong" that he did not have to adapt it as much as usually required when using pictures as a source of inspiration. That said, writing in the Guardian, Adrian Seale argued "There is an enormous difference between the photograph and the painting. Scale is different. Colour is different. Shadows and highlights are shifted, recast, added to and emphasised, abbreviated and deleted .... Most of all, surface is different."

Frinding infringement, the President of the Court dismissed Tuymans’ defence and ordered him to cease from infringement on pain of a penalty of 500.000 EUR for any infringement which would include any further reproductions of the panting, or showing trhe origial work. 

Judgment of the President of Court of First Instance of Antwerp (Belgium), 15 January 2015, docket number 14/4305/A, Katrijn Van Giel v. Luc Tuymans.

http://www.jdsupra.com/legalnews/belgium-even-a-world-famous-painter-nee-55278/

Could Ladybird bring the first parody challenge?

Appropriation art: More on the latest claim against Richard's Prince here.