WIPO Magazine takes a look at copyright

The current issue of the World Intellectual Property Organization's WIPO Magazine is unusually heavily loaded with current copyright issues.  This magazine is not a serious professional read but provides generally short and cheerfully uncomplicated views or overviews of topics that can be of substantial professional or political importance. The contents of the WIPO Magazine don't necessarily endorse any official WIPO view of copyright, or any other IP right, but nor do they generally reflect views that are inimical to the range of positions taken by that organisation.

The first four features in this issue (officially dated April but released in May) go as follows:

• Streaming and Copyright: a Recording Industry Perspective (here)
• Safeguarding the Income of Musicians (here)
• Music and the Movies: an Interview with Randall Poster (here)
• Beastie Boys Verdict Underscores the Importance of Clearing IP Rights (here)

There could have been a fifth, but 3-D Printing is Here to Stay! (here) didn't mention copyright at all: instead, it focused on the first live concert played by musicians using instruments created by 3-D printing (a sample of which can be seen on the right)..

So no full harmonisation plans after all?

Modern does not mean ...

A few days ago the EU Commission unveiled its Digital Single Market Strategy (DSMS), a document detailing possible initiatives "towards a connected digital single market".

Despite earlier statements by EU Commissioners (see right), as far as copyright is concerned the DSMS has pretty narrow a focus and ambition. 

Proposed areas of intervention are only: cross-border access to "lawfully acquired" [so what about free streaming?] content and its portability; text and data mining for non-commercial and commercial purposes alike; and civil enforcement and the role of internet service providers (ISPs).

Writing on IPKat, I expressed the view that the DSMS is fairly vague as regards the form of any proposed legislative interventions [a new directive? a regulation? or not even law, but rather soft law instrument instead?], and overall contains fairly significant omissions.

An example is whether copyright should be harmonised further, possibly till the point that an EU copyright title is adopted.

As 1709 Blog readers may remember, further/full harmonisation has been an ongoing debate at least since the 2009 Reflection Document, in which for the first time in an official document the possibility of harmonising copyright fully at the EU level was mentioned and looked at favourably:

"A Community copyright title would have instant Community-wide effect, thereby creating a single market for copyrights and related rights. It would overcome the issue that each national copyright law, though harmonised as to its substantive scope, applies only in one particular national territory. A Community copyright would enhance legal security and transparency, for right owners and users alike, and greatly reduce transaction and licensing costs. Unification of EU copyright by regulation [pursuant to Article 118 of the Treaty on the Functioning of the European Union] could also restore the balance between rights and exceptions – a balance that is currently skewed by the fact that the harmonisation directives mandate basic economic rights, but merely permit certain exceptions and limitations. A regulation could provide that rights and exceptions are afforded the same degree of harmonisation."

Is full harmonisation something that current Commission is considering, also following the recommendations included in the draft Report by MEP Julia Reda?

Apparently not. 

Whilst in Cannes yesterday, Commissioner Gunther Oettinger tweeted the following:

... fully harmonised

It would thus appear that adopting an EU-wide copyright is currently off the Commission's radar.

In any case, if you wish to discuss further what EU copyright reform debate entails, you may be interested in attending - in person or even remotely - the event I am holding next week (26 May) at the London offices of RPC, entitled The Age of EU Copyright Reform?.

This event will review both policy debate/initiatives in the area of EU copyright and recent decisions of the Court of Justice of the European Union in this area of the law.

You can find further details and register here.

Please Sir, can I have some more?

A couple of weeks ago we published a piece outlining the first six months progress with the IPO's orphan works licensing scheme. And we promised to take a second look at the subject by examining the experience from the user's point of view. The majority of applications so far have come from institutions such as museums and archives. This is to be expected, firstly since they were the bodies which principally lobbied for the right to licence orphans, and also because up to now, the wider public is probably not that aware that the licensing scheme exists.

As a result, we intend to look at the experience of two such institutions: the Leeds Museums and Galleries (LMG), and the Museum of the Order of St John as they underwent the licence application process.

But before getting into the detail of their respective applications, why did they choose to use the IPO licensing system, as opposed to the EU Directive Permitted Uses regime? Well the simple answer is that both institutions wanted to licence the use of images, and the EU Directive doesn't apply to artistic works, unless they are incorporated within a written work such as a book, journal or newspaper, or they form part of a film or audiovisual work. Although the photographs the Museum of St John wished to use were contained in a personal scrapbook, the museum staff felt that this fell outside the strict provisions of the EU Directive since the photographs could be seen as stand-alone items.

Case One

The LMG have among their extensive collection of fine art, a painting by the artist Charles Ginner, which they wished to digitise for inclusion in their online database. Ginner is known to have died in 1952 and so his work is still in copyright, but Leeds Museums have been unable to locate an heir to his estate. Thus the licensing scheme was an ideal solution to their problem. Alison Glew, the Copyright Project Officer at LMG, says the process of applying for a licence was straightforward and that they will be using it again as they have over 100 other orphan works they wish to include in their Collections Online project. She advises other users to carefully study the IPO's guidelines to see how the system operates and the costs involved, before submitting an application. She suggests that applicants allow plenty of time to complete the diligent search procedure, and if you are taking advantage of the facility to apply for up to 30 individual works on one application, make sure you organise all your data before starting to complete the online application form.

Case Two

Veronica Nisbet

As part of its World War One commemorations, the Museum of the Order of St John obtained a grant from the Heritage Lottery Fund to stage an exhibition telling the story of Veronica Nisbet, a nurse who was one of the 45,000 volunteers who served in the Voluntary Aid Detachment during the First War. Veronica worked in the St John Ambulance Brigade Hospital at Étaples in France. The centrepiece of the museum's display will be a scrapbook owned by Veronica at the time she was working in the hospital in Étaples, which includes some photographs taken by her, and others by unknown photographers, as well as sketches and press cuttings. Although the museum had obtained permission from her estate to use Veronica's scrapbook, the authors of many of the other photographs were unknown. It so happened that during the diligent search process the identity of some of the authors was unearthed, but there was some doubt about the remainder, and whether some of the more professional photographs had been previously published or not. Erring on the side of caution and best practice, the museum decided to obtain licences for any images where doubt remainded. Peter Eaves, who works at the museum and handled most of the application work, says he found the IPO staff helpful, but the online process itself was anything but straightforward. Given the large volume of images they had to process (175), the museum initially found the process of uploading the required data to be confusing and convoluted. The problem lay in the fact that the application had to be completed in two stages, an initial basic entry, followed up by the addition of further details and a copy of the image itself. Since the image did not form part of the initial data to be entered, there was room for subsequent information to be entered for the wrong image. Peter felt it would have been better if the initial basic entry had included the image, as this was the unique item in each application, whereas many other details might be common to several images. He reiterated the point made by Alison Glew, that meticulous organisation of your data is essential prior to beginning an application, especially if there are multiple works to be included. Indeed Peter went so far as to advocate the creation of a spreadsheet to keep track of all the data, together with check boxes to mark off when each stage in the process has been completed. The final entry is then the actual licence number, and the whole document becomes an important record of the search and application process.

During the debates in the House of Lords on the orphan works clause in the Enterprise and Regulatory Reform Bill, much was made of the potential cost to institutions of having to carry out the search process and pay licence fees. The Museum of the Order of St John have kindly supplied details of the total cost of all their applications, which was £491, inclusive of the actual licence fees. Given the total grant from the Lottery Fund for this project, this outlay seems modest. The Veronica Nisbet exhibition will be unveiled on 7th September at the Museum's St John Ambulance Gallery in the City of London and will also be available in interactive format online at the same time.

We asked the IPO for their comments on how the first six months have gone, but to date they have not responded  and their comments now appear below. If the orphan works licensing system is to be the success that most museums and archives anticipated, we hope the IPO will address the concerns raised about the order in which data is required to be entered into the online forms. It is appreciated that the website is still in beta format and we trust that minor structural changes are still possible without endangering the viability of the project overall.

For more on the experience of the Leeds Museums and Galleries: see here
For more about the Veronica Nisbet project: see here (pdf) and about her diary: here

Addendum: The following response has been received from the IPO:

"As you know, the first six months of the orphan works licensing scheme has produced applications for a wide variety of orphan works, including novels, fine art, photographs, musical notation, music recordings and newspaper articles, and we are really pleased with how it is going. Some applications have been particularly interesting, including the licence granted for the reading of an orphan poem at the Gallipoli commemorations on 25 April at the Cenotaph.  We hope that more people will make applications as they become aware of the scheme and its benefits.

During these early months, we have been working with applicants to ensure that their applications are robust, which is why many applications show that we await further information from the applicant.  We intend to review the scheme after 12 months, and will look at the type of applications made, licences granted, withdrawn or refused, as well as gathering comments on the system.

Our diligent search guidance has been well-received, and we are aware that some applicants have found right holders in works after using the guidance.  We also inform organisations about the EU Directive on orphan works and suggest that they use it, if appropriate.  However, we are open to suggestions about improving the guidance and will keep it under review.  The scheme itself is currently in beta, which means that users are encouraged to provide feedback and suggestions for improvement.  We have already made a number of improvements through this feedback and have more planned."

A case of Berries triumphing over Blossom

Since at least the middle of the last century intellectual property law has recognised the overlap between copyright and design right. The Registered Designs Act 1949 was intended to create a separate system for protecting designs for practical items which did not fall into any of the categories protected under the existing copyright or patent law. The Copyright Designs and Patents Act 1988 then introduced a separate (unregistered) design right which, like copyright, came into effect at the moment a design was fixed in some permanent form such as a design drawing or prototype.

One of the drawbacks of the UK unregistered design right is that it does not apply to the surface decoration of the object, although assuming that the surface decoration has some artistic aspect and is not commonplace, copyright might well apply to that characteristic of the product.

And this was the basis of the claimant’s case in a recent IPEC case, Bodo Sperlein Ltd v Sabichi Ltd & Sabichi Homewares Ltd heard before His Honour Judge Hacon over two days back in March.

In 2001 Mr Bodo Sperlein designed a decorative pattern (shown on the right) intended to be applied to tableware, consisting of twigs bearing red berries. Understandably the design was marketed as the Red Berry collection. Mr Sperlein produced this ceramic tableware through his own company Bodo Sperlein Ltd (BSL) and it was very successful.

In March 2013 the company discovered that another supplier (the second defendant) was importing tableware with a very similar design (theirs was known as ‘Red Blossom’) and was selling it through a number of outlets, including one operated by the first defendant. At trial it transpired that the Red Blossom decoration had been designed by the second defendant although the actual products were made for them in China - the country, not the type of ceramic! Because Sabichi Ltd and Sabichi Homewares Ltd have the same managing director who was seen as the controlling mind of both companies, they were referred to jointly as ‘Sabichi’ unless it was necessary to distinguish the individual actions of one or other company.

BSL claimed that the copyright in the design document for the Red Berries had been infringed by Sabichi Homewares Ltd. Sabichi Homeware’s defence was one of independent creation. Their principal designer, Ms Hayley Adams had produced a design known as ‘Twiggy’ in about 2006 and this used the colours platinum and silver. After Ms Adams had left Sabichi, the company resurrected the design and changed the colour to red. The court noted that there were other significant differences between the original Twiggy design and the Red Blossom pattern which appeared on the final products.

BSL sought to undermine the independent creation defence by submitting that a Ms Jenna Blackwell who Ms Adams had identified as her assistant when she was at Sabichi, was probably the same person as a Ms Jenna Backwell who had applied to work at BSL in February 2010. In her application to join BSL, Ms Backwell spoke of her various research projects, including frequent trips to the Maison & Objet show held annually in Paris. It was at the Maison & Objet show in 2002 that BSL had launched their Red Berries range, and this was featured in a number of subsequent shows including in 2005 when Ms Backwell attended the show. The court was not required to decide if Ms Backwell was the same person as the Ms Blackwell referred to by Hayley Adams because it transpired that Ms Adams had herself also visited the Maison & Objet show while she was employed by Sabichi, and when the BSL Red Berries range was on display there. The BSL evidence concerning Ms Backwell (who did not appear as a witness) was only submitted on the first day of the trial, but HHJ Hacon allowed it to be admitted in view of its probable significance in the case and because the defence would have the opportunity to test it in cross-examination. The judge also, reluctantly, allowed Sabichi to introduce some late evidence about the early development of the Twiggy design, but only on the condition that Ms Adams was recalled on day two for cross-examination on this new evidence.

Twiggy was shocked

The submission of the new Twiggy evidence significantly altered Sabichi’s version of events. The introduction of later versions of Twiggy (designs 2 – 6) now accounted for the way in which the Twiggy design came to match the Red Blossom design which appeared on the finished product marketed by Sabichi.

The issues it came down to were: did Hayley Adams copy the Red Berries design when she made the Twiggy design and, if so, did she copy a substantial part? Is the Red Blossom Design a copy of the Red Berries design, and, if so, was a substantial part copied? If Sabichi were found to have infringed BSL’s design, the court would then have to deal with certain matters concerning the quantum, and costs.

As is often the case where independent creation is argued, the court had to rely heavily upon the credibility of the main witnesses. Ms Adams was thought to be generally truthful and accurate in her evidence, but seemed to be conscious of ‘not letting the side down’ However the court was less impressed by the performance of Mr Sam Bagga, the managing director of both defendants.

HHJ Hacon referred to the principle set out by the House of Lords in the Designers Guild case that, where copying had been established on a visual comparison, it almost inevitably led to the conclusion that a substantial part had been copied. But he noted that in the current case, the chain of development, especially of the Twiggy/Red Blossom design, meant that the question of substantiality might not be so clear cut. The test in this case was whether the final Red Blossom design used a substantial part of Mr Sperlein’s original design. The judge noted in passing that the likelihood of the defendants having access to the Sperlein original drawings was not at issue, and that if copying had occurred, it would have been of the actual pattern which appeared on the Red Berries collection of tableware. It was not disputed that the original Red Berry design and the actual pattern which appeared on the Red Berry range of tableware were essentially the same. If copying had occurred, there were several points in the process at which this could have occurred: in Ms Adams’s original Twiggy design, in the later re-worked Twiggy designs, or after Ms Adams had left the company when the Twiggy design was modified under the direction of Mr Bagga to become the Red Blossom design. In the end the court felt it was not necessary to decide exactly when the copying might have occurred [41].

In the final analysis the court found that the similarities between the two designs, particularly the colour used in both cases, meant that the defence had to produce strong compelling evidence to disprove the inference of copying. In confirmation of his conclusion on this point, the judge quoted from Ms Adams’s witness statement where she admitted: “I do realise that the Court may look at these designs and have difficulty telling them apart”. He felt that Ms Adams had failed to demonstrate how she was inspired to independently come up with the Twiggy design, and although she maintained she had not previously seen the Sperlein designs, there had been a number of opportunities, such as the 2006 Maison & Objet show, for her to have actually done so. Mr Bagga’s evidence on how the choice of colour for the Red Blossom came to be made was judged even less convincing.

The court found that copying of a substantial part of Mr Sperlein’s design had occurred and so Sabichi were liable for importing infringing copies into the UK, and placing them on sale.

The court decided to address the matter of damages and costs, without the need for a split trial. The main dispute centred on whether an account of profits was an appropriate remedy. The defence, quoting Kitchen LJ in Hollister Inc v Medik Ostomy Supplies Ltd, argued that this would not be proportionate, and that since an account of profits was an equitable relief, the court had discretion as to whether to apply it or not. As this was a matter of secondary infringement, knowledge by Sabichi that the goods were infringing copies would need to be demonstrated if they were not to escape liability for damages. HHJ Hacon had no difficulty in deciding that the defendants had the necessary knowledge, in view of Mr Bagga’s clear involvement in design and production of the Red Blossom range. He decided that an account of profits was appropriate in this case, and awarded BSL £31,703.01 plus interest, based on the total profits made by both defendants. 

Drawing of Twiggy by Failuresque. Used under a Creative Commons Attribution 2.0 Generic licence

MusicTank Asks “Who Pays For The Right To Copy?”

The University of Westminster's Music Tank has put together an expert copyright panel to debate a new model for artist remuneration for private copying. The new seminar,  Private Copy Exemption: Rightsholders And Remuneration will consider how a levy system might effectively compensate rightsholders for private copying in the UK, and takes its lead from a paper written by MA Music Business Management post-graduate, Samuel Rudy.

The mechanism, transparency and effectiveness by which rightsholders are compensated for private copying in the majority of European countries remains up for debate.  The majority of EU member states operate variations of traditional blank media levies, with others (Finland and Spain) abandoning those in favour of a state-funded compensation via collecting societies.   The UK belatedly adopted EU Directive on private copy exception last October, which among other rights, grants consumers the legal right to copy CDs and DVDs on to personal computers, mobile devices and internet-based cloud locker services, for their own personal use.  However, UK adoption of this regulation was done without providing ‘fair compensation’ to rights holders - itself a core remit of the EU Directive.  

UK Government’s view was that any such economic harm wreaked by private copying was insignificant and ‘built in’ to the pricing of content.  A large body of rightsholders firmly disagree with that position, with UK Music, BASCA and The Musicians Union appealing for rightsholder compensation in the High Court. However structured, current compensation systems across the EU are largely considered a blunt, opaque and inefficient tool with which to compensate rightsholders.

Discussing the implications, practicalities and grounded realities of private copying compensation is an esteemed panel, chaired by Keith Harris (PPL Director, Performer Affairs and MusicTank Chair), comprising: Jane Dyball, CEO, MCPS, IMPEL and PMLL - one of the UK’s most senior figures in music publishing and an expert in collective and digital rights; Prof Martin Kretschmer – leading copyright academic, CREATe director, advisor to the IPO and an outspoken and profoundly ‘copyleft’ advocate; Balázs Bodó - Senior Research fellow, University of Amsterdam; an expert on alternative compensation system, copyright and economist; John Smith - General Secretary, Musician’s Union, and leading protagonist in the recent high court appeal on private copy exception; Chris Cooke – CMU business editor and industry commentator; and Samuel Rudy, Miloco Group. 

Title:               Private Copy Exemption: Rightsholders And Remuneration
Date/ Time:    Thu 25th June 2015 | 18.30 – 21.00 hrs

Venue:           Fyvie Hall, University of Westminster, 309 Regent Street, London W1B 2UW

This free discussion paper - Private Copying of Music - nuances the debate, focusing not on whether by default, rightsholders should be compensated from lawful private copying, but addresses the issue of charging those who profit absolutely from facilitating the copying of music – digital storage and device manufacturers.

Cost: Earlybird rates currently apply from £20 (students £15)


Information & booking: http://www.musictank.co.uk/events/private-copy-exemption: 1709 Blog users can USE THIS PROMOTIONAL CODE: PCERR0615 (subject to availability) and save £5 on the full price - earlybird rates currently apply until 01.06.15)

The CopyKat - tickling Wednesday's whiskers

Live video streaming is nothing new – services have been around since the early 2000s – but Meerkat and Periscope have made it easier to broadcast our lives on the go and shifted the appeal near to the mainstream as our earlier blog about the potential loss to broadcasters incliuding HBO and Showtime from the Floyd Mayweather and Manny Pacquiqao fight explained. Ever since they launched, however, speculation has followed over the potential legal liability for content delivered on their platforms .... and the Guardian has taken te time to speculate.

its all here http://www.theguardian.com/technology/2015/may/11/periscope-meerkat-broadcast-copyright-premier-league

Rightscorp and their clients Warner Bros and BMG Rights Management have escaped a claim that they abused the U.S. DMCA legal process by exploiting subpoenas. The class action lawsuit attacked "Defendants’ right to petition courts in the Ninth Circuit to issue DMCA subpoenas to identify copyright infringers" accprding to the rihts owners, and District Judge Dale Fischer agreed that there was no abuse of process saying "The first fatal deficiency in Plaintiff’s abuse of process claim is that Plaintiff raises no ulterior motive in Defendants’ use of the subpoenas" adding  "Whether or not § 512(h) subpoenas should validly be issued under the circumstances in which Defendants sought them, there is no allegation and no evidence that Defendants sought to do anything other than what their subpoena requests indicated — identify potential copyright infringers for the purpose of pursuing Defendants’ rights under the Copyright Act." More from the Hollywood Reporter here.

However a small U.S. ISP by the name of Birch Communications has issued a press release which says that the U.S. District Court for the Northern District of Georgia has sided with the ISP and quashed Rightscorp's latest DMCA subpoeana for user information. “Our first order of business when anyone requests access to a customer’s private information is to refuse, absent a valid subpoena or court order, which we then scrutinize as we did with Rightscorp’s illegal subpoena in this matter," said Christopher Bunce, Senior Vice President and General Counsel for Birch. "Rightscorp’s attempt to gain access to our customers’ data was in essence a piracy fishing expedition.”

Universal had posted an 8% rise in digital music income in the first quarter of this year (Q1 2015) to €459m. UMG said recorded music revenues grew 2.4%  and the growth in subscription and streaming revenues more than offset a decline in both digital download sales and physical sales. Music publishing revenues (at UMPG) grew 3% (13% in actual terms) to €184m, also driven by ‘increasing subscription and streaming revenues’. UMG’s overall revenues – across recorded music, publishing, merchandise and more – were up 11.6% year-on-year in Q1 to €1.1bn.

Interestingly given the news that Apple has allegedly been pushing the major labels to clamp down on 'freemium' streaming services - Warner Music Group’s CEO Stephen Cooper (pictured, right) broke ranks with Sony and UMG to encourage the recorded music industry to exercise caution when it comes to dismissing the value of ad-funded music services saying "First of all, there are a lot of models out there, and all of those models — ad-based, subscription-based, or with both — are better than piracy" addng “You know to be crystal clear, piracy is zero revenue, it’s the theft of intellectual property, and it’s not good for anyone. So all of these models are better than piracy, that’s number one" and “Number two, the freemium models, if they encourage the adoption of subscribers… form ad-based [paths] to subscription-based models over time. We at Warner believe that’s good news". Cooper went on to say he would like to see the move from ad based streaming to subscriptions models to be 'turbo charged'. 

The UK has a new Culture Secretary in the person of John Whittingdale MP. The new Secretary Of State For Culture, Media And Sport has been the long-term chair of Parliament's Culture, Media And Sport Select Committee, and he has been supportive of the creative industries in the past, and pushed for the provisions to prevent illegal file-sharing to be included in the 2010 Digital Economy Act. However, its no secret he is not a big fan of the BBC, with the Telegraph leading with "Tories 'declare war on BBC' with John Whittingdale appointment" and the Guardian noted "In October, he described the BBC licence fee as “worse than poll tax” and said the £145.50 charge was unsustainable in the long term." He has said that the licence fee does need to be “tweaked” to take into account of on-demand viewing via the BBC’s iPlayer, and he has said that licence fee evasion should be decriminalised. Record industry trade group the BPI welcomed the appointment of Whittingdale and tahat of his predecessor Sajid Javid MP who becomes Business Secretary in David Cameron's new government.

Rock Follies? heavy metal copying claims rock on

The dust has yet to settle on the 'Blurred Lines' litigation in the USA - with a review of the damages awarded to the Gaye family, a revised settlement, an injunction against Pharrell and Robin Thicke, a new trial and/or an appeal are all being mooted, who wrote what remains a big question, as does the the difference between appropriation and inspiration: the recent settlement by Sam Smith and his co-writers with Tom Petty and Jeff Lynne over allegations that "Stay With Me" plagiarised "I Wont Back Down" just adds to this confused conundrum, as does the recent news that Mark Ronson and Bruno Mars have added the five members of the Gap Band as co-writers of "Uptown Funk" because of similarities to 'Ooops Upside Your Head". Now its the turn of heavy metal:

The lawsuit  brought by the trustee of the late Randy California claiming that Led Zeppelin's 'Stairway to Heaven' was plagiarised from an obscure song 'Taurus' by the band Spirit has survived its first legal challenge.  In 1969, Spirit and Led Zeppelin shared the bill at several concerts. U.S. District Judge Juan Sanchez has now refused to dismiss the claim. If the suit succeeds, a three-year statute of limitations would limit the award to the most recent earnings. Judge Sanchez said he declined to dismiss the suit "in the interest of justice," because the improper venue could be fixed by sending the case to California. As to the location of any trial, in his order, he said the Led Zeppelin members weren't subject to jurisdiction in Pennsylvania, in part because they don't live there and hadn't appeared to specifically target the district for selling their music. Guitarist Jimmy Page had dismissed the claim as “ridiculous” but added nothing more. Before he died 1997, Spirit guitarist Randy California told a reporter: “I’d say it was a rip off. And the guys made millions of bucks on it and never said ‘Thank you’, never said, ‘Can we pay you some money for it?’ It’s kind of a sore point with me. Maybe someday their conscience will make them do something about it.” 'Stairway To Heaven' is said to be one of the most covered rock songs and its worth is estimated to be more than $560 million. Francis Malofiy, the lawyer for the late singer's estate, said, "Attribution is the most important thing'' adding  "What we want is for credit to be given where it's due. I'm a fan of Led Zeppelin, but in this situation, we want credit for Randy.''

The internet has been buzzing with comments of the similarities between Guns N' Roses' most enduring song - 1987's 'Sweet Child O' Mine' - and Australian Crawl's 1981 song 'Unpublished Critics', from their album Sirocco. Now this may well NOT be copied - but blimey, and as one commentator said - it really does have "the same chugging chord progression, a similarly-sweeping lead break, the verse melody, and the elongated one-syllable vocal in the chorus."  You can hear and compare the tracks on this webpage.

http://www.bloomberg.com/news/articles/2015-05-07/led-zeppelin-judge-declines-to-dismiss-stairway-to-heaven-copyright-suit

http://www.maxtv.com.au/news/is-sweet-child-o-mine-stolen-from-a-1981-australian-crawl-song.aspx

And more on Francis Malofiy, the attorney acting for Randy California and   can be found here

 http://www.phillymag.com/news/2014/10/24/lawyer-filed-stairway-heaven-suit-led-zeppelin-may-disbarred/

Ninth Circuit Panel Held that California Resale Act Violates Dormant Commerce Clause

Several artists and estates of artists filed three separate class action suits in 2011 against two auctions houses, Christies and Sotheby’s, and with the online retailer and auctioneer eBay, alleging that they had failed to pay them royalties on sales of fine arts, as required by the California Resale Royalty Act, Cal. Civ. Code § 986(a), (CRRA).

Defendants had moved to dismiss, arguing that the CRRA violated the “dormant” Commerce Clause of the U.S. Constitution. The Central District Court of California granted Defendants ‘motion to dismiss in 2012, holding that the CRRA impermissibly violates out-of-state conduct, and thus violates the “dormant” Commerce Clause. On May 5, 2015, an en banc panel of the Ninth Circuit held that the CRAA indeed violates the “dormant” Commerce Clause.

The California Resale Royalty Act

The California Resale Royalty Act (CRRA), Cal. Civ. Code § 986(a), requires that sellers pay the author of the work sold a five percent royalty if the work is a work of fine art, that is, “an original painting, sculpture, or drawing, or an original work of art in glass.”The CRAA applies if the work is sold in California, or if the seller resides in California, or if the sale takes place in California. This type of royalties scheme is also known as droit de suite, and aims at giving artists and their heirs a way to profit from the rising market value of the work. Indeed, the heirs of a deceased artist can assert the artist's rights for 20 years after the artist's death, § 986(a)(7). However, sales below $1,000 and those involving an artist who died before 1983 are out of the scope of the CRRA.

The Dormant Commerce Clause of the U.S. Constitution

Even Dormant, The Commerce Clause Can Strike Down State Law

The Commerce Clause of the United States Constitution, Article I, §8, gives Congress the power to regulate commerce among the several States. This article has been interpreted by the Supreme Court as restricting the States from discriminating or burdening unduly interstate commerce, and this negative aspect of the Commerce Clause, as it limits the power of the States, is referred to as the “dormant” Commerce Clause.

The CRRA, § 986(c)(1), defines an “artist” as "the person who creates a work of fine art and who, at the time of resale, is a citizen of the United States, or a resident of the state who has resided in the state for a minimum of two years" and thus applies to all artists who are U.S. citizens, regardless of the state in which they reside, or to aliens who have resided in California for at least two years.

The Ninth Circuit gave as an example a sale, which would take place entirely outside of California, but which would nevertheless be within the scope of the CRAA, as a sale where “a California resident has a part-time apartment in New York, buys a sculpture in New York from a North Dakota artist to furnish her apartment, and later sells the sculpture to a friend in New York” noting , that, in this case, the CRRA “requires the payment of a royalty to the North Dakota artist—even if the sculpture, the artist, and the buyer never traveled to, or had any connection with, California.” The Court thus, “easily conclude[d] that the royalty requirement, as applied to out-of-state sales by California residents, violates the dormant Commerce Clause” (p. 8), as the CRAA “facially regulates a commercial transaction that takes place wholly outside of [California]’s border”(p. 9). However, the Ninth Circuit found that the CRAA’s provision offending the Commerce Clause can be severed from the remainder of the Act.

As the District Court had found that the CRAA violated the dormant Commerce Clause per se, and that the entire Statute had therefore to be stricken down, it had not addressed Defendant’s two additional arguments, the CRAA’s preemption by the Copyright Act and that it was a taking of private property in violation of the United States and California Constitutions. Therefore, the Ninth Circuit remanded the case to a three-judge panel for considerations of these remaining issues, leaving to the panel’s discretion the decision to address them on the merits or to remand them to the lower court.