The CopyKat - can Batman land a knockout punch for actors in copyright spat?

Those pesky Turtles

It seems SiriusXM has decided to rely on the 1940 case of  RCA v Whiteman et al to persuade  U.S. District Judge Colleen McMahon to reconsider her view that SiriusXM should be paying royalties from the broadcast of pre-1972 sound recordings by The Turtles and other acts. In that case Judge Learned Hand for the Second Circuit Court of Appeals wrote that state law should not let performers, once a phonograph was sold, control how and when it was played saying "we think that the “common-law property” in these performances ended with the sale of the records and that the restriction did not save it; and that if it did, the records themselves could not be clogged with a servitude." Judge McMahon says the 1940 case "might require her to rethink the ruling." More on the series of cases brought by the Turtles' Flo & Eddie here. 

Cisco Systems has said it will initiate a legal action against its fast growing rival, Arista Networks, accusing the company of patent and copyright infringement. Cisco has alleged that Arista has violated its patents and copyrights linked to its networking equipment. With copyright, Cisco's claims tha Arista has not only copied the Cisco product features, but has also apparently copied the language in Cisco's operating manuals - with typos and grammatical errors and all. More here.

Sol-seom by Michael Kenna

A case from South Korea where the plaintiff, Gallery Kong, a Korean image agency representing the interest of professional photographer Michael Kenna, has lost an appeal in a copyright infrngement lawsuit against Korean Air. The dispute concerns a photograph Kenna took of a small island in Gangwon Province under the title of “Island of Pine Trees.” He took the photo February 2007 while coming back from a photo shoot and spent about one and a half hours walking along the embankment to find an appropriate spot for shooting and produced the now famous black-and-white image called “Sol-seom” (meaning an island of pine trees). Korean Air used a similar colour image taken by an amateur photographer in a 2011 TV commercial - resulting in the lawsuit.

The Korean Air image

 

But it was not the same image - and the appellate court upheld the trial judge saying “Creative works using the same natural scenery like mountains, trees, and stones tend to be similar and thus the range of its creativeness is bound to be limited” and  “Given the fact that the object in the photograph is a natural one, a creativeness claim about it is weak and minor adjustments like taking a picture from a different angle can’t be taken as creative elements”. They also commented that the two pictures (one taken by Michael Kenna and the other by an amateur) are different in terms of volume and direction of light and the way the picture was taken. As to the claim by the plaintiff that the pictures are similar in their first impression, the judges answered, “The plaintiff’s work gives an impression of an Oriental ink-and-wash painting while the amateur’s exudes dynamism at the time of sunrise, which are fundamentally different.”

It's an interesting approach, but post the CJEU's Inforpaq decison it seems contrary to the decision made by Sir Colin Birss in Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1 -although here the claimant had manipulated a photograph of the House of Parliament to created a disticntive predominalty black and white image with a red routemaster bus on Westminster Bridge, which was then recreated by the defendant. Judge Birss (as he was then) considered the scope of photographic copyright by reference to three aspects which could be considered 'original': (i) Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on; (ii) Residing in the creation of the scene to be photographed; (iii) Deriving from being in the right place at the right time -  and with a nod to Infopaq - found for the claimant.

Cindy Lee Garcia, the actress who got death threats for her role in a trailer for the rather horrible Innocence of Muslims before taking action against Google to enforce a takedown notice - and convincing the majority of the 9th Circuit Court of Appeals (with the ruling from Chief Judge Alex Kozinski) that actors could have a copyright interest in their performances - has now attracted amici support from SAG-AFTRA, the Actors Equity Association, the American Federation of Musicians and other associated talent labour groups in the entertainment industry. They say that an actor can indeed have a copyrightable interest in a performance that's separate and apart from the interest anyone else holds in a motion picture. SAG-AFTRA and the other performer's guilds have argued for the originality of acting performances to be protected and say that a performance can be considered a pantomime or dramatic work under Section 102 of the U.S. Copyright Act. The brief argues that usually each actor adds something new to the character he or she performs saying "Google and its amici argue that the actor is basically a puppet — an automaton that merely does as the director instructs, reading the words the writer writes, depicted as the cinematographer sees him or her. But this is clearly not the case. The actor imbues the character with originality. Compare, for example, the various actors who have played the character Batman on the big screen — each actor brought something different to their performance of the character that, even when masked in full costume, Christian Bale’s performance stands apart from Michael Keaton’s, or Val Kilmer’s, or George Clooney’s or even Adam West’s television appearances. And the recent casting of Ben Affleck to play the role sparked considerable debate among fans of the character" and "While a director or cinematographer may help guide the actor’s performance, particularly in connection with stage directions, it is the actor’s own original expression that the audience sees" says the brief. Facebook, Twitter, IAC and Pinterest had all requested permission to file an amicus brief supporting Google's position. The dissenting judge in the 9th Circuit, Judge N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "An actor's performance, when fixed, is copyrightable if it evinces 'some minimal degree of creativity ... no matter how crude, humble or obvious it might be".  More in the Hollywood Reporter here

In Australia Attorney General George Brandis and Communications Minister Malcolm Turnbull have written to major copyright holders to urge them to come up with ways to discourage people from infringing copyright online. It's a carrot and stick approach with ministers saying that if the code of practice is not agreed with 120 days, the government will impose its own rules to crack down on illegal downloading and streaming of material on the internet. The planned code of practice “will include a process to notify consumers when a copyright breach has occurred and provide information on how they can gain access to legitimate content,” Mr Turnbull said. The Australian government will also amend the Copyright Act so copyright owners can seek a court order to block a website operated from overseas that Australians use to access content unlawfully although some commentators say the planned scheme would be open to abuse by content owners - Dr Matthew Rimmer told TechWorld "There are a number of whistleblowing sites that have a large number of copyright materials on them" adding  "A site like Wikileaks, for instance, could certainly be targeted under these laws." More here.

And finally an interesting case from the world of music sampling. A US Judge has thown out a case against rapper Jay Z over the use of just one word 'oh' - from a recording and song by Eddie Bo called The Hook & Slings  in his track and video Run This Town with the court saying "Run This Town bears very little and perhaps no similarity at all to Hook & Sling Part I. The melody and lyrics are entirely different. The lyrics do not contain the word “oh.” .. [It appears] only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener. "This does though seem to sidestep the ruling made in Westbound Records and Bridgeport Music v No Limit Films (September 2004) by the 6th Circuit Court of Appeals: here the court posed the question “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?” The Court’s answer to this was in the negative” and the court added “Get a license or do not sample – we do not see this as stifling creativity in any significant way” although that decision can istelf be contrasted by US District Judge Alison Nathan's more recent decision in the Tuf America v Beastie Boys case in 2013 .  More here. and more on music sampling here.

Fashion and copyright

Unable to attend (meaning not invited to) Milan Fashion Week, this blogger spoke yesterday at the legal equivalent: the Intellectual Property in the Fashion Industry conference. 

The IP Kat was speed blogging at a rate of knots, so you may already have read his summary of the conference, however below is some more detail on the copyright issues that were discussed.

Copyright doesn't protect fashion

"Copyright doesn't protect fashion" is a statement frequently bandied around, however what is meant is that in the UK at least it is difficult to protect a garment using fashion. Our closed list common law system means that unless a garment can be said to fall into one of the eight protected categories, it cannot be protected. A garment could be said to be an original artistic work: a work of artistic craftsmanship. Case law is not in favour of this argument as a string of cases demonstrate how difficult it is to show that a garment is artistic (see for instance the baby's cape in Merlet v Mothercare, or the sweaters displayed in the V&A in Guild v Eskandar.) The requirement that a work be "artistic" is unusual in the copyright world as it requires a judge to consider the esthetic merit of the work. As Lord Reid said in Hensher v Restawhile, "it depends on whether a substantial section of the public admire the thing for its appearance". The result of this is that it is difficult to show that a garment is a work of artistic craftsmanship, and indeed no-one at the conference could remember a case where any work had been considered to be a work of artistic craftsmanship.

That said, it is possible to protect other works relevant to the fashion industry using copyright. There is far less controversy surroundin the protection of photographs, films, collages, sculptures etc.

The Red Bus Case

Temple Island v New English Teas (the red bus case) was discussed in relation to Kate Spade's alleged copying of Vera Neumann's poppy design. The case demonstrates how difficult it is to draw a line between copying an idea or concept such as a poppy, and copying the expression of that idea, i.e. Vera Neumann's design. Further, the PCC's finding that a person who recreates the subject matter of another person's photograph can infringe copyright in that photo is relevant to the fashion industry as magazines and catalogues often recreate runway or haute couture photographs to showcase high street clothes.

Harmonisation of protected subject matter

A string of recent cases from the CJEU indicate that in the EU a work is protected if it is its "author's own intellectual creation" (see Infopaq, Bezpečnostní softwarová asociace, FAPL and SAS v World Programming Ltd). This does not sit comfortably with the English law notion that a work is only protected if it falls within one of the eight categories set out at s.1 CDPA and it is not clear whether English courts will follow the CJEU's approach in protecting works in which the author's own intellectual creation vests. The notion of what is a protected work is not generally controversial however the EU test could enable protection of items currently not protected under English law, such as garments or perfume.

An allied concept is that of originality, for which the EU test has been applied in the UK by the High Court in NLA v Meltwater. Mrs Justice Proudman found that, when considering originality in relation to whether a substantial part of a work was taken, it was necessary to take European law into account. Answering her own question as to whether the test of originality had been changed by Infopaq she considered that the test had been 'restated but for present purposes not significantly altered by Infopaq'.

All this is indicative that fundamental copyright principles are changing and that we could see a shift towards increased protection for the fashion industry.

 Whether the fashion industry needs or wants increased protection is another question entirely. See here for an analysis of "why knock-offs are good for the fashion industry" and contrast with the fact that the US "Fashion Copyright Bill" has made it throught he Senate Judiciary Committee and is headed for the full Senate.