THE COPYKAT

1)    Record Labels in the United States claim Copyright Infringement against COX

In another US case on the question of liability of intermediaries such as Internet Service Providers and the ambit and threshold required to prove  Contributory/Secondary infringement, US Magistrate Judge, Judge F. Anderson has taken a stance on evidentiary presentations and has blocked the request of COX to not admit certain evidence presented by the Record Labels due to alleged non-credibility, as reported by Law 360. COX had gone on to argue certain issues with the credibility of the evidence, wherein they said that the record labels had not kept all the data related to the finding of infringement (worked by the Record Labels in collaboration with Anti- Piracy agencies – Mark monitor and Audible Magic) on record.

For a claim of such secondary liability to be conclusively established, firstly a user having performed primary infringement must be shown, after which, the burden shifts upon proving actual knowledge of the infringement with the intermediary, and a positive role in promoting the same. A safe harbor protection is available to the intermediaries, which do not conclusively pursue an actual knowledge of infringement. The main argument brought in by the record labels herein is that the ISP COX deliberately had shoddy systems for dealing with infringement and infringers on their networks and produced certain evidence on it, using the worked data, but not all of it. The Judge went on to hold that, whatever is the issue with the evidence, it needs to be brought before the jury, and cannot be blocked, due to such reasons. The court concluded (as reported by Complete Music Update) that the labels weren’t under any obligation to keep all the data which they and their partners had gathered, on record.

2)    Robert “Bobby” Prince sues Gearbox, its President as well as Valve for unauthorized exploitation of copyrighted music.

The original music for the video game Duke Nudem 3d was created and composed by music composer Robert Prince, but has seemingly been used without unauthorisation (without a license or a compensation) by Gearbox Software LLC., in its new game - Duke Nukem 3d World Tour. Further, these allegedly infringing copies were conveniently distributed by another defendant, “Valve Corporation”, which even ignored a takedown notice, hence denying a claim to safe harbor. Another interesting fact to note is that the allegedly infringing game includes text specifically giving accreditation to Mr. Prince for his music, but has not compensated or even contacted Prince to get a license in the use. In light of the same, Robert Prince has filed an infringement suit in the United States District Court Eastern District of Tennessee, Northern Division. The Petition can be found here.  The game is supposed to be released on October 11^th and It will be interesting to see, how this one plays out.

3)    CJEU clears the air over conflict between Design and Copyright Protection and the ambit of Copyright.

The CJEU, in the case of Cofomel (C-683/17) decided on the issue as to whether Copyright would subsist in the designs of G-Star Raw’s Jeans and T-Shirts. The question peculiarly concerned itself with whether member states had the freedom to choose the threshold which works of applied art, industrial designs and works of design are required to meet for Copyright Protection. The Court held that, even in the cases of functional products, the ambit required for it being a work is the same and that is “the author’s own intellectual creation”, that is one reflecting free and collective choices, which could give the non-functional aspect of the work, Copyright Protection. Most importantly, as reported by IAM Media, the judgement makes it clear that an analysis of artistic merit or aesthetic impression need not be done, as it is extremely subjective and non-precise, to conclude whether a work is copyrightable or not.

This makes it clear that the aesthetic aspects of useful articles can also be protected as Copyrightable, insofar as they fulfill the originality standard of “Author’s own intellectual creation”. Read more on this on the IPKAT.

4)    STAIRWAY TO HEAVEN back in court!!

The US Deptartment of Justice had recently released their Amicus Brief in favour of Led Zeppelin in the now infamous copyright suit, covered herein by the blog. In a latest update to this case, as reported by The Rolling Stone, the case started with a filing by Michael Skidmore, a trustee representing the estate of Randy Wolfe, and this accused Led Zeppelin of stealing the opening guitar riff from Spirits' 1968 instrumental track Taurus. The case is now back in court before an 11 judge bench in the 9^th Circuit US Court of Appeals. A request to make available the sound recording was made and a claim was brought in by the plaintiff attorney saying that if these were made available, Led Zeppelin would lose out on the case. However the court observed that if the law limited the claim to the 4 corners of the deposited sheet music, and the currentthinking is that the justices feel that on that basis there was no chance the plaintiff could establish an infringement. Led Zepplin's attorney Peter Anderson argued that “There is no similarity between these two songs, but they both combine a scale, little pairs of notes that are in different melody and an eighth note rhythm.” It will be interesting to see how the court proceeds this time, in light of the Justice Deptartmen's Amicus brief.

5)    GOOGLE undercuts new EU Copyright Law

Google has decided to not pay European Media Outlets to display and use their content on its search engine and Google News platform. It has decided that it will only portray content from those media groups that have allowed free usage of the content. The EU Copyright legislation was brought in to ensure that media companies could get adequate compensation for the display of their items on platforms of these tech giants, however google has played a trump card, mostly propagating free content higher access philosophy. Google’s vice president has announced that it is upon the Europe based news published to decide if it would allow Google to show “snippets” of content or thumbnail images, however there will be no compensation paid for the same. If they don’t allow, only a headline and a bare link to the content will appear in the results. This is a major blow to media organisations which hugely depend on Google for facilitating access and to reach out to more of online audiences. This move by Google has been criticised by the EU Copyright rapporteur, referncing the move as a 'digital dictatorial' practice, with an intention to create a monopoly. This move makes the situation even worse for the publishers. This move has taken place post French legislating this EU directive in its Domestic Law. In Germany, recently after the EU Directive was complied with, some publishers decided to allow Google to publish their content free of cost, due to a drop in traffic (as hreported by Politico). In light of this, it will be very interesting to see the implications of the same and how this practice affects the news industry in the future across Europe.

This update by Akshat Agrawal

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.” 

THE COPYKAT

1)    YouTube in the NEWS

In the last fortnight, there have been a couple of extremely interesting developments in the copyright regime operated by the online video platform YouTube.

Firstly, YouTube has taken a step to forbid manual claims by copyright holders and specifically record companies, which is done to claim revenue upon videos including extremely short music clips or “unintentional music.” Inculcating the importance of quantitative content in a video, YouTube in a blog post has revealed this change. The reason provided for the same move reads: “These claims can feel particularly unfair, as they transfer all revenue from the creator to the claimant, regardless of the amount of music claimed.” However, although manual claiming of money has been restricted, the ability to block or disable putting ads on videos using the manual claims tool will still exist. YouTube has gone on to acknowledge that in the short run, this might result in a lot more videos being blocked, however it is pragmatically focussing on the long term impacts. Even “Timestamps” to recognise exactly which part of the video is infringing have been brought in place for all manual claims, for invoking copyright claims in a balanced and fair manner. As reported by Variety, if YouTube creators feel that their use of unlicensed content falls within the fair use bracket, they can always dispute the same in the service’s appeals process.

Now, Secondly, YouTube has resorted to the DMCA to take action and file a suit against a major alleged copyright troll whi they have identified as one Chris Brady, and who YoTube says has been making extraneous and illegitimate copyright claims. The basis of the complaint is that Brady has taken aim at the Minecraft gaming community, alleging several infringing claims against two users - not only to extort money - but to allegedly slander as well as part of the 'trolling'. It has apparently been also reported that these copyright takedown notices were allegedly abusive and involved an element of blackmail wherein the message read that the YouTuber ought to pay Brady 150 $ via PayPal, or another copyright strike would take place. This information was conveyed to YouTube after multiple efforts, finally through another video, upon which YouTube has restored the videos and filed a suit against Bardy. A false accusation suit has been filed. Upon being enquired, as reported by The Verge, YouTube has released a statement that: “We regularly terminate accounts of those that misuse our copyright system. In this case of particularly egregious abuse, where the copyright removal process was used for extortion, we felt compelled to pursue further legal action and make it clear that we do not tolerate abuse of our platform or its users.” An issue highlighted in this system of YouTube is the focus of scrutiny on the accused rather than the accuser. The assumption is an extremely good faith oriented one that focusses on every takedown request being legitimate. It is imperatively needed that a balanced approach is followed for proper implementation of the Copyright system on such vulnerable intermediary platforms.

2)    Meanwhile, Spotify catches the attention of the Copyright world, yet again

There have been two recent occasions when Spotify has hit the (legal) news - and the music streaming platform been on both sides of a lawsuit concerning copyright.

Firstly, on the plaintiff side Spotify filed their appeal, joining Amazon, Google and Pandora, on the Copyright Board’s decision regarding the rates to be paid to sing writers and music publishers under the mechanical rights regime, by digital platforms. The challenge is at its core upon the decision which increases the per song royalty rate from 10.5% to 15.1%. This increase has been brought in the first place to harmonize, to some extent, the American policy, to the prevailing international normative practice followed by various copyright societies. This move has been subject to fair amount of criticism due to the songwriters claiming inadequate payments for exploitation of their creative endeavor. In an attempt to negate the criticism, Spotify and other digital streaming companies have resorted to being okay with the rate change, however, have claimed procedural misconduct on the part of CRB. The core of the claim is on the ground of lack of stakeholder consultation and cross-evidence provision, and not the rate in principle. Further, the publishers have argued that merely offering family plan discounts or student ones do not support the proposition of low willingness to pay for streaming music. It will be interesting to see how the appeal court approaches this. Read more here.

Now, Secondly, and on the receiving end of a law suit, Spotify, as reported by Variety, has been sued by Eight Mile Style, the publishing company that hollds the rights to Eminem’s earlier works, for copyright infringement. The major claim revolves around the unlicensed exploitation and streaming of 250 of Eminem’s songs. It has alleged Spotify to have paid a mere fraction of the payments properly  due and have remitted such without any license in place. Further Spotify has also been alleged to have mischievously concealed the accreditation of certain well-known songs like “Lose Yourself” claiming inability to trace Copyright holder. Further, an obligation to live up to the responsibilities provided under the Music Modernization Act was emphasized upon, which was not fulfilled by Spotify in the present case. To claim a liability limitation under the Music Modernization act, it is imperative for Spotify to have not known the copyright owner of the composition or the work was unmatched with previous sound recordings, after proper due diligence. This also has been alleged to not have been complied with, in the suit.

3)    US Dept. of Justice release Amicus Brief in favor of Led Zeppelin in infamous Copyright Suit

Analyzing the 'thin' copyright provision in the US, the US Deptartment of Justice, giving reasons akin to that of the trial judge, sided with Led Zeppelin in the Stairway to Heaven case. previously covered here and here against Randy California, the now deceased songwriter with the band Spirit. Under old US law (the 1909 Copyright Act), sound recordings weren't conferred protection. Songs were, and pre-1978 unpublished works would be as represented by sheet music.  The song at the centre of the copy claim, Taurus, was written by California in 1968. And so surely all that could be used at the trial to determine infringement (or not) was the sheet music? The trial judge concurred.  On appeal, the 9th Circuit then decided that the sound recording should have been played plus held that the jury was improperly advised about unprotectable music elements and standards of originality. But the new opinion relies on the fact that prior to 1972, it was only sheet music that was covered under copyright and audio recording need not be heard by the jury to find out whether there was an infringement or not. The “thin” copyright protection has been emphasized upon. The DoJ's  amicus brief goes on to claim that the Ninth Circuit was wrong to overturn the finding of the lower court which stated the compared compositions to not be sufficiently similar for copyright infringement. The U.S. government explains that "even if deposit copies do not capture all details of a composition, they generally include the elements of a song, such as the melody and lyrics, that are of most importance to the copyright owner. Failure to incorporate elements such as these in the deposit copy would reflect a failing on the part of the copyright owner or its agent, not an insurmountable obstacle imposed by the statutory scheme." The Amicus Brief argues that the only similarity between the allegedly infringing work and the original is the selection and arrangement of two basic musical elements: an A minor chord and a descending chromatic scale. These have argued to not substantially be the base of the challenge as a small standard selection and arrangement gets a fairly thin copyright protection due to the “creative” standard of Originality being prevalent in the United States. Virtual Identicality needs to be proved, which has not been done in the present case according to the brief. This interpretation as a friend of the court has consciously been taken up the DoJ in order to foster intentional and sound interpretation of copyright laws. It will be interesting to see the force of this brief when ultimately deciding the case, for the second time. The amicus brief can be found here.

4)    Victory for Universal Studios in “Nightcrawler” Copyright Case

As reported by the Hollywood Reporter, a Utah Federal judge delivered a summary opinion in the 4 yearlong copyright case  dealing with the film Nightcrawler, wherein the accused Oscar winning writer director Dan Gilroy, was alleged to have plagiarised a work by Richard Dutcher called Falling. The judge devised an important precedent recognising certain scenes a faire elements in films and eradicating the same from the scope of the analysis of any copyright infringement. In the opinion, the District Judge held that to establish a copyright claim there are two separate enquiries to be undergoneL The first is whether the defendant factually copied portions of plaintiff’s work, and second being those expressions that have been copied are protectable expressions and important to the copied work, citing Gates Rubber Co. v. Bando Chem. Indus Ltd. It is imperative for protected elements to be copied. The abstraction test requires separation of non-protectable ideas and then warrants a mere comparison of the protectable elements.  Here the court looked at what elements were “standard, stock, or common” to the stringer (newsman) profession and material that necessarily followed from that theme and setting (citing Autoskill 994 F.2d 1494). The court held that Falling is not the first film to portray stringers in action and on a review of previous stringer films, it was found that there were no independent claims in Falling that did not exist state of the art. The court held the similarities between Falling and Nightcrawler were (primarily) due to both focussing on the role of the Stringer. Apart from these generic similarities, the court held the plots to be quite different. The court also held the cliché journalistic phrases found in Falling as non-protectable and were scenes a faire expressions. After deducing these elements, the court used the ordinary observer test to eradicate infringement claims, holding the aesthetic appeal to be different.

This CopyKat from Akshat Agrawal

ReDigi: Distribution of Digital Content via the Internet; Exhaustion of the Right of Distribution; Is a Statutory Licence the Answer?

REDIGI; DISTRIBUTION OF DIGITAL CONTENT VIA THE INTERNET; EXHAUSTION OF THE RIGHT OF DISTRIBUTION: IS A STATUTORY LICENCE THE ANSWER?

The appeal decision in Capitol Records v ReDigi issued December 2018 did not attract anywhere near the same attention as the 2015 trial decision.  Presumably this was because audio streaming has largely replaced audio downloads and consumer demand for a web marketplace facilitating second-hand sale of such downloads has dissipated.  Or possibly, at least so far as lawyers are concerned, because the Court of Appeals confined its decision (although not its reasoning) to infringement by reproduction.  The District Court finding that the first sale doctrine was not drafted so as to apply to distribution over the internet. 

Nevertheless, the appeal decision was another reminder that there are still unresolved copyright issues arising from the ‘distribution’ of intangibles such as the delivery of digital files over the internet, especially at the consumer end of the delivery chain.  Despite the WIPO ‘Internet treaties’ concluded 23 years ago copyright law is still more tuned to distribution of tangible objects that may constitute or contain copyright works. 

For example, the making of new copies is an inevitable part of online distribution of digital content.  And not just for uploads and downloads, but also for streaming, despite the transient nature of the part copies created within that technology (to be discussed in an upcoming blog).  Second, Redigi serves as a reminder that there are fundamental copyright exhaustion issues which have to be addressed and resolved for the digital world.  Should section 109 of the US Act be amended to ensure first sale of a digital file over the internet exhausts the distribution right?  Similarly in the EU, although their issue must be expressed as: should first sale of intangible content exhaust the copyright holder’s communication right?

As argued at the WCT negotiations in the 1990s the US, unlike the EU, considered the distribution right included communication and that they had no need to create a new communication right as had been proposed by WIPO.  But clearly both the US and the EU either overlooked first sale exhaustion for internet communicated works or decided they did not want it. 

And should jurisdictions that do not have legislation to exhaust either distribution or communication rights – like New Zealand and Australia – start reform programmes to achieve this?  Should exhaustion be an international outcome for a given set of circumstances?  If so should there be any exceptions? 

Exhaustion is primarily a commercial issue rather than a legal issue.  The ReDigi trial court noted a report from the US Copyright Office that pointed out that second-hand digitised content files remained in perfect condition, unlike, say, second-hand paper books.  Allowing the sale of perfect digital replicas by download at a price cheaper than the price required on first sale by the copyright holder under a first sale doctrine could be seen as a disincentive to publish.  Maybe this was the rationale for the exhaustion provision in Article 6(1) of the EU InfoSoc Directive being restricted by the associated Agreed Statement: ‘As used in these Articles, the expressions “copies” and “original and copies,” being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects.’ 

On the other hand Jessica Stevens at the Queensland University of Technology argues for exhaustion of the distribution right even in such a circumstance because she sees the issue as a cultural or moral one.  For example, with university text books becoming digitised the long established student practice of selling a text book second hand when a course has been completed has become unlawful.

The CJEU will soon be deciding on the references to it from The Court of the Hague in the Tom Kabinet case and giving its further views on exhaustion of the ‘distribution right’ for second hand sale of eBooks.  Tom Kabinet is a Dutch company which is virtually a mirror image of ReDigi except it trades in eBooks rather than iTunes.  It relies on the 2012 CJEU decision in UsedSoft to provide for exhaustion despite the works it is dealing with not being software and which could be expected to fall under the InfoSoc Directive (which excludes exhaustion of the communication to the public right) rather than the Computer Program Directive which contrary to the WCT does not provide a communication right for software.  The issue is unlikely to be comprehensively resolved and advocates for exhaustion will no doubt continue to argue for legislative change to bring the distribution/communication of intangibles into line with that which applies to tangibles.

ENTER THE LICENSING DOMAIN

Contrary to the CJEU this blogger is adamant that the correct legal classification of a commercial transaction resulting in the delivery of an intangible such as software or digital content over the internet is a licence and not a sale.  It is surprising that this issue was not dealt with in ReDigi, bearing in mind the structure of Apple’s iTunes agreement. Putting that aside, it is suggested that exhaustion advocates should adopt and extend the traditional English common law substitute for exhaustion of IP rights, namely the concept of an implied licence to ‘resell’.  As Sir Robin Jacob stated at the 27^th Fordham IP Conference, doctrines of exhaustion of IP rights were unknown in English law and instead it was always considered that an implied licence to resell ran with the patented or copyright ‘goods’. 

It is not just that the written contracts for internet deliveries are ‘dressed up’ as licences (as the CJEU thought in UsedSoft v Oracle) and contain the terms that are only befitting of a licence, but also that the technological process for a download necessitates a licence.  Unlike the situation for the supply of tangibles where the copyright holder makes each and every copy which is subsequently delivered to each acquirer, with internet deliveries it is the acquirer, not the supplier, who makes the copy he/she will retain for their private use.  The internet delivery is facilitated by: (i) the supplier making a temporary copy on its server, (ii) dividing it up into packets, (iii) transmitting the packets over the internet to the acquirer’s computer device where (iv) the received packets are assembled into a digital file (which is a copy of the one held on the suppliers server) which is (v) loaded onto the hard disk of the computer device.

The acquirer could not lawfully make this new copy without a licence from the supplier/copyright holder.  The acquirer holds his copy under licence.  It has not become his property by any transfer of title under a sale agreement so as to allow him to do whatever he likes with it, including selling it second hand.     

Having now entered the licensing domain this blogger suggests that content exhaustion advocates pursue a statutory licence to allow ‘second hand sales’ of internet delivered content.     

How about statutory provisions vaguely along these lines:

1. A licensed private user of a copy of content in the form of a digital file has the right to assign his/her licence from the copyright holder to another private user so as to allow that user to make a single copy of that digital file, provided:
2. The first licensee then immediately deletes his/her copy of the file.
3. Any term in the copyright holder’s licence which purports to exclude or limit the operation of sub-section (1) will have no effect.

Copyright make-up tips - How to make a lasting impression

The 1709 Blog is happy to host this guest contribution by former 1709 Blog team member Hugo Cox (Hamlins LLP) on a recent decision of the High Court of England and Wales concerning copyright and make-up.

Here's what Hugo writes:

Copyright make-up tips - How to make a lasting impression

by Hugo Cox

One of the basic requirements for copyright protection in the UK is ‘fixation’ – the work has to have material form.

But what happens if the work loses its material form? Does the copyright protection disappear too? This question is of some significance to those who create things that do not last, whether they are disposed of, eaten or otherwise annihilated…

The question has now been decided in Islestarr Holdings Ltd v Aldi Stores Ltd, a judgment delivered on 17 June concerning the make-up powder palettes below:

Islestarr had been selling its Filmstar Palette since 2013, retailing for about £49 and clocking sales to date of £12.9m. When Aldi began selling its palette for £6.99 (reduced to £4.99), Islestarr sued for copyright infringement, pointing to Aldi’s slogan ‘Like brands, only cheaper’.

Aldi resisted the claim arguing, among other things, copyright could not subsist ‘in such a transitory medium as the top surface of a powder as the purported copyright work is not thereby fixed.’

The judge took a different view:

I am in no doubt that the design embossed into the powders can be subject to copyright protection in principle. Otherwise, artistic works by, for example, persons who make sculptures out of sand at low water on a tidal beach, which are then washed away, could have no claim to copyright in, say, a pre-construction sketch or photograph of the completed work. Likewise, I can see no reason why the creator of a bespoke wedding cake could not claim copyright in his or her work. The fact that the design in the powders disappears by being rubbed away by the user, does not, in my judgment, affect or remove the copyright protection to which such an artistic work is entitled, as that is as set out as a visual record in Annex 4. In other words, the powders are a three-dimensional reproduction of the two-dimensional object, namely the drawing.

Certainly, this conclusion is aligned with the CJEU’s recent ruling in Levola Hengelo on whether the taste of cheese can be protected by copyright. The CJEU reasoned:

Accordingly, for there to be a “work” as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.

The judge in our case then determined:

• Though copyright does not protect individual words (such as the words SCULPT and HIGHLIGHT embossed on the powder), copyright did subsist in the presence of the words as part of the overall artistic work.
• Though Art Deco has inspired the Islestarr designs and Fabergé and others had manufactured objects decorated with sun rays and diamonds, Islestarr had made their own intellectual choices in creating their designs.
• Aldi had admitted being aware of Islestarr’s packaging, there were substantial similarities between the designs and Aldi failed to persuade the judge those similarities did not result from copying.

He therefore decided to award summary judgment against Aldi.

Transient creations are not, it seems, at least in the eyes of UK copyright law, so transient after all.

THE COPYKAT - in the wake of "Blurred Lines" - more blurred lines

There have been two major US decisions in the word of music and sound recordings with a win for Kraftwerk and a loss for Katy Perry, and in the background a third (the Led Zepplin "Stairway to Heaven" case waits for an upcoming an en banc appeal in the Ninth Circuit, and a fourth involving Ed Sheerhan in turn waiting for that decision (Sheerhan v Townsend) with Judge Louis L Stanton acknowledging that as the appeal judges will be considering some copyright technicalities that are very relevant to the 'Thinking Out Loud' action, even if not binding, to proceed with Sheerhan case in "wilful ignorance" of their conclusions would be "folly". 

First off - sampling: The European Court of Justice sided with German electronic music pioneers Kraftwerk, ruling that unauthorised sampling of even brief clips of a sound recording can constitute copyright infringement as long as they are recognisable, in a long running case that has added some clarity to how sampling should be treated in the European Union. Kraftwerk brought the action against hip-hop producers Moses Pelham and Martin Haas in 1999 over the Sabrina Setlur track “Nur Mir”, which revolves around a two-second snippet of Kratfwerk's “Metall auf Metall” used as a loop.

In 2012, Germany's Federal Court Of Justice found in favour of Kraftwerk, in part on the basis that Pelham could have easily recreated the sound he sampled, so clipping the snippet out of 'Metal On Metal' was just laziness. Four years later the German Constitutional Court overturned that judgement, deciding Pelham's "artistic freedom" had to be considered - and that the negative impact on Kraftwerk caused by the uncleared sample wasn't sufficient to outweigh the sampler's artistic rights. The case was then referred to the CJEU.

Making clear the difference between sampling a recording and copying part (or all) of a song, Advocate General Maciej Szpunar wrote in his opinion "A phonogram is not an intellectual creation consisting of a composition of elements such as words, sounds, colours etc. A phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself" adding "Consequently, although, in the case of [other creative works], it is possible to distinguish the elements which may not be protected, such as words, sounds, colours etc, from the subject-matter which may be protected in the form of the original arrangement of those elements, such a distinction is not, however, possible in the case of a phonogram".

In the second major case, a jury has now ruled that the Katy Perry song Dark Horse does plagiarise a Christian rap song. After two days of deliberations, the jurors concluded that Perry's team had likely heard 2008 release 'Joyful Noise' before writing 'Dark Horse', and that the latter was sufficiently similar to the former to constitute copyright infringement.

Both producer Dr Luke, a co-writer on Perry's hit and Perry herself said they had never heard of 'Joyful Noise' nor heard of the artist behind it, the rapper Flame, real name Marcus Gray - before they started work on their song and recording. Gray's team argued that there had been many opportunities for Perry and her co-writers to to have heard 'Joyful Noise' and argued that whilst the copying may not have been deliberate,  her team had subconsciously infringed the earlier work. Gray's legal team also also pointed to the similarities between the two songs - each share a distinct musical phrase consisting of four C notes followed by two B notes. Perry's legal team argued that this was a very common musical phrase that couldn't possibly be protected by copyright. Luke added that if the court did indeed decide that a musical phrase of this kind enjoyed copyright protection, it could set a dangerous precedent that would impede the music making process.

They're trying to own basic building blocks of music, the alphabet of music that should be available to everyone," said Katy's lawyer Christine Lepera during her closing arguments in court last week, but the jury has accepted that this was copyright infringement. The case now goes to a penalty phase, where the jury will decide how much Perry and other defendants owe for copyright infringement.  Jurors found all six songwriters and all four corporations that released and distributed the songs were liable, including Perry and Sarah Hudson, who wrote the song’s words, Juicy J, who wrote the rap he provided for the song. Other defendants found liable included Capitol Records as well as Perry’s producers: Dr. Luke, Max Martin and Cirkut, who came up with the song’s beat.

A wide array of artists – including Korn, Tool, Sean Lennon, Linkin Park and  Jason Mraz have joined the amicus brief submitted in the ongoing ‘Stairway To Heaven’ case, supporting the British rock band in their arguments and calling on the judges in the Ninth Circuit appeals court to uphold the earlier ruling that Led Zeppelin did copy ‘Taurus’ when they wrote their 1971 classic. In total 123 artists support the amicus brief saying that if the original ruling in the ‘Stairway to Heaven’ case is overturned it could create a dangerous precedent that would be hugely detrimental to songwriting and an assumption that “trivial and commonplace similarities between two songs could be considered to constitute the basis for a finding of infringement” and that this would confuse artists, stifle creativity, and result in “excessive and unwarranted” litigation by artists and lawyers seeking to profit from ambiguities in the law.

Rolling Stone magazine published the article Why All Your Favorite Songs Are Suddenly Being Sued? asking asking why is so much music being hit with lawsuits, in a trend a trend that shows no sign of slowing. You can find that here and more comment and analysis here (from Professor Edward Lee in the Washington Post) 

Major US broadcasters ABC, CBS, Fox and NBC Universal have filed a lawsuit against an upstart online TV service offering free over-the-air digital TV service. The suit filed in U.S. District Court in New York alleges Locast owner, New York-based non-profit advocacy group Sports Fans Coalition violates broadcaster copyrights streaming content to users for free. The suit is similar to 2013 litigation brought by studios against Aereo, the defunct OTT service that transmitted digital signals to subscribers via over-the-air antennas. The litigation also pits broadcasters against AT&T, which owns and operates WarnerMedia — although the telecom is not party to the lawsuit. More here and here. 

And more from the US: Bloomberg Law reports that a battle over banana costumes continues in federal court with one manufacturer under order to stop selling full-body banana suits because they likely infringe another’s valid copyright.  The U.S. Court of Appeals for the Third Circuit affirmed a lower court’s order stopping Kangaroo Manufacturing Inc. from selling banana costumes that are confusingly similar to plaintiff Rasta Imposta’s copyrighted design. Rasta’s copyright is valid because it didn’t “monopolize the underlying idea” of a banana, the court said. More here. 

And finally - copyright notices - serious business yes? It seems not always! Techdirt have been doing some digging and have found some very amusing notices that certainly do not fit in with the prescribed formats: How about ""No part of this publication may be reproduced, stored in a retrieval system, cookie jar or spare room... Unless you want to write the whole thing out in green crayon, in which case feel free." and "This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, carried across the country by relay, fired into space, turned upside down, eaten... On pain of death."

Kraftwerk Image Nigel Hardy https://www.flickr.com/photos/92352391@N00/35441036106

BOOK REVIEW: Copyright and the Court of Justice of the European Union by Eleonora Rosati

Copyright and the Court of Justice of the European Union by Eleonora Rosati [Oxford University Press, 2019, ISBN: 9780198837176, #pp273, £70.00, h/bk]

This title focuses on the Court of Justice of the European Union (CJEU), primarily its role, action, and its legacy in the area of copyright law. In light of the fact that copyright policy and legislative initiatives have intensified over the past few years, the book provides a thorough overview of the existing copyright framework, together with an exclusive survey that covers two decades of CJEU decisions in this area of the law – up to August 2018. In doing so, it explores all the key and controversial issues in EU copyright from EU reform proposals (value gap, press publishers' right, fair compensation for private copying, and out-of-commerce works) to the impact of Brexit. 

I. STRUCTURE OF THE BOOK

As such, the book is presented in three main parts. The first part is looks at the role of the CJEU as an EU institution, the second considers the action of the CJEU and the third part focuses on the CJEU legacy. 

A. Part One: EU harmonization and the functioning of the CJEU 

Chapter one provides an overview of the history of EU harmonisation from the adoption of the 1991 Software Directive and explains the structure, composition and work of the CJEU. It also looks at the references for preliminary ruling, including data on areas of the cases referred to, the referring Member State Courts, intervening Member States, Judges-Rapporteur and Attorney Generals (AG). The research demonstrates the expansive approach to copyright protection, whereby the CJEU tended to agree with the AG opinion when it favoured copyright holders. 

Chapter two focuses on the standards consistently applied in copyright rulings using a data-based case law analysis to demonstrate the principles and policies the CJEU have utilised in the development of EU copyright law. The second part of this chapter provides novel statistical analysis that illustrates the relations between such standards. 

B. Part Two: CJEU Action 

The second part looks at how the underlying principles discussed in Part One play out in specific cases relation to: 1) the construction of economic rights [chapter four], 2) limitations and exceptions [chapter five], 3) enforcement [chapter six]. It delves into the question of whether the CJEU action, which has decreased flexibility at national level and expanded harmonisation, exceeds its competence as an interpreter of EU copyright law. 

This part is made up of four chapters. Chapter three demonstrates the CJEU activity that has extended the boundaries of harmonisation further than the legislation alone, building substantially those areas of law beyond the legislative framework. The conclusions drawn show the common patterns of the CJEU in constructing a copyright system based on high-protection, harmonisation and the development of the internal-market. 

C. Part Three: The Legacy of the CJEU 

The third part focuses on the legacy of the CJEU, specifically from the perspective of the impact on national copyright laws [chapter seven] and of existing case law in the context of current policy discourse around EU copyright reform [chapter eight].

Chapter seven considers the legacy of the CJEU in view of Brexit, tackling the consequences of leaving the EU and EEA. It argues that even in the event of complete departure, the impact of the CJEU case law would remain relevant, highlighted by the reliance of the UK Courts on the EU Courts and amending domestic concepts accordingly. 

Part three concludes with chapter eight highlighting the polarization of the discourse around EU copyright reform. It argues, for example, that the proposals made in the Digital Single Market Directive went against the legislative framework and the interpretations of the CJEU, which need to be taken into account in the discourse of EU copyright reform. 

II. THE IMPORTANCE OF THIS RESEARCH

The goal of the book is to provide readers with a sense of direction of EU copyright cases by rationalising the large number of references to the CJEU and portray an underlying CJEU action in copyright. This is achieved with robust and novel research that sets out the power of the CJEU in shaping EU copyright law to a degree of harmonisation, impact and significance of the decisions. Importantly, it is convincingly argued that harmonisation as and end is not the guiding force of CJEU action, instead it has developed a principle approach to copyright protection. The guarantee of a high level of protection for copyright has allowed the CJEU to develop an expansive protection for copyright and a narrow scope for exceptions and limitations. The need for a fair balance between conflicting interests has also guided the Court to rely on standards such as proportionality and effectiveness, as well as the EU Charter playing an increasingly prevalent role. 

A. Appeal and Audience 

This book makes an important contribution to the literature, as Advocate General Maciej Szpunar (CJEU) explains in the forward: ‘This extremely profound analysis by Professor Rosati of EU copyright protection and relevant Court of Justice decisions constitute uncharted territory, unveiling new information, perhaps never considered, event by members of the Court like myself.’ As such, this book would appeal to anyone interested in European Copyright law, including practitioners, judges, policy makers, academics, researchers and students. The writing style enables the complexities of EU Copyright issues to be understood, providing clarity to a challenging area of law with rigour and ease. 

THERE IS A 20% DISCOUNT AVAILABLE for individual purchases from the OUP website - Quote promotional code ALFLY5F to claim your 20% discount and with the price of this book discounted to £56 (terms apply). 

Reviewed by Hayleigh Bosher