What's NOT in a quote? The answer is: copyright infringement

A few months ago this blog reported news of an interesting lawsuit that the owners of the rights to the literary works of William Faulkner filed against Sony Pictures over Woody Allen's 2011 film Midnight in Paris. 

This unusual and lovely (at least in this blogger's opinion) film features Hollywood screenwriter Gil Pender (Owen Wilson) who, while on holiday in Paris with his fiancée, finds himself going back to the 1920s every night at midnight, thus meeting great expatriates of that time, including Hemingway, the Fitzgeralds, Gertrude Stein, Picasso, Cole Porter, Dalì and Gertrude Stein.

The film includes a scene in which Gil says "The past is not dead. Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

Apparently Sony had not sought permission to include this quote from Requiem for a Nun, which contains the statement "The past is never dead. It's not even past.” Therefore, the owners of the rights to the book decided to file a lawsuit, claiming copyright infringement, commercial appropriation and violation of the Lanham Act.

As also reported by Ben, a couple of days ago Judge Micheal Mills of the US District Court for the Northern District of Mississippi (quite unsurprisingly) ruled that use of a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film did not amount to copyright infringement.

"The past is never dead.
It's not even past."

The judge recalled the Fifth Circuit's approach to questions of copyright infringement: “the substantiality of the similarity is measured by considering the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole.” This mirrors the third factor of the fair use defence in §107 of the US Copyright Act (“the amount and substantiality of the portion used in relation to the copyrighted work as a whole”). 

The Court considered indeed whether Sony could claim fair use of Faulkner's quote. Pursuant to the seminal decision in Campbell v Acuff-Rose, the judge held that use of Faulkner's nine words in Midnight was transformative, in that it "undoubtedly adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message”. The court also considered transmogrification in medium (serious novel as opposed to film comedy) as a relevant factor to hold use of Faulkner's quote transformative.

"Alas, I wish it was" - thought Peter -
"At least when it comes
to certain outfits I have to wear"

Among other things, the Faulkner Estate argued that Sony had received permission from other artists for use in Midnight, such as Cole Porter’s song Let's Do It (Let’s Fall in Love) and 

Pablo Picasso’s artwork. The judge held that "This court’s inquiry is whether the use of Faulkner’s quote is fair use, not whether the rest of the work used in the film would have required a license agreement ... The court notes the obvious distinction between the use of Cole Porter and Pablo Picasso’s work at the outset, however: they are used in their entirety while Requiem is used by fragment only. Thus, the court finds this consideration to be irrelevant."

This blogger is pleased with the outcome of this case. She wonders however if it is because of lawsuits like these being filed in the first place that sometimes copyright may not enjoy such a great reputation and be actually perceived as rather a bothering and risky obstacle along the way to producing new creative works. Just to use another Faulkner's quote, the end result might be to think along the following lines: "I'm bad and I'm going to hell, and I don't care. I'd rather be in hell than anywhere where you [and copyright] are".

The CopyKat - from Russia and Paris - with love

A songwriter called Guy Hobbs has failed in his plagiarism claim against Elton John and his co writer Bernie Taupin, after the 7th U.S. Circuit Court of Appeals affirmed a judge's decision to dismiss his claim that Elton John had borrowed the lyrics for his 1985 hit "Nikita". Hobbs had claimed Sir Elton's song was copied from his song "Natasha" which Hobbs said he had submitted to Sir Elton's publishing company prior to Sir Elton writing his hit. Hobbs claimed his song was based on his short romance with a Russian woman he met while working as a cruise ship photographer. The court helpfully fleshed out Hobb's claim (who said the long delay in bringing the action was because he had never seen Taupin's lyrics until 2001) and compared both songs noting that the alleged similarities extended to (1) A theme of impossible love between a Western man and a Communist woman during the Cold War; (2) References to events that never happened; (3) Descriptions of the beloved’s light eyes; (4) References to written correspondence to the beloved; (5) Repetition of the beloved’s name, the word “never,” the phrase “to hold you,” the phrase “I need  you,”    and some form of the phrase “you will never know;” and a (6) A title which is a one-word, phonetically-similar title consisting of a three-syllable female Russian name. The court then pointed out that unrequited love is a  common theme for songs, and the two songs tell different stories with “Natasha” telling the story of an actual, though brief, romantic encounter between a man from the United Kingdom and a woman from Ukraine which is severed because the woman must sail away whereas in in contrast, “Nikita” tells the tale of man who sees and loves a woman from afar. But that love can never find physical expression because the two are separated by “guns and gates" with Judge Daniel Manion saying for a three-judge appellate court "Even when the allegedly similar elements between the songs are considered in combination, the songs are not substantially similar." 

It seems that a battle between Rolan Feld, the son of deceased T. Rex frontman Marc Bolan, and music publisher Westminster Music Limited is heading for the US courts with Feld seeking to regain control and ownership of his father's songs - as well as $2 million in damages, using the provision in U.S. copyright law that gives the creators of works published before 1978 the opportunity to regain control after 28 years. Feld's filing also alleges that the publisher falsely attempted to renew copyright in the music "in an attempt to cover up their conduct and mislead the public as to the true owner of United States copyrights" in each of the compositions.

A federal judge in Mississippi has dismissed a lawsuit claiming that Woody Allen’s 2011 film “Midnight in Paris” improperly used one of William Faulkner’s most famous lines from Faulkner’s book, “Requiem for a Nun.” Faulkner Literary Rights LLC, who sued Sony Pictures Classics Inc. in October in U.S. District Court in Oxford alleged that the line in question - “The past is never dead. It’s not even past,” becomes a line spoken by Owen Wilson in the movie who says “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner. And he was right. I met him too. I ran into him at a dinner party.”  U.S. District Judge Michael P. Mills dismissed the lawsuit saying “At issue in this case is whether a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film can be considered a copyright infringement. In this case, it cannot”.

The US Fourth Circuit held for the first time that copyright interests can legally be transferred electronically, affirming an injunction against American Home Realty Network Inc. in a copyright dispute with a rival real estate listings website.

The Spotify royalty row rumbles on: After Thom Yorke's comments (see our previous blog) abiout why he would not want his album on streaming service Spotify, Will Page, the former PRS for Music economist and now Spotify’s Director of Economics,  published a new research paper 'Adventures In The Netherlands' looking at the streaming service's three year operation in the Dutch market, the accompanying fall in piracy and growth in recorded music income in the region in that period, and whether there are links between these facts - and with certain riders Will found that  there is no indication that artists who had concurrent download and streaming releases suffered in terms of record sales because of their presence on streaming services. Next, the Music Managers Forum, which is chaired by Radiohead manager Brian Message, issued a statement in support of the streaming service saying "The Music Managers Forum embraces streaming as a technological development that adds to the ways that consumers can pay to access music. Any music creation is now potentially ubiquitous, for free, as soon as it is made available digitally. Streaming is in its infancy but growing fast and providing meaningful rewards for many. Income from radio, compact discs, downloads and even resurgent cassettes grows as the fruits of artists labour are discovered and become more popular. That popularity is a measure of the success of the artist fan relationship which is at the core of the modern music ecosystem" adding "A new music business is being built that encompasses publishers, labels, technology, financiers, producers etc, but that has the artist and fan firmly at the centre. Everyone, including artists and fans, in the new business needs to adapt to the new world" and finally, the statement concludes: "Streaming is not a download. Nor is it radio. It is streaming. It's different and a part of the future". This in turn was followed by a statement from the Musicians Union, the 30,000 strong association, demanding that the music streaming service draw up a new minimum pay deal for artists. The MU said it was pushing for a collective pay agreement modelled on the royalties paid by BBC and commercial radio stations. Comment from Robert Levine here.

The Cuckoo’s Calling: Has J.K. Rowling created her most interesting character yet?

"When is a famous author not a famous author? When he or she chooses to write under a pseudonym, of course.

It is possible to think of many reasons why fame, the holy grail that most artists pursue, could also become a liability for a writer (or an actor, or a musician...). Quite simply, fame can deaden opportunity – and, correspondingly, initiative – for a creative person who wants to do anything new and...creative. At times, an author’s, or artist’s, achievement in a given field can have such a profound impact on the mind of the public, and create such apparently unforgettable associations, that the author can never be truly free to undertake anything innovative again. Imagine Raymond Burr’s “Perry Mason” as a criminal (which was one of his early acclaimed roles, in Alfred Hitchock’s 1954 “Rear Window”), George Orwell as a lyric poet (is it possible to be dystopian and lyrical at the same time?), or William Shatner as a Shakespearean actor (though Patrick Stewart managed both Star Trek and Shakespeare). These examples, and countless others like them, show how difficult it is, even for a creative artist, to change – and, conversely, how many artists, to remain artists, may deeply desire and seek out creative change throughout their careers. It is a strange paradox.

This issue arose in an interesting context over the past week. A few months earlier, a mystery novel by a new writer had been published. The author’s name was Robert Galbraith, and the book, entitled The Cuckoo’s Calling, was shaping up to be a decent commercial success. But, perhaps more importantly, the critics said that the book was good – perhaps even too good to be true. As Sarah Lyall of the New York Times noted in her coverage of the story, some readers felt that the book “seemed almost too assured and sophisticated to be a first novel.” In a journalistic coup by the Sunday Times of London, the true author of the book was revealed to be, not Robert Galbraith after all, but a well-known writer – none other than J.K. Rowling, herself, the famed author of the “Harry Potter” series of books.

Why would the woman who could lay claim to being one of the most famous writers of our time want to write under a pseudonym? Apparently, to act out a sort of literary fantasy. Writing under a pseudonym would allow Rowling to write in a new genre, free of public expectations – an experience that the writer called “liberating” (quoted by Sarah Lyall, “This Detective Novel’s Story Doesn’t Add Up,” 14 Jul 2013, New York Times online, available here).

It is interesting to note that most copyright laws actually recognize this urge towards creative privacy, and some even offer it protection under the rubric of authors’ moral rights. The moral right of attribution, the most widely recognized of all moral rights in the world, allows authors to claim authorship of their works, and to be associated with their works by name. The right to write under a pseudonym, or anonymously, may be explicitly protected (as in Canada, for example: see the Canadian Copyright Act, S. 14.1(1), available here), or implicitly inferred into copyright statutes, including the Berne Convention (see “The ABC of Copyright”, a Handbook of the UNESCO Culture Sector (2010), 32-33. The authors then controversially suggest that forgery, “the right to object to any wrongful attribution” is not covered by the attribution right: “The possibility to defend one’s name against usurpation by third parties, does not, strictly speaking, falls (sic) within the category of authors’ moral rights but rather forms a part of the general category of personality rights to which all individuals are entitled, regardless of whether they are authors or not”: see “JK Rowling ‘anger’ at legal firm over pseudonym leak,” BBC online, 15 July 2013). It is a slightly subversive right, not only allowing authors the possibility of diverting public interest away from their works (the practice of ghostwriting could be seen as a way of asserting the right to pseudonymous or anonymous authorship, while the right to write under one’s own name becomes legally “suspended”), but also, providing a shield to protect authors from retribution, whether by individuals or, potentially, the state. As such, it could be seen as an aspect of free speech, or, indeed – as in Rowling’s relatively mundane case – freedom of creativity.

At first glance, it seems curious that the publisher of “Galbraith”’s novel was willing to play this game. Notwithstanding the positive reviews, sales of the new book were modest – a mere 1,500 copies. Why would the publisher be willing to forego the potentially significant earnings from sales of a Rowlings title? Was it an experiment in relationship-building, where the publisher valued its relationship with Rowling enough to indulge this fancy, while anticipating future projects that would be commercially viable? Was it an elegant form of forgery that tempted the publisher, in the assurance that revelation would ultimately follow, and create a public sensation? Was it a clever marketing ploy, designed to play with public expectations of the publishing business? Some speculation that the leak may have been engineered by the publishing company, itself, has now been put to rest – rather, Russells Solicitors has taken responsibility for the leak, which was said to have originated in private communications involving a partner at the firm (“In a statement, it said the wife of one of its partners, Chris Gossage, had told her best friend, Judith Callegari, that Robert Galbraith was really Rowling”: see “JK Rowling ‘anger’ at legal firm over pseudonym leak,” BBC online, 15 July 2013).

Regardless, one thing is certain: in the internet age, there are no secrets. Rather like Audrey Hepburn’s princess in the classic film “Roman Holiday,” Rowling may have enjoyed her holiday from fame, but the return to reality should be sweetened by the capital that she and and her publisher are now poised to make out of their curious thought-experiment. In the process, Rowling may have created one of her most fascinating characters ever".

This post was composed by Mira Sundara Rajan and posted on her behalf by Jeremy

FAPL wins Section 97A blocking order against live streaming services

Now that it has become established practice for content owners to close down P2P sites from which illegal content is downloaded, the battle has moved on to streaming services.

Yesterday Mr Justice Arnold gave judgement in the case of FAPL v BSkyB and others in relation to an application by FAPL against the six major UK ISPs in order to implement site blocking against a website called FirstRow Sports which provides access to streaming of live football matches.

As Arnold J himself puts it "The present application differs from the applications considered in the [previous section 97A site blocking decisions] in a number of respects. First, the applicant and its supporters constitute a different class of rightholder [i.e. football rights rather than movies and music companies]. Secondly, unlike the websites the subject of the previous applications, FirstRow is not a peer-to-peer ("P2P") file-sharing website. Rather, it is a website which facilitates access to streams of television broadcasts of sporting events. Thirdly, as a result, the issues on infringement are somewhat different."

He goes on to apply his own analysis from Dramatico Entertainment Ltd v British Sky Broadcasting Ltd (the PirateBay case).

The key points of difference from the previous cases are the consideration of whether there is a communication to the public, where he applies the reasoning of the ITV v TVCatchup decision and concludes that the P2P live streaming services are a communication to the public and that the communication occurs in (at least) the UK.  He also determines that FirstRow, although only an indexing service and not one which originates the communication to the public, is responsible in law for the communication to the public (or at least jointly liable).  

Accordingly he agrees to issue the orders in the terms sought by the FAPL. 

It is noteworthy that, even though FirstRow did  not appear in the case, Arnold J was careful to satisfy himself that they were responsible for the infringements prior to issuing the orders.

French Public Consultation on TV Advertising

The French legal regime applicable to television advertising, sponsorship and product placement is currently the subject-matter of a public consultation being conducted by the Ministry of Culture.

Among the issues open for comment are the following:

-          Lifting the restrictions applicable to ads for movie (currently restricted to certain specialized movie channels);

-          Lifting the remaining restrictions on promotional campaigns for retailers;

-          Relaxing the prohibition on referring to a sponsor’s goods and services in sponsored programming; and

-          Extending product placement beyond fiction programming and videoclips.

The consultation is open until July 31, 2013 and the relevant document can be found  here

The CopyKat - furry, flexible, quick reflexes, sharp retractable claws, and teeth adapted to killing small prey

Fashion and celebrity photographer Milton H. Greene was only 26 years old when he photographed Marilyn Monroe for Look magazine and he went on to take thousands of photos of the Hollywood star, “capturing both her vulnerability and her sex-bomb persona”.  Now, 3,700 unpublished black-and-white and colour negatives and transparencies of Greene's Monroe archive are going on the auction block — along with the copyright – as part of a total of 75,000 celebrity negatives and slides Greene shot in the 1950s and 1960s.

What will the jury think?

A website that provided a fan subtitle service -or fan-made translations of popular Hollywood movies and television shows - has been shut down by the police after a recent raid. Swedish authorities investigated a copyright complaint and raided two Undertexter properties and confiscated what were classified as "evidentiary materials". The Swedish Police Service National Coordinator of the Intellectual Property Crime Division stated that they tracked the computers to establishments in Helsingborg and Stockholm. Consequently, Undertexter services are now permanently offline and cannot provide on-screen text sharing services to their users.

The European Union took an important step toward establishing a single market for online music distribution and a more efficient system for licensing and distributing copyright royalties after the European Parliament’s Committee for Legal Affairs approved changes to the current fragmented system in the 28 member states.  “This proposal is a key to create a digital single market,” MEP Marielle Gallo (EPP-France), a member of the conservative European People’s Party and the individual steering the legislation through the EU law-making body, said. “Simple and transparent licensing of copyright means more legal offers and easier access to online content for consumers. … This reform also ensures remuneration for artists and will develop new business opportunities.”

One of the most important posts I have ever read about how the music industry might function in the future has been published on the CMU Daily website - I say 'one' - its actually two posts looking at the Spotify business model - and why its good for tech start ups and their record label partners - and very bad indeed for artists who are currently receiving a (usually) tiny share of revenues from their labels for digital uses - and in the case of two of the three majors, Sony and Universal, the very same labels who co-own Spotify. Now Radiohead frontman Thom Yorke and producer Nigel Godrich have taken to the net to formally express displeasure in the all-you-can-eat streaming business model. To prove their point they announced that their respective solo albums, and the long-player from their collaborative venture Atoms For Peace, had all been removed from Europe's highest profile streaming service. Announcing what he dubbed as a "small meaningless rebellion", producer Godrich said via a string of tweets: "We're off of Spotify. Can't do that no more man. Someone gotta say something. It's bad for new music. The reason is that new artists get paid fuck all with this model. It's an equation that just doesn't work" with Godrich saying "The music industry is being taken over by the back door, and if we don't try and make it fair for new music producers and artists, then the art will suffer. Make no mistake. These are all the same old industry bods trying to get a stranglehold on the delivery system. The numbers don't even add up for Spotify yet. But it's not about that. It's about establishing the model which will be extremely valuable, meanwhile small labels and new artists can't even keep their lights on. It's just not right".

The articles cab be found here http://www.thecmuwebsite.com/article/as-spotify-debate-goes-atomic-where-are-we-at/ and here http://www.thecmuwebsite.com/article/godrich-and-yorke-reignite-spotify-debate/

The White House has announced an agreement with several of the largest internet ad brokers to curb advertising on websites that promote copyright infringing content. The White House announced that the deal, which includes AOL, Google, Microsoft and Yahoo, had been reached to try to limit the display of advertisements on websites with content that infringes copyright and engage in counterfeiting. The voluntary measures aims to stem the flow of cash to websites that rely on advertising to make money

And finally a reminder about our 'Forthcoming Events' section on the right sidebar.  This Thursday (18 July 2013) it's IP and Digital Entertainment in Holborn and the fun packed day features 1709 Blogmeister Jeremy Phillips in the chair, and 1709 bloggers Iona Harding (Baker & McKenzie) and Ben Challis (Glastonbury Festival) speaking on the current role of copyright and 'Digital Glastonbury' respectively. Other speakers include former 1709 blogger Amanda Harcourt on personalised radio services such as Pandora and Spotfy along with Toni Vitale (YouView) on TV on Demand, Gary Moss (EIP) on IP enforcement in the digital sphere, Gill Grassie (Brodies) looking at the "The Digital Revolution: To Hargreaves and Beyond", and Rosie Burbridge (Rouse Legal / Art and Artifice) taking a view on copyright and computer games. Please don't forget that from the 19th to 23rd August it's the annual IBC Intellectual Property Summer School at Downing College, Cambridge, and finally, and up in Scotland on the 6th September 2013, it's "Artistry and Artificiality", a fascinating and free event at the University of Glasgow, under the baton of copyright-and-music maestro Dr Andreas Rahmatian himself, bringing together specialists in music and in copyright law to discuss the way in which copyright conceptualises music from the perspectives of the musician/musicologist as well as the lawyer. Confirmed speakers include Professor Alison Firth, Professor Paul J Heald, Dr John Williamson, Professor John Butt, Professor Bjorn Heile and Professor Charlotte Waelde

What's going on in Europe? UK IPO needs you!

Having enjoyed a truly dreamlike sunny weather in Cambridge, this blogger thought of concluding the day in glory by checking what was new over her various social media. While on Twitter, she discovered this tweet from the UK Intellectual Property Office (IPO):

A call for help + in the area of EU copyright: is there anything better to end a perfect day? 

The areas on which the IPO is particularly keen on receiving interested parties' views as well as any supporting evidence [ever heard of it?] are Commission's IP Strategy (1709 Blog related posts here) and the [infamous? see IPKat posts here and here] Licences for Europe initiative. 

Summer in Cambridge

Overall, the IPO has posed quite a few questions in order to develop its thinking on how best to respond to forthcoming developments in EU copyright. Answers are in fact intended to help IPO "understand the impact that potential changes to the European copyright framework might have."

The following are the issues on which YOUR feedback is needed:

1. The European Commission has highlighted a number of areas for consideration in its 

Intellectual Property Strategy. 

a. Are there any comments you would like to make on the proposals that have been highlighted?

b. Are there any further steps which need to be taken to complete the Single Market in this area? If so, what?

c. Are there any areas where European copyright law [or rather case law, given that current EU law-maker appears to be the Court of Justice, rather than EU legislative] needs amendment to ensure it is keeping pace with technological development? If so, where?

Are you brave enough to rescue IPO?

2. Of the four areas highlighted by the European Commission for their “Licences for Europe” dialogues, are there particular points that you would like to raise? [by the way, at the beginning of July a mid-term plenary session took place: does anyone know what happened there?]

You have time until 11 October 2013 to help IPO. You can submit your contribution either by email (policy@ipo.gov.uk) or post to:

Copyright and Enforcement Directorate

Room 1Y05

Intellectual Property Office

Concept House

Cardiff Road

Newport

NP10 8QQ

Visiting scholar: can you meet her?

The 1709 Blog has learned that Costanza Honorati is on her way over to London at the beginning of August, where she will spend a few days in the delightfully constructive and reflective pastime of conducting some legal research.
Costanza is a full professor of European Union Law at the University of Milan and her research on intellectual property rights is particularly focused on the fascinating topic of international private law.

If you are in London at that time and would like to meet with Costanza, please contact her by email at costanza.honorati@unimib.it.