Can a Work of Art Created by AI be Protected by Copyright?

Eleonora explored last year on this blog the complicated relationship between AI and copyright, see here.

We now learn that auction house Christies will sell in October a work of art titled 𝒎𝒊𝒏 𝑮 𝒎𝒂𝒙 𝑫 𝔼𝒙 [𝒍𝒐𝒈 𝑫 (𝒙))] + 𝔼𝒛 [𝒍𝒐𝒈(𝟏 − 𝑫(𝑮(𝒛)))], Portrait of Edmond de Belamy, from La Famille de Belamy, which was created using AI.

It is the work of a Paris-based collective, obvious art, founded by Pierre Fautrel, Gauthier Vernier and Hugo Caselles-Dupré. The work was created using Artificial Intelligence (AI) technology, more precisely the Generative Adversarial Networks technology invented in 2014 by Ian Goodfellow, which can create images. The name of the work, Edmond de Belamy, is an homage to Ian Goodfellow, whose last name can be translated in French as “Bel ami.”

Edmond de Belamy (source: Artnet)

Obvious art created a program, fed it with information about some 10,000 portraits from the 15^th to the 19^th Century, and Edmond de Belamy was printed. The whole process is explained on obvious art’s website and also here.

The portrait shows a man painted over a black and gray background from which he appears to emerge, dressed in black, with a white collar, in a fashion reminiscent of 17^th century Dutch paintings. His features are not precisely lineated and one does not even see his nose. He is looking at us from an angle, and appears to have been painted by large brushstrokes.

The collective’s goal was to prove that machines can also be creative, just like humans (see this interview in French). It is an algorithm which created the work. Does that mean that Edmond de Belamy cannot be protected by copyright?

Is Edmond de Belamy the new Naruto?

Indeed, as mentioned by Eleonora, the Naruto case [see here] may give us some clues on how a US court would rule over the copyrightbility of a work created by AI.

Obvious art used the formula of the loss function of the original GAN model as the signature for the painting they created. If a program is the author of the work, then the work cannot be protected by copyright.

The U.S. Copyright Office clearly stated in its Compendium of U.S. Copyright Office Practices that a work must be created by a human being to be protected by copyright, and that“[t]he Office will not register works produced by nature, animals, or plants,” giving as an example a work which cannot be protected by copyright a “photograph taken by a monkey.” It could now add “a painting created by AI.”

This is not the first time that AI was used to create a painting. In 2016, a team fed a computer data about 346 Rembrandt paintings and the result was a 3-D printed portrait looking just like one Rembrandt could have painted, the “Next Rembrandt.” The fake (or next) Rembrandt was made out of some 148 million pixels and 150GB of rendered data.

Ron Augustus, director of SMB Markets for Microsoft, who was part of the “Next Rembrandt” project, said in a video interview (@1:00) that they “used technology and data like Rembrandt used his spades and his brushes to create something new.” This argument suggests that whomever used AI technology as a tool to create a work could be its author, just like Rembrandt. ‘Something new’ is original, and originality is required to be protected by copyright.

But even if we consider AI to be a mere tool, it is not a tool like a spade or a brush, as this tool had to be created and could be protected by copyright.

Computer programs can be protected by copyright and software, as it is a computer program, can be protected. A software is defined by the copyright Act as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result” and U.S. courts use an “abstraction-filtration-comparison test” [see here for example] to find out which elements of a computer program can be protected by copyright.

If the tool used to create a work is protected by copyright, does that mean that the work thus created is also protected? Not necessarily, as Section 721.6 of the Compendium specifies that “ownership of the copyright in a work is distinct from ownership of any material object that may be used to create that work. The fact that the author used a computer to write an article, short story, or other nondramatic literary work does not mean that the work is a computer program.”

Therefore Edmond de Belamy cannot be protected by copyright. But, wait, there could be another way.

AI and Conceptual Art

Edmond de Bellamy is not a lone figure, but has relatives, also created using GAN, in fact, he has a whole genealogical tree (see here, here and and here).

While Edmond de Belamy may not alone be protected by copyright, it could be argued that obvious art’s project, as an ensemble, could be protected as a work of art. Failing to do so would further jeopardize the complicated relationship between conceptual art and copyright.

The portraits created by AI formed a genealogical tree, a fake family complete with made-up names, and could be considered original enough to be protected under Feist as an original compilation. However, a sole portrait is not protected by copyright. Should wannabe buyers of the Bellamy portrait consider buying his whole family?

The COPYKAT - all is fair in love and war

They say that "all is fair in love and war," but when it comes to copyrighted content, you need to respect the rules of the game. Today's CopyKat takes a look at Disney claiming fair use, lawyers behaving badly, copyright policy in trade agreements, Aerosmith v. Donald Trump, and a small claims track victory from one of our readers.


Disney: standing up against "Overzealous Copyright Holders"?

Disney has responded to the copyright lawsuit lodged earlier this year in California by the Estate of Michael Jackson (MJJ Productions (et al) v Walt Disney Company and ABC INC). In May, MJ’s Estate claimed that American TV network ABC News and its parent company Disney used copyright material owned by the estate without permission for their The Last Days of Michael Jackson documentary. Disney argues that ABC News should be permitted to use Jackson’s songs and videos in its documentary “without fear of liability from overzealous copyright holders.”


In its 18-page response, Disney is citing both the US Constitution’s First Amendment and the principle of fair use in its defense. The answer begins by acknowledging that Michael Jackson remains “one of the most iconic performers of the last century, and his music career, tumultuous personal life, and tragic passing continue to be enduring topics of public interest even today, nearly a decade after his passing.”

Disney admits that ABC used short excerpts of Jackson’s songs and videos within its documentary, but that doing so was to provide “historical context and explanation tracing the arc and aspects of Jackson’s life and career—precisely what is contemplated and permitted by the First Amendment.” Disney’s lawyers argue that the Estate’s lawsuit, “in violation of these legal principles, constitutes an attempt to exercise unfettered control over public commentary and opinion on Jackson’s life and career.”

As pointed out over at Above the Law, a common misconception about the fair use doctrine in copyright law is that it is reserved for academics, consumers and private individuals. However, anyone - including large corporations who themselves are proponents of strong intellectual property rights - may be entitled to assert fair use. American University’s Center for Media and Social Impact even has a page dedicated to “Examples of Successful Fair Use in Documentary Film” on its website.


Prenda Law's pornography honeypot lawyer (finally) pleads guilty

After nearly a decade of litigation, American lawyer Paul Hansmeier has pleaded guilty to charges of wire fraud and money laundering, and could be jailed for up to 10 years. The diagram shown below was adopted and used by Judge Wright in his 6 May 2013 ruling, showing the Court's best understanding of the convoluted scheme. What makes this case interesting for the Copykat is that Hansmeier’s criminal activity was part of a multi-million dollar fraud scheme to obtain payments from extortion victims to settle sham copyright infringement lawsuits.




Hansmeier’s “law firm” Prenda Law is believed to have made at least $6m (£4.7) from the scheme. In September 2010, Hansmeier and John Steele established the law firm Steele Hansmeier PLLC, later renamed Prenda Law. They began representing clients that owned copyrights to pornographic films, and monitored file-sharing websites to obtain the IP addresses of individuals who downloaded the movies. They then “copyright trolled” and threatened the infringers with lawsuits, which they would settle for about $4,000.


Although the scheme initially paid off for Prenda, the scam quickly unraveled as courts (and activists, including twitter user Fight Copyright Trolls) uncovered fake defendants, shell companies, forged documents, and honeypots. For example, as was later admitted in his plea agreement, Hansmeier admitted that his brother Peter uploaded porn movies to BitTorrent file-sharing websites, including Pirate Bay, to “entice people to download the movies and make it easier to catch those who attempted to obtain the movies.”

In his 2013 judgement issuing sanctions against Prenda Law, California U.S. District Judge Otis Wright stated that the Prenda attorneys had “discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video.” Judge Wright also also referred Hansmeier for investigation on criminal, tax and professional-standards charges.

Finally, despite years of lengthy and convoluted denials by Hansmeier and Steele - including a 64-page submission in which Hansmeier argued “the entire justice system will collapse if he's convicted” - the trolling duo has finally been stopped.


South African copyright reforms: a shining example or bad for business?

Each year, the U.S. Trade Representative (USTR) conducts a review of country eligibility for trade benefits under the African Growth and Opportunity Act (AGOA). The purpose of this legislation, passed in 2000, is to assist the economies of sub-Saharan Africa, and to improve economic relations between the United States and the region.

Benefits of being an AGOA-approved country include certain trade preferences, including duty-free export of some goods into the United States. However, the US President must determine on an annual basis which countries qualify for AGOA status. According to the AGOA website, this process was established as a means to incentivise improved labor rights and movement toward a market-based economy.

In a recent filing with the USTR, the International Intellectual Property Alliance (IIPA) has argued that South Africa’s attempts to reform its 1978 copyright legislation could “place South Africa out of compliance with the AGOA eligibility criteria regarding intellectual property.” The Copyright Amendment Bill, which was proposed in May 2017, is currently under consideration by the National Assembly.

Speaking before the USTR panel, intellectual property and international trade lawyer Kevin Rosenbaum explained that “many provisions of the 2017 Bill lack clarity, create unnecessary burdens on rights holders, and/or fall short of needed reforms. Unfortunately, South Africa’s proposed copyright amendments are inconsistent with a healthy, sustainable and fair digital marketplace for creators, both domestic and foreign, and run afoul of the AGOA eligibility criteria to provide adequate and effective protection and enforcement of intellectual property.”

On the other hand, the folks over at TechDirt appear to disagree with the IIPA, arguing instead that “those drafting the text seem to have listened to the calls for intelligent fair use rights fit for the digital world.” TechDirt correctly predicts that the fair use proposal will come under heavy attack from big industry players and their lobbyists - including the IIPA.


“Objection!” to calling alleged infringement “theft” is overruled

Words are the primary and essential tools of any lawyer. Cases turn on the meaning that judges and juries ascribe to words, and lawyers must use the right words when carrying out the wishes of their clients. With this in mind, is it unduly prejudicial for a claimant to refer to copyright infringement as stealing, theft, or some other related term? American judge Liam O’Grady thinks not.

As discussed in depth on the 1709 Blog earlier this month, music publisher BMG Rights Management and Cox are gearing up for yet another chapter in their ongoing legal saga. Ahead of this new courtroom drama, both sides have been making various requests of Judge O’Grady.

BMG’s lawyer had previously stated in submissions that Cox had aided and abetted “stealing,” “illegal conduct,” and “illegal infringement.” On the belief that BMG’s counsel would engage in the “same improper practice” this time around, Cox therefore sought a preemptive order to ban “argumentative statements” such as “stealing” and “theft” which could prejudice Cox and risk confusing the jury.

Judge O’Grady refused Cox’s request. In the court order, he explained: the Court does not find it appropriate to bar BMG from referring to copyright infringement as stealing, theft, or some other related term, as such language is not unduly prejudicial to Cox. The Court anticipates that counsel for both parties can and will abide by the rules during opening statements. If a party has good cause to object to a specific comment made by opposing counsel, the party may do so at that time.


Aerial Photographer won't let Cardiff Steel fly away free with his image

Several years ago, the 1709 Blog featured the case of Mr Jonathan Webb and his triumph against copyright infringements of his professional aerial photography. Mr Webb has recently reached out to us again, to inform us another courtroom victory, which you can also read about on webbaviation.com. In total, Mr Webb was awarded £2,851.42, which was comprised of £1500.00 in damages, £306.72 interest, £285.00 in Court Fees and £759.70 for litigant's in person costs.

This case focused on the copyright infringement of an aerial photograph of Sophia Gardens Cricket Ground in Cardiff, pictured below. Mr Webb explained the defendants Cardiff Steel just “helped themselves to the photo from my website and added it to their website, with the only alteration being a size reduction.”

Mr Webb was awarded damages under s. 97(2) of the Copyright, Designs & Patent Act 1988. As Cardiff Steel “derived some commercial benefit from the use of the image over the years 2011/2-2017,” Mr Webb was awarded awarded £1500. He explained that this was an amount equal to approximately four times his normal licence fee.

The other interesting thing brought to our attention was Mr Webb’s award of additional costs pursuant to the Civil Procedure Rules part 27.14 (2)(g). The rule states that the Court may award “further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably.” 

We understand from Mr Webb that this is a relatively rare award to receive, and was attributable to the defendant “making very little effort to settle the case. They sent one short email and wrote a short written defence, both blaming their Web Designer.” The judge even mentioned this in the opening paragraph of his judgement, stating: I have had the benefit of considering Mr Webb’s claim form and particulars of claim, and also a helpful bundle of documentation and evidence prepared for his hearing, which includes a full witness statement. The defendant has only provided a short form defence.

In his correspondence with the CopyKat, Mr Webb stated that he “didn’t know why the defendant did not take the claim seriously but the most likely explanation could be they took advice from the many copyright infringement forums on the internet. The overwhelming advice from these forums is to ignore any copyright infringement claims, and this case illustrates the perils of ignoring legitimate claims. This was an important case for me as the type of company and nature of use were all very typical of infringement of my work.

“The UK has become somewhat of a Copyright Wild West in recent years and I estimate that 99% of users of my work are doing so unlawfully. The IPEC small Claims Track can be something of a two edged sword: for claimants like myself who are familiar with the way it works, it's great because I can pursue small cases which would not otherwise be possible. The downside is that many creatives find the whole process too complicated and difficult and so do not enforce their rights.

This has led to a collapse in the market for low-value intellectual property like photographs, which most users can now simply obtain through a search engine, rather than by actually licencing the works. I have found some of Britain's biggest businesses simply helping themselves to my work, and removing my name from the images.”

The CopyKat notes that the judge praised Mr Webb for preparing his case thoroughly and in detail. Copyright can be, as the judge rightly pointed out, a complicated area - and his thoroughness not only proved to be of assistance to the Court, but contributed to his award of damages in the end.


Livin' on the edge (You can't help yourself from infringin')

And finally, although the CopyKat doesn’t like to stray into politics, it’s worth noting that Donald Trump can now add “copyright violations” to his growing list of legal concerns. Aerosmith’s Steven Tyler argues that by playing the band’s 1993 hit "Livin' on the Edge" at a West Virginia rally, the President infringed the singer's copyright. You can see and hear a clip of the (alleged) infringement in question on twitter.

Tyler’s attorney Dina LaPolt cited the Lanham Act which, although the primary federal trademark legislation in the United States, also speaks to false advertising. In particular, Section 43 of the Act prohibits “any false designation or misleading description [which] is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person.” By playing the Aerosmith song in a public arena, LaPolt asserts that Trump is giving the false impression that Tyler is endorsing Trump’s presidency.

The letter, excerpts from which are available on Variety, goes on to explain that “Mr. Tyler’s voice is easily recognizable and central to his identity, and any use thereof wrongfully misappropriates his rights of publicity. Mr. Trump does not have any right to use the name, image, voice or likeness of our client, without his express written permission.”

Katy Perry sued for copyright infringement, is Marcus Grey the Dark Horse?

his update from Hayleigh Bosher writing on the IPKat

Following this Kat's post on the Ed Sheeran copyright infringement case relating to the song "Shape of You" (here), she came across another similar dispute going on over the pond!

This case, brought in the US District Court of California, is between Plaintiffs Marcus Gray, Chike Ojukwu, and Emanuel Lambert who are Christian rap/hip-hop artists and Defendants Katheryn Elizabeth Hudson (Katy Perry), Jordan Houston (Juicy J), Lukasz Gottwald (Dr Luke) as well as a number of other individuals and music publishers. 

The allegation was first filed on the 1st July 2014, which claimed that the song “Dark Horse” infringed upon the Plaintiffs’ copyright in the song “Joyful Noise.” On 25th June 2018 the defendants filed a motion for a summary judgement and the Court hearing took place on 13th August.

Kitty Perry - by Molly Marshall

“Joyful Noise” appears on Gray’s 2008 album titled Our World Redeemed. The album debuted at #5 on the Billboard Gospel Chart, #1 on the Christian Music Trade Association R&B/Hip-Hop Chart and was nominated for a number of awards. There are at least five videos of "Joyful Noise” online which have a collective total of 1,365,041 YouTube views, 1,531,856 plays on Moore’s Myspace page and 933,868 on Gray’s Myspace page. 

“Dark Horse” was written by Walter, Gottwald, Sandberg, Perry, Hudson, and Houston in March 2013. The song charted at #1 in three countries, reached top 10 in almost 20 countries, and was nominated for Best Pop Duo/Group Performance at the 57th Annual Grammy Awards. The song sold 13.2 million units (combined sales and track-equivalent streams), becoming the second best-selling song worldwide in 2014.

Was there copying?

As in the UK, in order to establish copyright infringement, the plaintiffs must show (1) ownership of the copyright (not disputed in this case); and (2) that defendant copied protected elements of their work. 

The writers of “Dark Horse” claimed that they had never heard of any of the Plaintiffs or their music, including “Joyful Noise.” However, the Plaintiffs dispute the defendants’ claim and maintained that the defendants copied “Joyful Noise” when they wrote “Dark Horse.” Proof of infringement therefore required that (1) the defendant had ‘access’ to the plaintiff’s work and (2) that the two works are ‘substantially similar.’

1) Access

In order to prove access, the plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work. Where there is no direct evidence of access, circumstantial evidence can be used to prove access either by (1) a particular chain of events between the plaintiffs’ work and the defendants’ access to that work (such as through dealings with a publisher or record company) or (2) showing that the plaintiffs’ work has been widely disseminated.

In this case the Plaintiffs’ focused on widespread dissemination. The Defendants argued that this required a high burned of proof, and that that the mere existence of copyrighted materials on YouTube and Myspace would not justify an inference of access. However the Court stated that at this stage all plaintiffs must do is set out specific facts showing a genuine issue for trial as to whether there is a reasonable possibility that defendants had the chance to view the protected work. It recognised that whilst the mere existence of YouTube and Myspace videos did not justify an inference of access, but the Court was persuaded that the plaintiffs demonstrated more than just mere posting of “Joyful Noise” on the internet. 

As a result of millions of views of “Joyful Noise” on YouTube and Myspace, and the success and popularity of “Joyful Noise” in the Christian hip-hop/rap industry, a reasonable jury could conclude that there is more than a “bare possibility” that defendants—who are experienced professional songwriters—had the opportunity to hear “Joyful Noise.” In addition, it did not matter that the song did not receive commercial success, since it did achieved critical success, including a Grammy nomination.

[On a side note, comparing this to the Sheeran v Switch case - Switch went for varying degrees of both approaches in that they argued the two had mutual friends and that the 'Oh Why' song was on several platforms, but his YouTube video only has 41,122 views and there's no Grammy nomination...]

But back to the matter at hand - having convinced the Court that there was a reasonable possibility that the writers had access to the work, the next question was whether or not the songs were substantially similar. 

2) Substantial Similarity

Kitty Kat performing on stage... - Matt Buck

To determine, for purposes of summary judgement, whether two works are substantially similar, a two-part analysis is undertaken - an objective extrinsic test and a subjective intrinsic test. 

The Plaintiffs relied on a musicologist report, which stated that the “most obvious, pervasive, and substantial similarity” between the two songs is a “descending ostinato 8 figure which serves as the primary formal building block for both tracks.” It went on to say that the ostinatos in both songs are identical, both ostinatos are nearly identical in pitch content and melodic contour as is the mechanical style, and that the timbre of the upper and primary voice are remarkably similar.

However, the Defendants relied on the report of their own musicology expert who opined that “‘Dark Horse’ does not share any significant structural, harmonic, rhythmic, melodic, or lyrical similarities, individually or in combination, with ‘Joyful Noise.’” 

The Court found that the Plaintiff’s expert testimony was sufficient to raise a genuine issue of material fact as to substantial similarity, as it identified particular features of the works which, taken in combination, could support a finding of substantial similarity by a reasonable jury. 

As such, the Court concluded that the defendants’ motion for summary judgement was denied... and we wait to see how this one plays out! 

Traditions, Traditions, an Intellectual Property Perspective

The Agence France Presse posted a video on Twitter this month, which shows that the French fashion house Christian Dior had used traditional embroidery motifs in its pre-Fall 2017 collection  (see here too). The embroideries are originally from the Bihor area in Romania and adorn a traditional garment, the “cojoc binşenesc” (more about it here and here).

In this particular instance, the community reacted by taking advantage of this publicity and launched a website, Bihor Couture, which sells traditional Bihor garments and accessories.  As the 1709 Blog is a copyright blog, I will not comment much on the trademark issues which the choice of ‘Bihor Couture’ could raise, but here are my quick two cents. In the U.S., parody is a defense in a trademark infringement case. If you are interested in this topic, you can read about the recent My Other Bag Second Circuit case here and here. French trademark law does not have a parody exception, but courts have recognized such a defense, albeit sparingly, when parody was used as a social/political comment (see for instance this case, where the French Supreme Court held in 2008 that article 10 of the European Convention of Human Rights protects the right of non-profit Greenpeace to parody the Areva brand).

Can embroideries be protected by copyright?

Well yes they can, on both sides of the Atlantic, if they are original enough. Embroidery motifs may, however, be in the public domain, or not original enough to be protected by copyright.

In the U.S., embroideries can be considered fabric designs which are copyrightable. The mere fact that embroideries may adorn a piece of garment does not prevent them to be protected by U.S. copyright, even though a garment is an uncopyrightable useful article.

Since Star Athletica [see our comment on the case here], an artistic work applied on or incorporated into a garment  may be eligible for copyright protection if it: "(1) can be perceived as a two or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work-either on its own or fixed in some other tangible medium of expression-if it were imagined separately from the useful article into which it is incorporated."

In France, the concept of “Unité de l’Art” prevents French copyright law (droit d’auteur) to differentiate art from mere applied art (art appliqué) such as embroideries.

However, traditional embroideries may be in the public domain. The embroideries which inspired Dior may be in the public domain, or they could have been created recently enough to be protected by Romanian law. However, even traditional works in the public domain may soon be protected by intellectual property.

Protection of traditional works by moral rights

WIPO considers that traditional cultural expressions (TCEs), or "expressions of folklore," may include handicrafts, and may be protected by copyright if recently created. It also noted that “[i]n many countries and for many indigenous and local communities, the handicraft sector plays a vital social and cultural function and contributes significantly to communal, local and national economies.”

WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore will hold its 37^th session from August 27 to 31. The Committee published last month draft articles on the protection of traditional cultural expressions, which are part of the session’s agenda and which are aimed to become an international instrument directing member States to better protect TCEs.

One of the policy objectives of the instrument would be to “prevent the misappropriation and misuse/offensive and derogatory use/unauthorized use of their traditional cultural expressions.” This is of particular interest for communities which have created designs attracting the attention of fashion companies eager to satisfy the want of their customers for authenticity.  One may remember, for instance, that a U.K. fashion company used a traditional Inuit motif on a sweater.

One of the principles stated in the WIPO draft articles acknowledges that “traditional cultures and folklore constitute frameworks of innovation and creativity that benefit Indigenous [Peoples], [local communities] [and nations] / beneficiaries, as well as all humanity.”

It also notes “the value of a vibrant public domain and the body of knowledge that is available for all to use, and which is essential for creativity and innovation, and the need to protect, preserve and enhance the public domain.” It would “secure/recognize rights already acquired by third parties and secure/provide for legal certainty and a rich and accessible public domain.”

The instrument would direct “Member States [to] the economic and moral rights and interests of beneficiaries in secret and/or sacred traditional cultural expressions….as appropriate and in accordance with national law, and where applicable, customary laws.  In particular, beneficiaries shall enjoy the exclusive rights of authorizing the use of such traditional cultural expressions.” (my emphasis).

Therefore, even traditional cultural expressions which are in the public domain may be protected by moral rights, which are perpetual. This would be an interesting development for communities wishing to prevent the use of designs, which are in the public domain, but which they consider sacred.

This is certainly worthy of interest at a time when “cultural appropriation” is a hot topic, in many domains. Madonna has been recently criticized for wearing Berber clothes and a choreographer has been criticized for using in one of his works a traditional dance, with dancers in costumes looking like traditional costumes.

Could traditional works be one day perpetually protected by moral rights?

Image is courtesy of Flickr user storebukkebruse under a CC BY 2.0 license.

Is Google the ultimate Puppet Master?

There is a fascinating article on the TRICHORDIST website that looks at who has been paying and who has been driving the resistance to amendments and reform of EU Copyright law (in particular Article 13 of the draft Copyright Directive). Vast resources had been pumped into a campaign to 'save the internet' from the greed of the bully boys and girls in charge of film companies, record labels, publishers and other content owners. But what is the truth and who is behind 'OpenMedia' - an organisation that on surface seems to be all about keeping the internet  open? 

Julia Reda, the German Pirate Party MEP may have been the public face of resistance to reform - But who was behind these campaigns? Well have a read and see what you make of this ...... But (SPOILER ALERT) the conclusion reached by author Volker Rieck is this: "Ultimately, US companies from the Internet economy financed significant parts of a campaign in Europe to influence EU legislation. What looked like grassrootes movement from the outside was in fact a classic form of astroturfing – designed to create the appearance of a popular movement....... "

There is more - much more in

Anatomy of a Political Hack

https://thetrichordist.com/2018/08/03/anatomy-of-a-political-hack-guest-post-volker-rieck/

and more in the Times here  https://www.thetimes.co.uk/article/google-funds-activist-site-that-pushes-its-views-rg2g5cr6t

THE COPYKAT reaches out to a new public

Howzat! (C) 2018 Ben Challis

There has been plenty of recent comment on the decision by the CJEU in C‑161/17 Land Nordrhein-Westfalen v Dirk Renckhoff where the court found that users who publish content which is already available on the internet would  still need the further consent from the rights owner in question saying “The posting on a website of a photograph that was freely accessible on another website with the consent of the author requires a new authorization by that author”. We have already posted Eleonora's analysis of of CJEU's thought provoking decision and this blogger, a very keen sports photographer, is rather pleased with the CJEU's reasoning which he feels has some resonance - but the decision has stirred up widespread criticism. To me the fact remains when I post a photo on my sports photography Facebook page - for example the one to the left on this very blog - it's targeted to a specific audience for a specific reason - and I would not want to see my photo re-used on a third party website without my consent - being pointed at a 'new' audience whether that's free or perhaps supported by advertising. I certainly would want the right of further consent  should that image used for a different purpose such as in advertising.  And the case is being seen as a pro-copyright with Reuter's headlining with "EU's top court backs copyright holder in landmark ruling" - not least as the Court went against the Opinion of Advocate General Campos Sanchéz-Bordona. More here and others may have different opinions to this CopyKat's thoughts above. 

Techdirt have posted a fascinating insight into the somewhat complex set of cases involving a woman named Shirley Johnson, who posted videos to YouTube that were critical of the New Destiny Christian Centers and Paula White Ministries. This in turn resulted in a lawsuit from Ms Paula White et al for copyright infringement. So far so good. But things did not go smoothly for Ms White. Her case seemed to ignore the fairly obvious defence of fair use - and indeed as time progressed the case was dismissed, and then Johnson counter sued for "malicious prosecution" and she also filed DMCA s512(f) abuse claim. That claim is ongoing by techdirt now reports that  the court awarding Johnson $12,500 against White for the "emotional harm" from the 'bogus' copyright claim. Remembering it was Paula White Ministries (et al) who started this battle, the court was fairly scathing of how White treated the litigation as time went on, saying that Paula White Ministries "have exhibited a patent disregard for the Court’s discovery orders and processes" and "maintained that they did not have to comply with discovery, demonstrating a preordained belief that they were above this process" and  "The Court now finds that the interests of justice require default judgment as the only effective remedy" awarding very limited costs to Johnson (who represented herself) and awarding  $12,500 for emotional harms, although this was limited because Johnson seemingly did not seek medical treatment for the harm.

Another expensive (with hindsight) mistake seems to have been Ludlow Music's efforts to protect the 'copyright' in the iconic US song ‘We Shall Overcome’. Ludlow have now been handed a legal costs bill of $352,000 after conceding earlier this year that the work was public domain in America. The case was settled in January and Ludlow declared that both the melody and lyrics of ‘We Shall Overcome’ are “hereafter dedicated to the public domain”. Now Judge Denise Cote has said that Ludlow should cover the other side’s legal fees - despite the fact that Ludlow’s defence wasn’t “objectively unreasonable” CMU says that the Judge awarded legal costs to reward the Plaintiffs for enabling public access to “an American treasure”. The judge stated: “The degree to which plaintiffs succeeded in this litigation, and the inestimable benefit they have conferred on the public through doing so, renders this the type of lawsuit that should be encouraged in order to promote the purposes of the Copyright Act”.

More from the USA: The Music Modernization Act, which quickly passed the House unanimously in April, and the through the Senate Judiciary Committee, looked in some trouble after an objection by collection society SESAC (formerly known as Society of European Stage Authors and Composers) and the Harry Fox Agency which administers licenses that would be affected by the operations of a new blanket licensing collective in the legislation. Owners Blackstone persuaded Senator Rafael E. “Ted” Cruz (R-Texas) to halt the bill’s progress in the full Senate and things looked tricky until a compromise clarified that the new organization only will administer a particular kind of license, and will have exclusive purview only over blanket licenses - and according to industry sources the Harry Fox and other organisations will still be able to control individually negotiated licenses. before the compromise both the Nashville Songwriters Assn. International and the Songwriters of North America had encouraged their members to speak out against SESAC’s effort to get changes made to the bill, but now the NSAI have said “Reaching consensus within the music industry, on what may be the most important songwriter legislation in history, is a win for American songwriters and the broader music community. We are pleased to have put our differences behind us and support this bill in unanimous harmony. The Nashville Songwriters Association International has been a friend and fan of SESAC’s for decades and that is how our relationship will immediately resume”.

He may have passed but he is still in the news: A takedown notice of the iconic 2016 fan singalong video of 'Purple Rain' that was shot just hours after the singer’s death, has now been withdrawn and the video has been reinstated. After Prince’s death in thousands of fans congregated in the streets of Minneapolis to mourn and one of the most iconic moments from that night involved a video of those fans singing “Purple Rain” together. The video, shot by the Star Tribune’s Aaron Lavinsky, quickly went viral with his video tweet receiving over 14,000 retweets and 17,000 likes. Universal Music then filed a DCMA takedown of the video but after a social media storm at the end of July with Lavinsky saying  on Twitter "This is very disturbing: Universal Music filed a DCMA takedown on a video I shot of thousands of Prince fans singing Purple Rain the night of his death. This was clearly fair use and UMPG and Twitter are in the wrong"  UM have relented and the video is back online prompting a tweet from Lavisky saying "Update: Prince faithful can rejoice -- UMPG has retracted their DCMA takedown of my video and it has reappeared in the original tweet. PURPLE RAIN, PURPLE RAIN!".

THE BBC has halted its action against a pro-independence blogger following a row over alleged YouTube copyright infringements. The UK's public broadcaster had denied political bias after Stuart Campbell, who runs Wings Over Scotland, claimed his channel was closed without warning after the BBC complained about 13 videos that had been uploaded to it and that his use was 'fair dealing'.  Now the channel has been reinstated by YouTube and the BBC has said it will review its actions.

Techdirt is celebrating after it discovered the Finnish Bar Association is reprimanding Finnish law firm Hedman Partners for seemingly violating copyright law by sending out 'settlement letters' to supposed copyright infringers in what Techdirt opine is a classic trolling exercise. Hedman lawyer Joni Hatanmaa seems less concerned saying the firm's actions on behalf of its clients against suspected infringers will continue: "cases against infringers will continue. Plenty are still underway and the project continues to expand."

And finally The BBC reports that a US court has ruled that the plot of Oscar-winning fantasy film The Shape of Water was not copied from a 1969 play. Judge Percy Anderson has now dismissed the legal action that claimed Guillermo del Toro's film copied the story of Let Me Hear You Whisper by Paul Zindel. The late playwright's son sued del Toro, the Fox Searchlight studio and others in February and Zindel v. Fox Searchlight Pictures, Inc. et al, case number 2:18-cv-01435, filed in the United States District Court Central District of California, claimed the two works were "in many ways identical". In his ruling  the judge said they only shared "a basic premise". Del Toro's film, which won four Academy Awards in March including best picture, told of a mute cleaner who falls in love with an amphibious creature. David Zindel's suit claimed the film bore a number of similarities to his father's play, in which a cleaning lady goes to work in a laboratory where experiments are carried out on dolphins. Judge Anderson accepted that the plots were similar but ruled that the central concept was "too general to be protected".

Copyright’s Conceptual Cabin Fever

Readers of this blog may remember that artist Cady Noland filed a copyright infringement suit last year, claiming that, by reconstructing one of her wooden sculptures which had been damaged, a museum had thus infringed her copyright by reproducing her work and had also violated her moral rights, as provided to her by the Visual Artists Rights Act and Section 14.03 of the New York Arts & Cultural Affairs Law.

Cady Noland had created in 1990 her “Log Cabin Blank With Screw Eyes and Cafe Door” (the Work), made out of wooden logs. It represents the façade of a log cabin, with one open door and two windows, and “[t]wo U.S. flags are an integral part of the sculpture,” according to the July 2017 complaint. The work was created to be displayed outdoors, and after years exposed to the sun and cold of Berlin, the wood used to create the Work had rotted. 

Cady Nolan asserted in the 2017 complaint that she "has continuously owned the copyright to the Work.  An application for registration of the copyright to Log Cabin together with the required fee and deposit material was transmitted to the Copyright Office in proper form and registration was refused.  Plaintiff has complied with the requirements for registration of Log Cabin as provided in 17 U.S.C.  § 411(a), and in accordance with said section will be serving notice and a copy of this Complaint on the Register of Copyrights” (my emphasis).

Indeed, the artist had filed an application to register the Work as a sculpture in July 2017, but this was denied the same month, because the work “lacks the authorship necessary to support a copyright claims” and because it “is a useful article… that … does not contain any non-useful design element that could be copyrighted and registered.”

The following month, Noland requested the Review Board to reconsider this decision and to register her work. This time, the Copyright Office considered the work to be a sculpture and not a useful article (indeed, what exactly is the use of a single log wall?), but refused to register it anyway, as it did “not contain a sufficient amount of creativity either elementally or as a whole to warrant registration.”

In December 2017, Noland requested the Review Board of the United States Copyright Office (the Board) to reconsider the Registration Program's refusal to register her work a second and final time, claiming that the work was original enough to be protected by copyright, and arguing she had made creative choices in order for the work to embody her idea to “construct the front of a house… to showcase the failed promise of the American dream” and that “the selection, arrangement, and combination of elements present in [the] work clearly meet the threshold of creativity required for a work to obtain copyright protection.”

On May 25, 2018, the Board affirmed the Copyright Registration Program’s denial to register Cady Nolan’s Log Cabin.

Defendant in the copyright infringement suit filed a motion to dismiss last April and this month Nolan filed an opposition to the motion. Plaintiff in a copyright infringement suit must prove ownership of a valid copyright, and thus the Board denial of copyright registration is likely to influence the outcome of the current lawsuit.

Why is Log Cabin not original enough to be protected by copyright?

A work needs to be original to be protected by copyright. The Copyright Act does not define what is “originality,” but the Supreme Court defined it in Feist as “mean[ing] only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” The Board quoted Feist, and also Section 906.1 of the Compendium on “uncopyrightable material,” which explains that “[t]he Copyright Act does not protect common geometric shapes, either in two-dimensional or three-dimensional form.” Such shapes must be combined “in a distinct manner indicating ingenuity” (Atari Games Corp at 883). Indeed, while geometric shapes cannot be protected by copyright, their creative arrangement, if original, can be protected.

The Board analyzed Noland’s Work and found that it “does not contain a sufficient amount of original and creative artistic or graphic authorship to sustain a claim in copyright. The Work is a simple representation of a standard log cabin façade with joinery; thus any authorship is de minimis and does not support registration. “

Nolan had argued that, while some of its elements are found in architectural work, it is a sculpture. The Board recognized that argument, and agreed that the work is a sculpture. It added, however, that the Work “is a simple expression of rote designs and representations of a log cabin; the fact that it is not functional or useful is irrelevant to that analysis” and concluded that “[t]he Work thus is a standard representation of a log cabin façade, which does not meet the minimum degree of creativity required for copyright protection.”

Conceptual art and copyright

Copyright and conceptual art have a somewhat difficult relationship and rooted in the necessity to prove their originality and fixation in a tangible medium of expression.

Wildflower Work is such conceptual work of art which has been denied copyright protection. It was a flower garden designed by Chapman Kelley and planted in the eighties in Chicago’s Grant Park In Kelley v. Chicago Park District, the Seventh Circuit found that Wildflower Work was original enough to be protected by copyright, but could not be protected because it “lack[ed] the kind of authorship and stable fixation normally required to support copyright.”

The Seventh Circuit explained that:

“recognizing copyright in Wildflower Works presses too hard on these basic principles. We fully accept that the artistic community might classify Kelley's garden as a work of postmodern conceptual art. We acknowledge as well that copyright's prerequisites of authorship and fixation are broadly defined. But the law must have some limits; not all conceptual art may be copyrighted.”… A garden's constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden — the colors, shapes, textures, and scents of the plants — originates in nature, not in the mind of the gardener.”

The district court in Kelley had found the work to be uncopyrightable for lack of originality because its design used simple elliptical shapes. However, the Seventh Circuit found this argument to be “misplaced,” explaining that “an author's expressive combination or arrangement of otherwise noncopyrightable elements (like geometric shapes) may satisfy the originality requirement.” 

In our case, the Board cited Satava v. Lowry, a Ninth Circuit case  which explained that “a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”

Cady Nolan is not yet out of the woods (sorry).

Image is courtesy of Flickr user Thomas Hawk under a CC BY-NC 2.0 license.