Wednesday, 20 September 2017


It's been a busy few days!

Another US lawsuit has been added to the mounting litigation against Spotify and the streaming platform's alleged failure to pay mechanical royalties in the USA for the right to 'copy' a song (rather than the 'perfoming' right).  In fact there have been three developments: an objection to Spotify's proposed settlement of the original class action on this issue, a rebuttal of its most recent legal arguments, and a brand new lawsuit. Hypebot's take is this: "The recorded music industry is in the midst of a renaissance thanks to revenue from a single source - streaming. But a growing string of lawsuits filed by songwriters and publishers, and an aggressive new legal tactic by Spotify, threatens the company's pending IPO and could derail the industry's delicate recovery"

Chance The Rapper at Hovefestivalen by Rashid Akrim / NRK
Three-time Grammy-winning Chance the Rapper (Chancellor Bennett) is being sued for copyright infringement. The suit was filed by Abdul Wali Muhammad on in the Illinois District Court. Muhammad is a musician-turned lawyer, who copyrighted the composition of ‘Bridge Through Time’ in 1979.  Muhammad’s claim rests on Bennett’s sampling of his composition in the track ‘Windows’ from his debut mixtape as Chance, 10 Day.  Whilst the use of copyrighted material is fairly obvious, Bennett’s particular approach to the music industry makes the case interesting. Bennett wrote 10 Day after being suspended from school in 2011. ‘Waves’ was released in December 2011 and soon after Complex listed him as one of ‘10 New Chicago Rappers To Watch Out For’ in February 2012. The mixtape itself was only self-released on in April 2012. Since then it has been downloaded for free 538,617 times. It will be interesting to see how this develops. 

"There's a tattoo as a design, and then there's that same tattoo after it's inked on the human body. Tattoo artists often copyright their tattoos. But does that copyright stick once the image is inked on the human body?" A useful update on Ars technica looks at the interesting world of copyrght and tattoos and Solid Oak Sketches action against Take-Two Interactive Software, makers of  the highly popular NBA 2K game series based on the claim that Take-Two is infringing its copyrighted works because the game shows players incuding LeBron James abd Kobe Bryant with their real-world inked tattoos that Solid Oak Sketches created - and copyrighted in the US.  Even if the tattoos are copyrightable, Take-Two argued that it has a fair-use right to show the players with their tattoos, which are not a prominent feature of the video game. "Solid Oak's profit-making litigation should be halted in its tracks by dismissing Solid Oak’s copyright claim as a matter of law under the de minimis use and fair use doctrines," Take-Two claims.More on Ars Technica here and on this Blog here and here and the IPkat here.  

China's National Copyright Administration (NCAC) has told music companies operating in China that they must stick to market rules, and that all market players must adopt international practices to widen licensing and spread online music. The NCAC told an assembly of over twenty companies that they must work together to avoid giving exclusive music copyright to online music providers. The administration also underlined the laws and international conventions on copyright, warning companies against infringement. The NCAC said that music companies must not allow online music providers to bid up licensing prices, and must support the work of copyright organizations to protect the rights of copyright holders, especially lyricists and songwriters. They should also set up a more effective framework for licensing, cooperation and operation of online music copyright to improve order and for the industry to prosper, the NCAC said.

China's top legislature has passed a  law to protect the nation's national anthem and to ensure appropriate use of the song. The law was adopted after a second reading at the bimonthly session of the Standing Committee of the National People's Congress. China's national anthem is "March of the Volunteers," has lyrics by poet Tian Han and music by Nie Er. The song will only be allowed at formal political gatherings, including the opening and closing of NPC sessions, constitutional oath ceremonies, flag raising ceremonies, major celebrations, award ceremonies, commemorations, national memorial day events, important diplomatic occasions, major sport events and other suitable occasions. It will be illegal to use the national anthem during funerals, "inappropriate" private occasions, commercials or as background music in public places. The law says that violators, including those who maliciously modify the lyrics or play/sing the national anthem in a distorted or disrespectful way, can be detained for up to 15 days or held criminally liable.

US TV star Dr. Phil is involved in a novel copyright decision Involving a woman who has alleged he falsely imprisonmed her: Leah Rothman, a former director on his show, used her iPhone to record nine seconds of outtakes to possibly aid herself in a legal battle. Rothman alleges suffering emotional distress and false imprisonment when, during a meeting, Dr. Phil locked the door, yelled profanities and threatened employees for supposedly leaking internal information to the press. Before she brought her action, Rothman says she attempted to get evidence by accessing a database of videos from the Dr. Phil Show archives and using her iPhone to record a nine-second clip of magterial she thought would be valuable to her litgation. But now a court has concluded that his wasn't 'fair use' with U.S. District Court Judge Rodney Gilstrap saying “Rothman did not copy to then educate the masses or to further the greater good. She copied to aid her pending lawsuit seeking money damages where she is the only plaintiff and sole potential beneficiary.” Therefore, Rothman could not hide behind fair use. This isn't the typical copyright story! 

The creator of Pepe the Frog has stepped up his fight against far-right activists who appropriated the cartoon character as a meme. Matt Furie has vowed to "aggressively enforce his intellectual property" after the character he created for a comic strip was plastered across social media and even merchandise, particularly by fans of US President Donald Trump as he fought his election campaign. Eleonora has posted an update on the IPKat here.

Taylor Swift may is facing a new copyright challenge over her 2014 hit “Shake It Off". Songwriters Sean “Sep” Hall and Nate Butler are suing Swift, arguing that the lyrics for “Shake It Off” borrow too heavily from “Playas Gon’ Play,” a 2001 song they wrote for the R&B trio 3LW.  Musician Jessie Braham having previously accused Swift and her co-writers of lifting lyrics from his song 'Haters Gonna Hate'. The claim failed. And two Canadian songwriters have filed a lawsuit alleging copyright infringement against country superstar Carrie Underwood and others. The lawsuit alleges Ronald McNeill and Georgia Lyons-Savage composed the chorus, melody and lyrics to a song called, “Something in the Water” in August 2012. The pair say they completed a vocal mix of the demo in September 2012 and pitched it to Underwood’s team, who declined to use it on her album. But according to the lawsuit, a song by the same name ended up on Underwood’s 2014 “Greatest Hits” album.

And finally and just in case you missed these two big stories ......

"We Shall Overcome" was labelled by the US Library of Congress as “the most powerful song of the 20th century”. It was a unifying anthem for the 1940s labour protests and the 1960s Civil Rights Movement led by Dr Martin Luther King, and came to symbolise the spirit of protest.  Now a federal judge has struck down the copyright for part of the civil rights anthem saying that the song’s adaptation from an older work, including changing “will” to “shall”,  was not original enough to qualify for protection.  Judge Cote said that the change was not original enough to qualify for protection. “This single word substitution is quintessentially trivial and does not raise a question of fact requiring a trial to assess whether it is more than trivial … The words ‘will’ and ‘shall’ are both common words. Neither is unusual” Judge Cote ruled, adding "The fact that a trivial change to the lyrics became a part of a popular version of a song does not render that change nontrivial and automatically qualify the popular version for copyright protection". More from George Chin here.

Is it the end of the 'monkey selfie' case? It seems so!  The People for the Ethical Treatment of Animals has settled its federal lawsuit that sought to esgtablish the right for animals to own property - in this case the black macaque Naruto's right to own the copyright in a selfie taken with photographer David Slater's equipment in Indonesia. In a joint statement PETA and Slater say: "PETA and David Slater agree that this case raises important, cutting-edge issues about expanding legal rights for non-human animals, a goal that they both support, and they will continue their respective work to achieve this goal. As we learn more about Naruto, his community of macaques, and all other animals, we must recognize appropriate fundamental legal rights for them as our fellow global occupants and members of their own nations who want only to live their lives and be with their families. To further these goals, David Slater will donate 25% of future gross revenue from the Monkey Selfie photographs to charitable organizations dedicated to protecting and improving the welfare and habitat of Naruto and crested black macaques in Indonesia." This may be the end of this case, but is ot the end of the story? If the monkey cannot be the author, but does that mean that Mr Slater owns the copyright in the picture taken by the monkey? And if he doesn't - who does?
More on the settlement here.

Monday, 28 August 2017

The CopyKat - Part Deux

It's not often we report on the Pagan community, but the Wild Hunt tells us of concerns about Pagans violating copyright protections of Pagan books which have "resurfaced in a big way, with thousands of volumes being uploaded by the owner of one popular Facebook group". Authors and publisher’s agents who knew that no such permission had been granted have tried to get the files removed, and after several days those attempts appear to have been successful, to the disappointment of some group members. More here.

Rogers Communications wants the Supreme Court of Canada to reconsider a copyright ruling on pirated content that internet policy experts say could raise prices for law-abiding consumer. The Financial Post reports that the Toronto-based communications giant has filed for leave to appeal a Federal Court decision that stipulated internet service providers must turn over subscribers’ identities for free if copyright holders suspect them of copyright infringement. the Federal Court ruled internet providers could not recoup their costs because the fee could potentially make it too expensive for copyright holders to go after illegal downloaders. Instead, it suggested internet providers pass the costs along to all consumers – even those that do not infringe.

The Premier League in the United Kingdom is very very big business, with a large of the revenues provided by the commercial deal for match TV rights struck with Sky TV and BT.  and the FAPL will go to great lengths to protect those rights. With the start of the new Premier League season, the fight against illegal IPTV streams has stepped up, with ISPs being told to block streams of copyright content in real time - and this seems to have worked, with substantial disruption for viewers hoping to catch matches using these Kodi or web-based streams over the first weekend of the new season. TorrentFreak reports that several streams went dark within minutes of matches starting, leaving providers of the illegal streams to scramble to find new domains to host their content. With the recent closures of piracy-facilitating Kodi add-ons, it's looking like the days of being able to easily stream 'free' premium sports content might be coming to a close, although there are always people willing to use VPNs to evade the blocking abilities of the UK's ISPs. UPDATE - the Mirror says that 3 million watched the much hyped Mayweather / McGregor fight on at least 239 illegal streams. 
US President Donald Trump has instructed his trade envoy to examine China’s policies and practices concerning US intellectual property, a promise he made during the 2016 election campaign. The presidential memorandum signed tat the White House directs US Trade Representative Robert Lighthizer to “examine China’s policies, practices and actions” when it comes to transfer of US technology and “theft of American intellectual property” and use “all options” to protect US interests with Trump saying “We’re taking firm steps to make sure we protect the intellectual property of American companies and very importantly, of American workers” and “The theft of intellectual property by foreign countries costs our nation millions of jobs and billions and billions of dollars each and every year.”

The dispute between the major record companies and mixtape sharing app Spinrilla continues, with the former’s request for access to the latter’s source code high on the defendant’s current list of specific gripes. Interesting - the defs say this "The source code is the crown jewel of any software-based business, including Spinrilla. Even worse, plaintiffs want an ‘executable’ version of Spinrilla’s source code, which would literally enable them to replicate Spinrilla’s entire website. Any plaintiff could, in hours, delete all references to ‘Spinrilla’, add its own brand and launch Spinrilla’s exact website”.  More on CMU here

Songwriter groups in the USA and elsewhere have hit out at the Recording Industry Association Of America (RIAA) over its submission to an official review of the moral rights of creators in the US. The songwriter organisations, including BASCA in the UK, say that the major record companies in the US are pursuing an anti-songwriter agenda on this point, while concurrently relying on vocal support from the songwriting community when it comes to lobbying for safe harbour reform. Both the Motion Pictures Association of America (MPAA) and the RIAA are against the introduction of statutory moral rights for artists. They believe that the current system works well and they fear that it’s impractical and expensive to credit all creators for their contributions. Stark hypocrisy from the record labels in the US? Or too big a task to manage? BASCA say "even though the US signed up to the Berne Convention in 1989 it chooses NOT to recognise moral rights, saying they are confusing.  There really isn’t anything confusing about crediting the original creator of a song folks!!  So understandably the writer organisations in the US get very excised, rightly so, about this ongoing scenario.  The US Copyright Office this year conducted another study into the issue with some very strong statements from creators and submissions by writer organisations in support of the US finally recognising moral rights.  However the RIAA in its wisdom decided to continue to reject this position .... Thus writers from across the US, Canada, the UK and Europe – organisations representing many tens of thousands of songwriters and composers of all genres – have come together in an unprecedented alliance to explain to the RIAA why this is wrong and damaging to the very people whose works the music industry is built on."

The back-to-school Copycat!

The famous rapper Eminem vs. copyright infringement, Eminem-esque!

During an election campaign ad, the New Zealand’s ruling political party used a piece of library music called “Eminem-esque”, which sounded like the famous track “Lose Yourself”. It sounded so much alike that the rapper’s publishing company decided to sue the political party for copyright infringement!

Last year, the dispute went to court, and the political party said that this track was licenced by a production music company, which was called Beatbox. However, some emails were produced between the political party and some third parties, arguing if their track sounded too much like “Lose Yourself”. 

The Eminem company used these emails to argue it showed that they were aware of copyright infringement, even if they apparently had a lookalike licence!

We are still waiting for the judge’s conclusion on that case, but the battle promises to be interesting!

RIAA vs. Lyor Cohen

The Recording Industry Association of America showed some 'badass' arguments last Friday against YouTube’s music chief, Lyor Cohen, while he was discussing the digital future of the music business.

YouTube is seen as the music industry’s enemy number one for a long time, with the copyright safe harbour that the platform is exploiting. According to the music industry, YouTube is exploiting this safe harbour to force music rights owners into much more preferential deals than those enjoyed by Spotify and Apple Music. In consequence, the music industry wants this safe harbour rewritten in order for YouTube to stop enjoying this protection. 

However, this safe harbour thing seems to be a distraction according to Cohen. He says that he wants to concentrate on a special mission, on how to direct some of YouTube’s revenues back to the music creators who drive its success. It surely is a wonderful goal, but it’s what he’s saying for a long time, with nothing done according to Cary Sherman, the trade group’s boss. “The numbers and YouTube’s actions tell a different story”, he said. 

He added: “Google's YouTube is the world's biggest on-demand music service, with more than 1.5 billion logged-in monthly users. But it exploits a 'safe harbour' in the law that was never intended for it, to avoid paying music creators fairly. This not only hurts musicians, it also jeopardises music's fragile recovery and gives YouTube an unfair competitive advantage that harms the digital marketplace and innovation. The safe harbour was intended to protect passive internet platforms with no knowledge of what its users are doing, not active music distributors like YouTube. As Lyor acknowledges in his blog, 'the majority of coming from recommendations, rather than people searching for what they want to listen to'". In so, he’s saying that YouTube is not the passive internet platforms it wants us to believe. 

He also added “YouTube likes to talk a good game, but it won't even make public its subscriber figures", he argues. "And it continues to under report the number of music streams played on its service, let alone substantiate any of its many different claims about payments to music creators. In fact, every time they're challenged on this point, Google and YouTube simply change their claims yet again".

Finally, he said that “It's long past time that the safe harbours - enacted 20 years ago, in the days of dial-up internet, and before it was ever imagined that users could upload 400 hours of video to YouTube every minute - must be clarified to apply to passive and not active intermediaries”.

"To be clear”, he ended, "we believe safe harbours should be preserved - and Google/YouTube claims that we're trying to eliminate them is nothing but a red herring. But if safe harbours are to drive innovation and fair competition in today's digital environment, they must be applied as originally intended, not as they are exploited by YouTube for its own competitive advantage".

Nigeria’s stolen books!

Nigerian Copyright Commission decries increasing book piracy in the country. Over the five last years, the Commission has seized about 18 containers of pirated books, which worth millions of naira. Several arrests have also been made and convictions secured with the two-year jail term without option of fine. 

The Commission and the Nigeria Publishers Association are currently stressing the need for relevant stakeholders to co-operate with the commission and support its programs. The aim is to ensure that right owners and investors benefit maximally from their creative works. 

Famous YouTubers in a copyright lawsuit

Ethan and Hila Klein are behind the famous H3H3 YouTube channel. They have been sued by Matt Hosseinzadeh, a.k.a. Matt Hoss last year, after they posted a reaction video mocking him. Instead of focusing on the criticism per se, he alleged a copyright infringement by featuring clips of one of his videos in their criticism.

H3H3 argued for fair use in this case. And it appears that they won. A tweet from the official twitter of H3H3 announced that they have won the lawsuit against Matt Hoss, and are calling for a “Huge victory for fair use on YouTube”. 

After this tweet, they released a video explaining the decision. They said that, in the case, Judge Katherine B. Forrest ruled that the reaction video including clips of Matt Hoss could be counts as fair use. The video of H3H3 is clearly a constructive critical commentary of the video of Matt Hoss. In so, they are not making any copyright infringement. But she declares that the Court “is not ruling here that all “reaction videos” constitute faire use”. Indeed, if “reaction videos” abuse their fair rights, copyright infringement could be claim. However, it wasn’t the case here. 

You may see the video of H3H3 explaining the case here! 

And finally, remember Re-Digi? Well the long-running dispute between Capitol Records and tech firm ReDigi has reached the US's Second Circuit court of appeal. Can you re-sell digital music file without the copyright owner's permission - and can the first sale doctrine in the US apply to digital music files?  More here

This CopyKat from Lolita Huber-Froment

Monday, 21 August 2017

Directing a Spotlight on the Feud over Ownership of Château Miraval’s Lights

French daily newspaper Libération recently reported about the legal feud between actor Brad Pitt and French artist Odile Soudant. It appears that Pitt hired Soudant to create the lightning system for the château Miraval, in the South of France, which Pitt and Angelina Jolie bought in 2008. See here for an AFP article about this story in English.

Soudant worked for many years for famous French architect Jean Nouvel, one of Pitt’s favorites, and the source of inspiration for the first name of one of his children. Soudant now has her own company, but she recently filed bankruptcy. She explained to Libération that the origin of her financial troubles lies in her long business association with Pitt.
The actor asked Soudant in 2010 to design the lightning system for the castle, and she worked on the project for three years and a half. She had been given carte blanche, but the two parties did not sign a contract [collective gasp of attorneys reading this]. She signed, however, a confidentiality contract, which has prevented her so far to discuss her work.

At one point during the completion of the work, according to Libération, Soudant’s company had to advance the cost to complete the work and pay the contractors and the vendors, causing cash flow problems. Soudant contacted Pitt several times, asking him to provide the funds necessary to pay the project-related bills so that the project could be completed. The cash flow issues jeopardized the financial equilibrium of her company, which eventually went bankrupt.

Last April, the Paris Court of appeals ordered one of Pitt and Jolie’s companies, the société Château Miraval, to pay  565 000 euros to Odile Soudant, 60 000 euros of which to compensate for damages to her image and reputation.

We will not discuss this complex contractual issue, but only the copyright issue created by this situation. Indeed, according to Libération, Soudant was abruptly asked to leave in 2014, before being able to finish her work, which was completed by one of her former assistants.

Who owns the copyright in the works?

In France, the author of a work is the one who gave it the imprint of his or her personality. The fact that Soudant did not complete the work is irrelevant as article L 111-2 of the French Intellectual Property Code protects a work even if it has not been finished, and even if it has not been published.

The lightning of a building can indeed be protected by the French copyright, the droit d’auteur. The Cour de cassation held on March 3, 1992, with respect to the lighting of the Eiffel Tower, that the “games of light designed  to reveal and emphasize the lines and forms of a monument constitutes an original visual creation and are thus a work of the mind.”

Libération quotes the testimony of an architect who took part in the project, saying that “the ideas for the lightning came chiefly from Mr. Pitt himself, who is passionate about architecture and knew what he wanted to achieve.” Pitt’s lawyers told Libération that Pitt considers himself to be the author of the work.  In that case, it would not matter who completed the work, Soudant or her former assistant, because both would be mere workers working under the absolute direction of Pitt, the sole author. Soudant, instead, considers her to be the author of these original works and told Libération that she did not gave away any of her intellectual property rights.

Who has the right to reproduce the works?

Pitt’s lawyers told Libération that the château Miraval is a private space, and therefore there are no issues over the rights to the image of the work. They must be referring to the French right to image of one’s goods, including buildings that one owns. The Cour de cassation had first held, in its March 10, 1999 Café Gondrée decision, that “the owner [of a building] has the sole right to exploit his right in any form whatsoever,” including the right to authorize taking a photograph of a building. However, the Cour de cassation en banc (Assemblée Plénière) held on May 7, 2004, that “the owner of a good does not have an exclusive right over its image”. This means that, while Pitt and Jolie own the château, they cannot forbid people taking pictures of it.  

But do they own the copyright in the lighting of their humble abode? If they do not, and if Soudant owns it, she alone has the right to authorize its reproduction. Libération notes that the Guerlain advertising campaign film featuring Jolie was shot at Miraval, and that the actress is seen going down the stairs, which she owns with Pitt, in a flow of light designed by Soudant… or is it by Pitt?

Is the lightning system the sole work of Soudant, or a collective work authored by Soudant or Pitt, or is it a composite work, first created by Soudant, then incorporated in a new work? Let’s hope for copyright-related sequel to the Paris Court of appeals contract case.

Photo is courtesy of Flickr user Patrick Gaudin under a CC BY 2.0 license.

Friday, 18 August 2017

Tattoo Copyright Infringement Suit Dribbles On

Readers of this blog may remember that Solid Oaks Sketches filed a copyright infringement suit against Take-2 Software, the maker of the NBA 2K video game, claiming that its reproduction of several tattoos worn by famous basketball players was copyright infringement. The case is still ongoing in the Southern District of New York, and defendants filed this month a motion for judgment on the pleadings, where they argue that the use was fair use. HT to the Hollywood Reporter.

Solid Oaks bought the copyright for the tattoos of Eric Bledsoe, Lebron James, and Kenyon Martin, which were created by several tattoo artists. These players appear in the NBA 2K game, complete with their tattoos. Solid Oaks claims this is copyright infringement. Take-2 argues that the use is de minimis and fair use.
A real-life depiction

The tattoos “only appear on the players on which they were inked in real life, not other real-world players or fictional characters” (p. 13). Indeed, the NBA 2K game, which is updated every year, depicts over 400 current and retired NBA players “realistically. …These depictions have realistic facial and physical features… They wear jerseys and sportswear with the numbers, colors and logos of their teams. The game even depicts NBA-branded socks” (p.9).

The tattoos at stake were each created specifically for the players. As explained in the motion, “[e]ach tattoo was created as a custom tattoo intended only for the player on which it was inked… Thus, they are imbued with special meaning for the players. For instance, Solid Oak admits that “Child Portrait Tattoo Artwork” depicts LeBron James’s son… Similarly, “330 and Flames Tattoo Artwork” depicts the number 330, which is the area code for Mr. James’s hometown” (p. 12).

Defendant argues that Plaintiffs “seek to hinder the ability to depict people as they appear in real life” (p.6), and that Plaintiff is contending that these famous basketball players must now seek its permission each time they appear in public, in films, or when being photographed.

Use is de minimis

Defendant is arguing that the use of the protected work is de minimis. “[T}rivial copying does not constitute actionable infringement” Newton v. Diamond, 388 F.3d 1189, 1193.

There are 400 players available in the video game, and so the tattoos only appear when the three players featuring the tattoos which copyright is owned by plaintiff appear in the game. Also, the tattoos appear very small in the game and thus are very difficult to see. For Defendant’s the tattoos “are just one of the myriad of elements that makeup NBA 2K” (p.13).

Use is fair use

Defendant is also arguing that it “is not a rival tattooist that has replicated a creative design and inked it on a new person. Rather, its use is completely different in a massive, highly creative video game featuring a virtual world that only uses player tattoos to realistically capture how the players actually look. Each of the factors that courts consider supports a finding of fair use.”

Defendant reviewed each of the four fair use factors and argued that each of the factors is in its favor.

The first factor, the purpose and character of the use, is in Take-Two’s favor because it “uses the Tattoos for a different purpose than that for which they were originally created. While the Tattoos originally were created as the NBA players’ self-expression, Take-Two uses them merely to replicate how the players appear in real life.”

The second factor, the nature of the copyrighted work, should also be in Defendant’s favor because “Take-Two uses them to depict the world accurately.”

The third factor, the amount and substantiality of the portion used, should be in Defendant’s favor because the “use was reasonable given that its purpose was to depict real life accurately, and using any less of the Tattoos would defeat that purpose.”

The fourth fair use factor, the effect of the use upon the potential market, should be in Defendant’s favor because Plaintiff “admitted that it is contractually prohibited from inking the Tattoos on other people, meaning that Take-Two’s use cannot harm that market.”

What about right of publicity?

This is a copyright infringement suit and the players are not parties in the suit. However, one could imagine that they could file a suit against the owner of the copyright of their tattoos for tortious interference in contractual relations, if not owning the copyright of their tattoos would prevent them from licensing their likeness. On the other hand, one can argue that the owner of the copyright has the right to be financially compensated if the work is reproduced, especially for in a commercial venture.

These players are celebrities, but our likeness is more and more used for marketing purposes. A few thousand followers on social media may land us all a lucrative marketing deal. If we sports tattoos but do not own their copyright, should we secure a license before posting selfies? As Jack London once said [on Twitter]: Show me a man with a tattoo and I'll show you a man with an interesting copyright license.

Wednesday, 16 August 2017

The CopyKat - mid August musings for copyright monkeys

For years in the USA, there's been ample debate and scholarly literature over whether there really exists a crime for secondary copyright infringement. On Friday, a federal judge in Illinois probably made the day for big copyright holders by ruling that the U.S. Government has properly indicted Artem Vaulin, the alleged founder of KickassTorrents. A copy of the judgment can be viewed in full here.
Vaulin is currently in a jail cell in Poland after the 31-year-old was charged last year by U.S. authorities with running one of the world's most popular places to illegally obtain movies, television shows, songs and video games.
Judge John Lee takes up the issue of whether secondary liability for copyright infringement can be extended from the civil realm to the criminal one. In his decision the judge says that Vaulin is basically missing the big picture.
"[A]s should be clear by now, the indictment does not charge Vaulin with common law secondary liability... Rather, the indictment relies on the text of the congressionally enacted conspiracy and aiding and abetting statutes... Thus, the indictment charges Vaulin not with crimes based upon common law theories, but for conduct made unlawful under unambiguous statutes."
Dawn of Planet of the Apes Halted as Peta call time on Monkey Selfie Case

Naruto, via his self-appointed lawyers from the People for the Ethical Treatment of Animals, is in the process of dropping his lawsuit over the now infamous monkey selfies. That's according to a Friday legal filing with the San Francisco-based 9th US Circuit Court of Appeals, which is being asked to hold off on issuing a ruling that everybody believes is going to go against Naruto.
Nobody would say publicly what the deal is, or why this is happening. However, during oral arguments in the case last month, a three-judge panel of the court of appeals eviscerated Naruto's arguments.

On the positive side though, PETA's lawsuit has prompted public discourse about the idea of animals owning property. And that's why this lawsuit may have been about nothing more than monkey business all along.

Sony is being sued for using a song by glam rock band T. Rex in summer blockbuster Baby Driver "without permission".
The son of late frontman Marc Bolan has filed a lawsuit accusing the studio of copyright infringement over the use of the band's hit Debora. A full copy of the suit can be viewed here.
Feld Bolan won the rights to the works of his father's band three years ago and is seeking punitive damages.
"Inexplicably, defendants failed to obtain - or even seek - the permission of the composition's US copyright holder Rolan Feld," said the complaint filed in Los Angeles federal court.
Feld was made aware of the use of 'Debora' when a Sony Music representative contacted his lawyer to request a licence to use the track on the movie's soundtrack release. The complaint claims that Feld then let Sony know that use of the song in the movie was "unauthorised", but Sony is said to have responded with "conflicting explanations", and Feld says they have now ceased communications.

Cards Against Humanity owns copyright number TX0007492177 at the US Copyright Office for its “base” set and numerous other copyright for its expansion packs.

The company has used the trademark ‘Cards Against Humanity’ since 2009, along with the tagline “A party game for horrible people”, its trade dress, which consists of white lettering on a black background with vertically aligned text, and a three-card design.

Cards Against Humanity is sold to US consumers through Amazon, its own website, eBay and, since 2014, various selected retail stores. A US judge has granted the owners of card game Cards Against Humanity an injunction against Skkye Enterprises, a company accused of selling counterfeit versions of the game. 

Cards Against Humanity filed a copyright and trademark infringement claim(pdf) against Skyye in September 2016 at the US District Court for the Eastern District of Missouri.
District Judge Audrey Fleissig granted (pdf) a permanent injunction and default judgment on Wednesday, August 9.On copyright infringement, Fleissig said that an award of $12,000 per infringement, totalling $60,000—or three times the highest estimated sales of defendants’ infringing game—in combination with the other damages, is a “just and suitably deterrent outcome”.The court awarded $20,000 per trademark infringement, for a total award of $60,000, which Fleissig said “compensates plaintiff in a fashion consistent with the purposes of the Lanham Act and case law”.

Cards Against Humanity was also granted an injunction against Skkye, along with an order for destruction of infringing goods.It was also awarded attorneys’ fees, subject to a further submission to the court on their reasonableness.

This CopyKat from Matthew Lingard

Saturday, 5 August 2017

Former Professional Wrestler Sues Van Morrison for Using his Likeness without Authorization

Billy Two Rivers, a former professional wrestler, is suing musician Van Morrison and his record label company, claiming that, by using his likeness on the cover of the upcoming Roll With the Punches album, they infringed his right of publicity, as protected by New York State’s statutory right to publicity, New York Civil Rights Law §§ 50 and 51, and false endorsement under the Trademark act. The case is Two Rivers v. Morrison, 1-17-cv-05720 (Southern District of New York).

To say that Plaintiff has had an interesting life is an understatement, as he was a professional wrestler from 1953 to 1977, competing in Canada, the U.S. and abroad. He appeared in ten films and television programs. After retiring, he was for 20 years a leader of the Mohawk nation on the Kahnawake reservation, as an elder and a counselor. He is still recognized as an elder and advisor to the First Nations people. The British band The Dogs D’Amour named a song after him in 1988, and Pulitzer Prize-winner Paul Muldoon wrote a poem, “My Father and I and Billy Two Rivers”, about watching Plaintiff competing in a wrestling match. A British racing horse was named after him, with Plaintiff’s consent. 

Roll With the Punches will be Van Morrison’s 37th studio album and is set for release on September 22, 2017. Its cover features a black and white photo of Plaintiff engaged in a wrestling match. The cover of the album was used to promote Van Morrison’s tour, and generally to promote the sale of the album, both online and off-line. Plaintiff claims he did not authorize the use of this photo for the album cover. The complaint alleges that he was not even contacted by Defendants.

New York Civil Rights Law § 50, enacted in 1903, makes it a misdemeanor for “[a] person, firm or corporation [to use] for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian...” We saw in a former post that the New York Legislature is actively trying to expand the scope of the law. However, Plaintiff does not need such expansion to file his suit. If the fact alleged in the complaint can be proven, it is a clear case of unauthorized use of likeness for commercial purposes.

Plaintiff is asking the court to enjoin any further use or dissemination of the cover, and to permanently dispose of the albums already produced. He is also asking the court to award him punitive damages.  The case just settled out of court.

Thursday, 3 August 2017


Linns Stamp News tell us that a federal judge has ordered a dispute over the "Lady Liberty" stamp that the United States Postal Service mistakenly produced in 2010 to go to trial in September. Federal Claims Court Judge Eric G. Bruggink rejected motions by both the Postal Service and sculptor Robert S. Davidson that would have effectively ended a four-year-old lawsuit over a stamp that was based on a replica of the Statue of Liberty. Davidson created the Lady Liberty replica, which stands outside the New York, New York Hotel & Casino in Las Vegas. The postal official who oversaw stamp designs later said he would have never selected that image if he had realised it featured a replica - which also would have protection as a  “sculptural work”  under the US Copyright Act with the Judge noting “There is no question that plaintiff was invoking the Statue of Liberty, in his replica, but he argues that his intent was not merely to copy and that the replica is unique.” The error was identified by Sunipix, a stock photo agency in Texas. Wikipedia says ten and a half billion of the stamps were produced.

A photographer is suing consumer products giant Procter & Gamble in the US, accusing the corporation and the world’s largest advertiser of not paying her for photos that have appeared on Olay packaging and marketing materials used around the world. The Cincinnati Enquirer reports that 46-year-old Annette Navarro has spent over a decade photographing models who have graced the packaging of a number of notable consumer products. Her photos have also been used by P&G $2 billion Olay skin care brand for 14 years. Navarro is accusing P&G of using her photos beyond the scope of her license, which limited usage to within North American and a 3 year period. 

And more photography: US District Judge Sidney H. Stein has just ruled that the case between photographer Donald Graham and 'appropriation artist' Richard Prince can proceed. Graham took issue with Prince for using his images in an exhibition of re-appropriated Instagram images at the Gagosian Gallery in NYC - and Graham never gave any permission for his image titled “Rastafarian Smoking a Joint” to be used. Many comment that any 'transformation' is minimal (at best), being little more than enlarged Instagram screenshots. Judge Stein said “The primary image in both works is the photograph itself. Prince has not materially altered the composition, presentation, scale, color palette and media originally used by Graham.” Prince escaped relatively unscathed in his last battle, Cariou v Prince, with the appellate court saying "Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five".

And finally on photography, a New York federal court judge handed a photographer a mixed result when the court dismissed her copyright infringement claim but allowed her Digital Millennium Copyright Act (DMCA) allegations to move forward in a dispute that began on Instagram. The case involves photojournalist Matilde Gattoni, based in Italy, who photographed a colourful building in Essaouira, Morocco, that included the figure of a woman in a long dress walking down an empty street. In August 2016, she placed the photograph—which has a pending copyright registration in the United States—on her Instagram page, accompanied by a copyright notice. Gattoni claims that one month later, clothing retailer Tibi copied and cropped the photograph (removing the woman) and placed this image on the company’s social media page without licensing the image or obtaining her consent to use it. But US copyright had only been applied for, not registered, so could there actually be an infringement?  There's an excellent article from Jesse M. Brody of Manatt Phelps & Phillips LLP here on Lexology that analyses this and the DMCA claim. Well worth a read.

A New York judge has dismissed a lawsuit brought the estate of promoter Sid Bernstein, who staged the Beatles’ legendary 1965 show at Shea Stadium. The Estate had argued that band’s Apple Corps had infringed on the copyright of Sid Bernstein Presents by including footage from the concert in Ron Howard's  documentary film Eight Days a Week - the Touring Years which was released in September 2016.  The Estate's action sought ownership (or joint ownership) of the master tapes and copyright by Bernstein’s company, Sid Bernstein Presents, arguing that, “[w]ithout Sid, the mastermind of the event, this film would never have been made”. In a ruling on the 26th July, Judge George B. Daniels, in the US District Court for Southern New York, said the company could not claim ownership of the footage as Bernstein did not himself film the concert, instead signing over the rights to do so to Nems. Judge Daniels held:  “The relevant legal question is not the extent to which Bernstein contributed to or financed the 1965 concert .... [R]ather, it is the extent to which he ‘provided the impetus for’ and invested in a copyrightable work" and “The complaint and relevant contracts clearly refute any such claim by Bernstein. By the express terms of the Nems-Bernstein contract, Bernstein had no control over the filming of the concert” and that the contract signed in 1965 “reserves no rights whatsoever for Bernstein in any filming or recording of the concert.”

Billboard reports that Beyonce's legal team is going to have to work a little harder to defeat a copyright infringement lawsuit over her hit "Formation." Spoken word from the late Anthony Barre (also known as Messy Mya) features on the song, and his estate sued in February for copyright infringement, (there are other claims). Barre's voice is heard saying “What happened at the New Orleans,” “Bitch, I’m back by popular demand” and "Oh yeah baby. I like that.” His sister, Angel Barre, claims the samples infringe the rights in two works of her brother's performance art, "A 27 Piece Huh?" and "Booking the Hoes from New Wildings." Louisiana federal judge Judge Nannette Jolivette Brownon denied Beyonce's motion to dismiss the copyright claim on fair use grounds and noted that Barre had made a case that Beyonce's use of the clips was not transformative and that, although the samples were short, it was a "qualitatively significant" use". Judge Nannette Jolivette didn't t agree with Barre's argument that the fair use doctrine doesn't apply to the digital sampling of a sound recording. Judge Brown also denied the motion to dismiss Barre's false endorsement and Louisiana Unfair Trade Practices Act claims, but did dismiss a claim for unjust enrichment.

Tuesday, 1 August 2017

Cabin Fever: Is Reconstructing a Work to Preserve It Copyright Infringement?

Lolita wrote about this copyright infringement suit on last week’s CopyKat. It deserves a second glance.

Artist Cady Noland created her Log Cabin sculpture in the nineties, which is made out of wood and resembles the façade of a log cabin, along with two U.S. flags which are “an integral part of the sculpture.” The work is approximatively 12 feet high, 18 feet long, and a little less than 6 feet wide.

Art collector Wilhelm Schurmann bought the work in the nineties. He loaned it to a museum which exhibited it outside for ten years. Log Cabin was then exhibited at the Michael Janssen Gallery. However, it had deteriorated over time, and an art conservator recommended in 2010 to reconstruct it entirely with new materials and new logs. The complaint alleges that Cady Noland was not informed about this decision at the time but instead learned for the first time in 2014 that the work had deteriorated, had been reconstructed, and the decayed material thrown away.

Cady Noland has taken the position that her work has thus been destroyed, and filed a copyright infringement suit in the Southern District of New York against the Michael Janssen gallery, Michael Janssen, and Wilhelm Schurmann, claiming that rebuilding Log Cabin was copyright infringement, and that its destruction had violated her moral rights under the Federal Visual Artists Rights Act of 1990 (VARA), 17 USC § 106A.
This is not the first time Log Cabin is at the origin of a law suit. The Michael Janssen Gallery had found a buyer for the work in 2014, but Candy Nolan disowned it after discovering it had been rebuilt. The deal fell through, as the purchase agreement had a clause which directed the gallery to buy back the work if the author disowned it. The buyer then sued the gallery claiming he was owed money, but lost.

Disowning a work

VARA, 17 USCA § 106A(a)(2),  gives the authors of some works of visual arts the right “to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation. . . ." Cady Nolan used her right under VARA for Log Cabin. She also disowned her Cowboys Milking work, and was then sued in 2012 by the art dealer who had consigned it to Sotheby’s, which had to take it down from sale following the disownment. The owner of the work then sued the artist and the auction house, but lost.

A little bit of comparative law… Article L. 121-4 of the French Intellectual Property Code gives authors the right to disown their work, provided that they financially compensate the owner of the work.

Is Log Cabin protected by copyright?

The complaint in our case informs that Log Cabin is not registered with the Copyright Office, as copyright registration has been refused. Plaintiff is seeking to have her ownership of Log Cabin’s copyright recognized by a declaratory judgment. 

Since Cady Noland has disowned her work, should her request be interpreted as asking the court to declare that she owned the copyright in the original Log Cabin, now destroyed? Or is Cady Nolan only, or also, asking the court to declare that she owns the copyright in Log Cabin, in its current state?

For the sake of discussion, let’s assume that Cady Noland owns Log Cabin’s copyright.

Is rebuilding Log Cabin copyright infringement?

Section 106 of the Copyright Act grants several exclusive rights to an owner, among them the right to reproduce the work: “the owner of copyright under this title has the exclusive rights to … reproduce the copyrighted work in copies or phonorecords.” If Log Cabin is indeed protected by copyright, and if Cady Nolan owns that copyright, only she has the right to reproduce it. Cady Nolan considers the reconstructed Log Cabin an unauthorized copy, not an act of preservation.

VARA gives authors of a work of visual arts the right “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and… to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”

Does the owner of a work protected by copyright have a duty to preserve it?

Cady Nolan also claims that Wilhelm Schurmann was negligent or indifferent in preserving the work, which led to its deterioration, and thus its destruction, leading to the violation of Plaintiff’s copyright and moral rights. 

The case is an Art Law professor’s dream come true…