Is music sampling back in Vogue?

A US Appeals court has 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”. The split 2-1 decision must  call into doubt the strict approach taken by the 6th Circuit Court of Appeals in the leading case of Bridgeport Music, Inc., et al. v. Dimension Films, et al 410 F.3d 792 (September 2004). There the court in Cincinnati 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.”

But in this new case, the U.S. 9th Circuit Court of Appeals said the horn segment at the heart of the copyright lawsuit  lasted less than a second and would not have been recognisable to a general audience.

Judge Susan P. Graber said for the majority: "The horn hit occurs only a few times in ‘Vogue' .... without careful attention, the horn hits are easy to miss.” The decision fits in neatly with the December 2014 decision by New York federal judge Lewis Kaplan who dismissed TufAmerica's lawsuit against Jay Z and his record companies which alleged he had violated copyright by sampling an "oh" on the song, "Run This Town," released on the album The Blueprint 3 from an older sound recording entitled "Hook & Sling Part 1" saying ""Plaintiff's tautological argument that 'oh' must be qualitatively significant to Hook & Sling Part I and to the "Hook & Sling" Master because defendants' sampled it more than 40 times in "Run This Town" misunderstands copyright law generally and the substantial similarity test in particular," writes the judge, later adding, "If the original recording has been sampled at all ... the fact of the matter is that the samples appear only faintly in the background of Run This Town and are, at best, only barely perceptible to the average listener."

VMG Salsoul, LLC, which holds a copyright to “Love Break,” sued Madonna and others, alleging that  Shep Pettibone, the producer of “Vogue,” copied a 0.23-second segment of horns from “Love Break,” which he had worked on years earlier. "Vogue" was a release from the album "I'm Breathless", and topped the charts in all major music markets reaching number one in the USA, the UK, Australia, Canada, Italy and Spain, selling six million units worldwide.

Having listened to the recordings Judge Graber held: “we conclude that a reasonable jury could not conclude that an average audience would recognize the appropriation of the composition.”

However, Judge Barry G. Silverman dissented, arguing that the use of the horn segments, if proven,  would amount to infringement: “It is no defense to theft that the thief made off with only a ‘de minimis’ part of the victim’s property”.  He said a copyright of a recording amounted to a “valuable property right, the stock-in-trade of artists who make their living recording music and selling records.”

The German Constitutional Court in Karlsruhe recently made a ruling in a case brought by the German avant garde rock band Kraftwerk against German music producer Moses Pelham over a two second sample - balancing the position of rights owners against a right of artistic freedom - coming down on the side of the latter. According to the Constitutional Court, requiring the phonogram producer's permission for taking even the "tiniest sliver" of a recording when it was possible to recreate the sound without copying violated freedom of art as it would essentially prohibit modern forms of pop music, namely hip hop, which relied on sampling. Norms of hip hop demanded actual sampling, not recreation of that snippet. Licensing was not a viable alternative namely for songs that were sampled from many other recordings, as it  as it was very time consuming and prohibitively complicated.

http://www.latimes.com/entertainment/music/la-et-ms-madonna-vogue-copyright-law-20160602-snap-story.html

http://musiclawupdates.blogspot.co.uk/2016/05/german-constitutional-court-sends.html

TufAmerica, Inc v   WB Music Corp, et al. Case 1:13-cv-07874-LAK 

Bridgeport Music, Inc., et al. v. Dimension Films, et al 410 F.3d 792

http://www.musiclawupdates.com/?p=199

The CopyKat

Star Trek franchise owners Paramount Pictures and CBS have revealed they're planning to drop their controversial copyright lawsuit against the makers of the ambitious fan film, Star Trek: Axanar. The news was announced by the producer of the new Star Trek Beyond JJ Abrams at a Trekkies fan event. Paramount/CBS lawyers told Buzzfeed's Adam Vary that they are in 'settlement' discussions and that they will draw up guidelines for fan film projects in the future, so that this sort of thing doesn't happen in the future.  But hang on - now we wont hear arguments about whether the Klingon language can be protected by copyright. This is a BIG SPOILER! You can see all 21 minutes of Prelude to Axanar here. 

A jury has ruled in favour of Google in the long-running legal dispute with Oracle over software used in many of the world’s smartphones. Oracle contended that Google used its Java copyrighted programming code in 11,000 of its 13 million lines of software code in Android, its mobile-phone operating system, and asked for $9 billion from Google. Google said it made fair use of the code. The victory for Google will cheer many other software developers,who use so-called open-source software. The decision was delivered in U.S. District Court in San Francisco. More here.

The Turtles may have done well in battering Sirius XM's attempts to avoid paying royalties for the use of pre-1972 copyrights, but now CBS has advanced an interesting new argument on the same topic - and a California judge has handed down a big ruling that could help "immunize" terrestrial radio operators and others from lawsuits and upend many preconceived notions about copyright. The decision from U.S. District Court Judge Percy Anderson comes in a dispute between ABS Entertainment, owner of recordings by Al Green and others, and CBS Radio, and was based on the concept that pre-1972 songs are protected under state law and can't be broadcast without permission. In reaction to the ABS lawsuit, CBS tried out a new argument - it was not performing the original analogue recordings, but rather NEW digitally remastered versions that came out after 1972. Under this argument, the specifically performed works aren't protected by state law, and CBS doesn't have to pay. And the court agreed. The labels are going to have a battle fighting this one, as they already file new copyrights for re-masters - which might extend the life of copyright for those gleaming new digital re-masters - but this plays into terrestrial broadcaster's hands. More on re-mixing and re-mastering here and here.

And over on the IPKat, two important recent decisions are reported. First off, Does an internet service provider (ISP) lose 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? The Tribunale di Roma (Rome Court of First Instance) had such a case where an ISP had acted months after the request of the concerned rightholder.  The Tribunale issued an interesting decision on the liability of ISPs for third-party infringing acts, here in the context of proceedings brought by RTI - Reti Televisive Italiane (owned by broadcasting company Mediaset). This time the defendant was French video platform provider website Kit Digital France (now bankrupt, formerly Kewego). The court referred to a number of decisions of the Court of Justice of the European Union (CJEU). More specifically it recalled: L’Oréal and Google France in relation to what an ‘active role’ (such as to prevent safe harbour protection) of an ISP entails; Scarlet and Netlog in relation to the prohibition to impose on ISPs general filtering obligations;  Netlog and Telekabel to note that copyright protection (the protection of IP is mandated within the right to property in Article 17(2) of the Charter of Fundamental Rights of the European Union) must be balanced with other fundamental rights and freedoms, including ISPs’ freedom to conduct a business (Article 16 of the Charter) and users’ freedom of expression/information (Article 11 of the Charter). On the facts, the court concluded that Kewego should be liable for the damages caused to the claimant by such delay, but left their actual determination to a later stage.

And finally - back to that thorny issue of 'making available' and that 'new public'. 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 (a reference for a preliminary ruling from the Landgericht Köln (Regional Court, Cologne)) asking essentially whether the making available of TV broadcasts by means of TV sets on the premises of a rehabilitation centre falls within the scope of Article 3(1) of the InfoSoc Directive and Article 8(2) of the Rental and Lending Rights Directive; and the concept of ‘communication to the public’ for the purposes of those two provisions must be given a uniform interpretation. The Grand Chamber has now delivered a 67 paragraph judgment substantially confirming 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 deliberately transmits protected works to patients by means of TV sets installed in several places on his premises. As such, he is 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. Eleonora's excellent analysis is here - but this blogger cant help but think that the court is getting itself into ever more difficult waters - and what the law is (or rather how it will be applied) is anyone's guess now. How would say the  use of a publicly available radio broadcast in  a staff canteen differ from say a dentist's surgey or waiting room, a spa, a hotel room (Rafael Hoteles), a tyre fitter's waiting area ? Apart from 'the can of worms opened by Svensson' - this writer is left with a nagging feeling that is reflected in the comments from one garage owner who said back in 2009 “The radio stations are paying to play the music and we have to pay to listen to it – they [the PRS] are taking with both hands". 

Copyright Exceptions event tomorrow night

AIPPI UK has an event tomorrow evening with the fantastic title of "Copyright exceptions: Small Islands in the (c) of Rights".

The illustrious guest speaker is Professor Lionel Bently talking about copyright exceptions.  This is the trailer:

"The exceptions chapter of the CDPA has been changed in various ways since it was first enacted, partly in response to criticisms made in the Gowers and Hargreaves reviews. This talk will review the landscape, asking how far the exceptions introduced in 2014 meet the criticisms expressed over previous decades. To do so, attention will focus on the potential scope of the quotation and parody exceptions, as well as recent jurisprudence of the High Court on the reporting current events exception in the Fanatix case. Acknowledging that (Brexit apart) the scope of much of the law will fall to be determined eventually by the CJEU, the talk will reflect on changes in the approach taken by that Court to the interpretation of permissible exceptions in Article 5 of the Information Society Directive, and speculate as to whether (and what) further legislative change can be envisaged at the EU level."

Tickets (£25 for non-members) can be obtained from here.  

The talk starts at 6pm and is being hosted by GowlingsWLG (3 Waterhouse Square, 142 Holborn, London EC1N 2SW).  In case further inducement is required, there will be drinks until about 8 afterwards.  

The CopyKat

Pirate Party MEP Julia Reda has 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 the EU copyright term. The Anne Frank Foundation has claimed that despite Anne's death in 1945,  the Diary is still protected under EU law as the co-author of the Diary was Anne's father Otto, who 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 (its available on Kindle for as little as $1.99) - its just she did't want to pay to read it - and her 'struggle' somewhat pales into insignificance when compared to Frank's own persecution at the hands of the Nazis. The Register has more here.

YouTube is promising to update its Content ID system - not just to appease the record companies and movie studios who complain about it is remarkably unsophisticated nature - not least as Google are 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. Following the update to Content ID which YouTube says will take place in "the coming months," YouTube will continue collecting revenue from those disputed videos, holding it 'in a kind of escrow' and releasing it to the eventual winner of any copyright dispute. More CBC.

The High Court in Johannesburg has found that news articles can be protected by copyright law. The Court held that the Copyright Act provided that literary works‚ including news articles‚ are eligible for copyright if they are original finding that Moneyweb had been able to prove that three of its seven articles used in part by defendant Fin24 were original works. However‚ the court found that Moneyweb had failed to show that Media 24’s financial website Fin24 had reproduced substantial parts of two of the articles found to be original works.

The UK government has published its strategy for tackling IP infringement over the next four years. The document reveals some interesting times ahead, including a review of the effectiveness of notice and takedown regimes and the possibility of rightsholders tracking down infringers within them. The strategy Protecting Creativity, Supporting Innovation: IP Enforcement 2020 has six key points, with reducing the level of illegal online content placed at the top of the list and strengthening the law closely after. The government also wants to increase its educational programs with the aim of building respect for intellectual property. TorrentFreak explains all here. Image (c) Ben Challis. Yes, really!

Billboard reports that anti-piracy firm Rightscorp is questioning its own viability after releasing some dismal first-quarter financial results. The company reported an operating loss of $784,180 during the three months ended March 31, a slight improvement from the $930,000 loss a year earlier. But the bad news is that Rightscorp only generated revenues of $68,283, a 78 percent drop from 2015 Q1’s $307,904, and its services accrued only $49,142 due to copyright holders -- a third of the $153,952 gathered during the first three months of 2015.

Copyright Education and Awareness Symposium

One of the symposium panellists 

From 1709 Blog friend Nic Fearon-Low (UK Intellectual Property Office) comes the news of a forthcoming event that looks fairly interesting.

Here's what Nic writes:

"What would bring together representatives from the creative industries, academics and policymakers? A chance to discuss how to improve the impact of copyright education initiatives and the research that informs and underpins them? Yes indeed!

On 24 May the BPI will play host to a gathering of people across these communities to assess the effectiveness of copyright education and get a grip on what research and initiatives are out there, what is working and what can be improved as we look ahead.

Creativity and innovation are important drivers of economic development.  They are crucial to the character of our society. Too often a lack of understanding or respect for the work of others means that creators are not properly recognised or rewarded for their work. The challenge is to educate people, particularly the next generations of consumers and creators, as to the value of IP and especially copyright.

The response to this challenge from industry, academia, government and others has been to come up with a range of initiatives to help improve understanding and change behaviour, from the work of Creative Content UK and the Industry Trust for IP Awareness, Into Film and Copyright User, to games, competitions and resources generated by the IPO. And increasingly much of this work is being done in collaboration. As Mike Weatherley – the Prime Minister’s former IP adviser pointed out - there is scope for more and greater collaboration, sharing of insight and resources in order to have a greater impact.

This is where the Copyright Education Symposium comes in. Sponsored by CREATe, ALCS, CLA, ERA, PRS for Music, The Industry Trust for IP Awareness and supported by the IPO, the event will be opened by IP Minister, Baroness Neville-Rolfe and PRS for Music CEO. Firstly it will provide an opportunity to showcase the work of industry, academia and government. Secondly, with an ambitious agenda, it will aim to tackle a range of issues via workshop sessions including: how can we best measure attitudes, perceptions and behaviour towards copyright; how do we better promote research findings; and how do we use this research to inform better policy making.

The Symposium will not just be a talking shop. It has a clear aim of increasing awareness and encouraging sharing and collaboration to improve the effectiveness of copyright education. It will also aim to create consensus within the community and create a foundation to continue the conversation beyond the event.

If you would like more information about the event or would like to participate, there are limited places left. Please get in touch with us at caesymposium@gmail.com before 16 May."

The CopyKat

Maurice Ravel in 1925

There were a myriad of reports that almost 90 years after it was first performed in Paris, the copyright in Maurice Ravel's "Bolero" expired on May 1st. Ravel died in 1937.  Written in 1928 and performed on November 22nd of that year at Paris' Opera Garnier, the symphonic work, which grows steadily louder as it progresses, was originally a ballet piece ordered by Russian dancer Ida Rubinstein, a friend and sponsor of the French composer Ravel and famously was danced to by Olympic gold medal winning ice skaters Torvill & Dean in 1984.  More here. HOWEVER ...... France’s Society of Authors, Composers and Music Publishers (SACEM) has now been presented with a dossier which seeks to take advantage of a legal loophole which could extend Bolero’s international copyright - worth an estimated €1m a year - for another 20 years. The challenge is based on the fact that Bolero was originally a score for a ballet and whilst it is not disputed that Ravel wrote the music, the challengers claim that the original choreographer, Bronislava Nijinska, and the director and scene-maker, Alexandre Benois should be credited as joint authors. As Benois died in 1960 - the argument is thus the final term of copyright must run from HIS death? SACEM, the body that administers copyright payments in France, said that it had rejected the claims as baseless. The copyright of Bolero belonged to the composer Ravel alone, the organisation told the Independent.

Germany's lower house of parliament, the Bundestag, overwhelmingly passed a bill for a new Act on Collective Management Organisations (CMO Act) on Thursday, April 28. The new law replaces the 50-year-old Copyright Administration Act. More here. 

Canadian singer/songwriter Nelly Furtado, who has sold more than 40m records worldwide is the latest artiste to hit out at Google's seeming reluctance to 'play fair' with payments to artistes from YouTube streaming - rightly pointing out that as a technology company YouTube has been fairly poor at developing software that can identify and remove infringing content. In a blog the Grammy Award-winner discusses the recent wave of artists standing up to YouTube over royalty payouts – and adds her name to the cause. 

The US Supreme Court has agreed to hear Star Athletica, LLC v. Varsity Brands, Inc. where the court will rule on the appropriate test to determine when a feature of a useful article is protectable under section 101 of the Copyright Act [text]. The case deals with designs on cheerleader uniforms, but the case is expected to have a broader impact. The US Court of Appeals for the Sixth Circuit had ruled that Varsity Brand's designs were copyrightable. Image by Jeff Hitchcock from Vancouver, BC, Canada.

A new bill in the U.S. House of Representatives is being introduced in Congress this week which would give producers, engineers and mixers a piece of the digital royalty pie. The Allocation for Music Producer Act, or AMP Act (H.R. 1457), is being formally introduced by congressmen from both sides of the aisle: Reps. Joe Crowley (D-New York) and Tom Rooney (R-Florida). The AMP Act would create a statutory right for producers to receive royalties that would be managed through CMO SoundExchange.

An Australian government commission, the Productivity Commission, has published a new reports on copyright exploring how well Australia's intellectual property laws are working. Titled  "Copy(not)right" you can probably guess that the report is not very sympathetic to current regime and holds the opinion that Australia’s copyright arrangements are "weighed too heavily in favour of copyright owners, to the detriment of the long-term interests of both consumers and intermediate users. Unlike other IP rights, copyright makes no attempt to target those works where ‘free riding’ by users would undermine the incentives to create. Instead, copyright is overly broad; provides the same levels of protection to commercial and non-commercial works; and protects works with very low levels of creative input, works that are no longer being supplied to the market, and works where ownership can no longer be identified."  More on TechDirt. 

The New York Appellate Court has agreed to rule on the case which Flo & Eddie from 60's band The Turtles have brought against Sirius XM Radio over the issue of whether the copyright owners of recordings made before 1972 have a common law right to make radio stations and others pay for their use. The case has been referred to the Court of Appeals from a federal appeals court. Federal law established limited copyright protections to recordings after Feb. 15, 1972, while preserving state law property rights on earlier recordings.

Green members of the French National Assembly have voted to strike Hadopi from France's lawbooks - and with just 7 MPs in the house, they had  enough members to see the motion to remove the law from the statute books in 2022 passed. It's unlikely the motion will pass the Senate, but the Greens have used the opportunity to call attention what they say is the "uselessness and expense of Hadopi." French President François Hollande called for the end of Hadopi before his election, a position he later retracted.


The leaders of two major Android app piracy groups have pleaded guilty to copyright infringement charges. Aaron Blake Buckley (22) and Gary Edwin Sharp II (29), ran the Applanet and SnappzMarket groups before they were shut down by the FBI in 2012. U.S. District Judge Timothy C. Batten Sr. of the Northern District of Georgia will pass sentence in August.

And finally - The CopyKat's profound thanks to qurgh lungqIj who made some wise and lucid comments, correcting my headline for the article on the Klingon Language. I have never been advised on and in Klingon - thankfully this time with translations into English! Forbes have also published a very interesting article on WHY the film companies behind the Star Trek series and films (CBS and Paramount) are taking action - having previously ignored or tolerated fan fiction, fan films and the like. 

Universal and Capitol fly high with copyright win

Universal Music and Capitol Records have obtained summary judgment against IFP and parent company Global Eagle, an in flight music licensing company, and the two recoded music companies can 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."

IFP is a worldwide provider of in-flight entertainment from movies to songs and IFP provided American Airlines (and later US Airways) with music playlists obtained via physical CDs and digital downloads. In 2008 the company approached the major labels for a deal and what followed has been described as a "few years of painstaking negotiations over advances and revenue apportionment, complicated by some catalogs not being available for in-flight licensing as well as IFP not wishing to let the cat out of the bag about the lack of licenses."

Added to this was the fact that although IFP was based in Los Angeles, and had completed some of the early reproduction work there, the company said that duplication and encoding was taking place in the U.K. under a different licensing regime. Added to this was the position advanced by IFP that it had reached oral or implied license and that the record companies committed fraud and tortiously interfered with its contracts with American and United. 

In his summary judgment ruling, U.S. District Judge George Wu wrote: "At best, there is evidence that the parties discussed various terms, but never reached any final agreements" and further, "There is ample evidence that IFP knew it had no licenses from Plaintiffs and that it could be sued for copyright infringement, and no evidence that Plaintiffs ever indicated to IFP that any such licenses were forthcoming or misrepresented any existing fact."

Wu also found that IFP acted wilfully by collecting money from airlines for copyright licenses in anticipation that it would one day have to make amends. The judge wrote: "As Plaintiffs aptly state, '[i]f IFP’s infringements were not wilful, no infringements could ever be.'”

Judge Wu also had to decide on the issue of pre-1972 sound recordings not protected by federal copyright law, but now being interpreted under state law to protect against misappropriation. To this, IFP threw up an argument that such claims were pre empted by the federal Airline Deregulation Act, but that argument failed because in-flight entertainment is deemed as a "service" under the statute and that the connection with state law claims is substantial. 

The case is now set for a damages trial on May 10 with more than 4,500 copyrights involved. 

http://ipkitten.blogspot.co.uk/2016/05/universal-music-secures-summary.html

http://www.hollywoodreporter.com/thr-esq/universal-wins-big-ruling-copyright-886886

Image: CuriMedia  https://www.flickr.com/people/14035760@N03

q bljeghbe'chugh vaj blHej (our first headline in Klingon)

The lawsuit between Paramount Pictures, CBS studios and the producers of the crowdfunded Star Trek spin-off "Prelude to Axanar" just keeps giving. And this week the not for profit Language Creation Society submitted an amicus brief in support of the filmmakers - arguing that the use of the Klingon language shouldn't be restricted in any way by the film company rights holders. The brief notes that “No court has squarely addressed the issue of whether a constructed spoken language is entitled to copyright protection,” and conclude that “Klingon gave Star Trek characters convincing dialogue. But, it broke its chains and took on a life of its own— a life that the [US] Copyright Act has no power to control.”  

The suit, filed by attorney Marc Randazza argues that while Paramount Pictures created Klingon, the language has "taken on a life of its own" as a real language - and a real language is incapable of being protected by copyright - so "Paramount Pictures lacks the 'yab bang chut' or 'mind property law' necessary to claim copyright over the Klingon language":

The language was created by Mark Okrand who was commissioned to develop the language by the two claimant film companies, and the language was adapted and extended in subsequent films and TV programmes.  But the language does seems to have taken on a life of its own: There is (after all) the Klingon Language Institute in Pennsylvania, which promotes the Klingon language and culture - and you can study the language at the Osric University, "a non-accredited degree granting institution" that conducts Klingon studies via the internet, Back in 1995, Anita Karr taught herself Klingon and submitted her degree dissertation on the Klingon Language when she studying at Portsmouth University for her BA in applied linguistics: There are Klingon dictionaries, phrase books, on line tutorials and poetry. You can attend conventions dressed up in your finest Klingon battle armour ... teach your child Klingon ..... and there are even Klingon weddings. 

Charles Duan from consumer group Public Knowledge said in a Blog post: "There would be great danger to allowing the copyright power to extend to prevent others from speaking a language" 

This brief might have legs!  Paramount and CBS take note - q bljeghbe'chugh vaj blHej - Surrender or die is a popular Klingon phrase. Is it time for CBS and Paramount to leave this particular battle at warp speed? 

But let's remember the claim includes some 57 instances of infringement - its not just about the Klingon language:  These similarities are divided into categories like characters (including Garth of Izar and Vulcan Ambassador Soval), races and species such as the Vulcans, Romulans and Tellarites, costumes, settings like the planet Axanar and the Klingon planet Qo’noS, as well as spacedocks and the Starship Enterprise, logos like the Federation logo, and plot point similarities including the concept of dilithium crystals, phasers, and the Klingon Empire.

Torrentfreak explains all.

http://www.the1709blog.blogspot.co.uk/2016/03/we-come-in-peace-phasers-to-kill.html

Some useful phrases in Klingon here: http://www.omniglot.com/language/phrases/klingon.php