The CopyKat - Is Disney skating on thin Ice?

Back in  August last year the CopyKat noted that Disney could be heading to trial over copyright infringement claims involving it's blockbuster animated hit and $1.22 billion grossing "Frozen".  Now that seems to have come about. Back in August, Kelly Wilson, who created a short 2D computer-animated film called "The Snowman", survived the first round in a copyright lawsuit against the company, after a judge noted some key differences between the two films - such as "Frozen" being lighthearted and The "Snowman" not, but also found some similarities. Now Judge Vincent Chhabria has stated that he has a “fairly strong inclination” that a jury should decide whether the Disney official with creative responsibility for the trailer also had access to Wilson’s computer-animated film. Chhabria stated that he will issue an opinion on the two party’s summary judgment motions, but indicated the matter was headed for a jury trial.  Wilson claims that the marketing trailer for “Frozen” directly infringed on her copyrighted film. Wilson’s complaint states that she created "The Snowman" between 2008 and 2010 and that the short was screened at eight film festivals. One of those screenings was at the San Francisco International Film Festival in 2011, where she shared the stage with an employee of Disney’s Pixar Animation Studios, which was also screening a film in the same session. Wilson’s "Snowman" is the story of a snowman who has to race to save his carrot nose from a group of ravenously hungry rabbits after it falls off and slides to the middle of a frozen pond. Wilson claims the 2013 "Frozen" trailer featuring Olaf dashing to save his carrot nose in a race to the middle of a frozen pond with a reindeer is substantially similar to her film. “The storyboards tell an interesting story,” Judge Chhabria said: “I think it’s a story to be told to the jury.”  More here.

The U.S. Court of Appeals for the Ninth Circuit has revisited the issue of a copyright co-owner’s right to grant an exclusive right to a third party, clarified its prior ruling in Sybersound v. UAV, and explained that a copyright co-owner may unilaterally transfer any exclusive copyright interest he or she possesses.  The decision in in the 'Jersey Boys' case which has been covered by this blog here and here: Corbello v. DeVito, Case No. 12-16733 (9th Cir., Feb. 10, 2015) (O’Scannlain, J.) (Sack, J., sitting by designation, concurring in part). The interesing resource for U.S. clopyright decisions, JDSupra,  has the full picture.

UK copyright laws do not provide online content providers with freedom to retransmit TV programmes shown by UK public service broadcasters (PSBs) to fixed-line internet users who could otherwise watch the programmes on TV, the UK government has said. The Department for Culture, Media and Sport (DCMS) said that it is its view that rules contained under s73 of the Copyright, Designs and Patents Act 1988 (CDPA) do not "apply to content transmitted over the internet". The provisions were drawn up to "support the development of analogue cable infrastructure in the 1980s and 1990s" and are now "out-dated", it said. DCMS said that it intends to repeal s73 "at the earliest opportunity" but has opened a consultation on what the "potential implications" of that move would be as part of wider plans to remove existing regulations relating to public service broadcasting. From the ever excellent Out-law.com. The Court of Appeal has of course referred further questions to the Court of Justice of the European Union (“CJEU”) in ITV Broadcasting v TVCatchup (C-607/11) - the second time that the case has been before the CJEU. The Court of Appeal has sought clarification on whether s73 CDPA (the defence for regionalised retransmission of broadcasts by cable) is compatible with Article 9 of the InfoSoc Directive (2001/29/EC) and that it covers streaming of public service broadcasts via the Internet. If you can stomach any thing more on the CJEU on communicating with the 'new public', there's more from Professor Jan Rosen over on the IPKat http://ipkitten.blogspot.co.uk/2015/04/the-cjeu-new-public-criterion-national.html

The latest efforts by the American record industry to force terrestrial radio stations to pay royalties to labels have moved forwards with new proposed legislation in the Congress:  The Fair Play, Fair Pay Act  is backed by four members of the House Of Representatives: Democrats Jerrold Nadler, John Conyers Jr and Ted Deutch and Republican Marsha Blackburn. While AM/FM radio stations do not pay royalties to labels, online and satellite radio stations do, because the Digital Millennium Copyright Act applied a 'digital performing right' to the sound recording copyright. The New Act would  provide for a general public performance right for all sound recordings that are still within copyright in the USA, including per-1972 recordings which a number of digital operators (including SiriusXM) have argued are outside of federal law. More here.

And following on from that, the U.S. Second Cuircuit Court of Appeals will consider whether the owners of pre-1972 sound recordings have performance rights to their songs in an appeal brought by SiriusXM is seeking to appeal the ruling of New York federal judge Colleen McMahon's that denied its summary judgment motion in a lawsuit brought by Flo & Eddie of The Turtles. In her opinion, the judge addressed whether New York law protected public performance and wrote that "acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law — only that they failed to act on it."  SiriusXM is presenting two questions to the 2nd Circuit. First, “Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance?” And Second, “Does the Dormant Commerce Clause prohibit the State of New York from enforcing a property right that it recognizes at common law?” More on the Turtle's actions here.

HBO has blamed Periscope for facilitating mass copyright infringement after four episodes of the new series of Game of Thrones were leaked and widely shared using the service. According to The Hollywood Reporter, HBO has sent takedown notices to Periscope and it's also taken a dig at Periscope for what it implies is a hands-off attitude toward piracy. "In general, we feel developers should have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notifications". Periscope is owned by Twitter and the app  lets users broadcast whatever's around them. Game of Thrones was the most-pirated TV show globally during the last three years.

As the Australian courts ordered Australian internet service providers to reveal the identities of 4,726 internet users who had illegally downloaded ‘Dallas Buyers Club’, there was a massive rise in Google searches for ‘VPN’ : By using VPN services or BitTorrent proxies, user's sharing activities can no longer be linked to their ISP account.

The Fincial Post tells us that the Ontario Court of Appeal has certified a class action allowing the province’s 350 land surveyors to sue the managing corporation of Ontario’s electronic land registry system for copyright infringement. At the heart of the case is the surveyors’ claims that they retain copyright in the surveys they prepare and register. Teranet, who has managed the electronic land registry for the provincial government for 25 years, scans the surveys into digital format and adds the electronic information to its database. Teranet also provides electronic copies of the surveys to system users for a regulated fee but pays nothing to the surveyors. The surveyors claim this infringes their copyright.

And finally from the China IP Newsletter from the IPO, UKTI and British Embassy in Beijing, news that the Chinese State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) has announced new regulatory measures - effective from April 1 - limiting foreign TV shows to a maximum of 30% of content on major streaming platforms. The content of foreign shows will also be subject to stricter supervision and must be pre-approved by SAPPRFT. Pre-launch censorship checks cause distribution in China to lag behind international release dates and have been blamed for increases in online piracy in the country. More here in Chinese.


CONGRATULATIONS to Keswick Football Club for their victory in the Westmorland Senior Cup on the 18th April 2015. Well done !!!!

The CopyKat - Caymans, C-More, Catchups and Costs

I imagine Sky TV will be breathing a partial sigh of relief - as over on the IPKat Eleonora has a very interesting update from the CJEU in Case C-279/13 C More Entertainment headlined with CJEU says that live broadcasts are not communication to the public within InfoSoc Directive but Member States can protect them and where the court has decided that "[The Information Society] [D]irective provides that broadcasting organizations may prohibit the provision to the public fixations of their broadcasts, so that everyone can access them from a place and at a time chosen individually."  the Court note[d] that, with regard to the nature and extent of the protection which Member States may recognize broadcasting organizations, the Directive does not harmonize any differences between national laws, so it does not preclude more protective provisions. Other relevant decisions are the Svensson case (C‑466/12), where the European Court ruled on (mere) hyperlinking holding that, while a link is an act of making available, where a work is already accessible on the open internet, then that act of making available does not require the consent of rightsholders because it is not a new public, and Bestwater where the CEU found that the framing of a work (or other protected material) which is freely available on a publicly accessible website is allowed, unless it is directed at a different audience than originally intended or is communicated (to the same audience or not) by using different technical means.

The Cayman Islands Minister of Commerce Wayne Panton has announced that the island's legislation will be updated to reflect current UK copyright laws. The minister explained the aim is to offer stronger intellectual property protection that is in line with Britain. As of now, Cayman Islands copyright laws date back to the UK Copyright Act of 1956. Whilst the UK repealed that Act in 1988, the Cayman Islands law remained the same. In a release sent this week government officials said the UK had extended its current copyright Act to the Cayman Islands. The Act has been extended by the Copyright (Cayman Islands) Order 2015, which was passed by the UK Privy Council on 19th March. The new set of copyright laws will replace the UK’s 1956 Act in the Cayman Islands and in its place will be the extensions of the UK’s 1988 Copyright Act. The Cayman Islands are a British Overseas Territory in the western Caribbean Sea. The territory comprises the three islands of Grand Cayman, Cayman Brac and Little Cayman, located south of Cuba and northwest of Jamaica

A New York judge has thrown out the 2012 lawsuit from TufAmerica accusing the Beastie Boys of sampling 1980s funk trio Trouble Funk without permission on 1989’s Paul’s Boutique, according to Time. The judge ruled that TufAmerica, didn’t have the exclusive rights to the two samples in question. After Trouble Funk’s deal with Island Records was terminated, TufAmerica agreed in 1999 to administer copyrights for only two of Trouble Funk’s members; an agreement with the third member was reached in 2012, but the judge ruled that those documents don’t justify TufAmerica’s copyright claim saying "Putting aside the issue of whether the 2012 agreement and 1999 agreements can be read together, the 2012 agreement conveys nothing more than the bare right to sue" and adding "It has long been the rule that [w]here ... an agreement transfers nothing more than the bare right to sue ... [it] cannot be the basis for standing under the Copyright Act".

Image from wikileaks

WikiLeaks has released  the "Investment Chapter" from the secret negotiations of the TPP (Trans-Pacific Partnership) agreement. The document adds to the previous WikiLeaks publications of the chapters for Intellectual Property Rights (November 2013) and the Environment (January 2014). Current TPP negotiation member states are the United States, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei. The TPP is the largest economic treaty in history, including countries that represent more than 40 per cent of the world´s GDP. Julian Assange, WikiLeaks editor said: "The TPP has developed in secret an unaccountable supranational court for multinationals to sue states. This system is a challenge to parliamentary and judicial sovereignty. Similar tribunals have already been shown to chill the adoption of sane environmental protection, public health and public transport policies." .

And another update on the IPKat - this time on the ITV v TVCatchup case ( [2015] EWCA Civ 204) and another referral to the CJEU by the  Court of Appeal (Lady Justice Arden and Lords Justice Kitchin and Underhill), dismissing TVC's appeal, and sending the case back to Luxembourg for a further preliminary ruling of the CJEU, this time on the "difficult question as to the scope of Article 9 of Directive 2001/29 and whether it permits the retention by a Member State of a provision such as s.73 of the CDPA which, in the particular circumstances set out in that section, affords a defence both to an allegation of infringement of copyright in a broadcast and of the copyright in any work included in the broadcast arising from the streaming of public service broadcasts to members of the public where that streaming takes place by wire (a) via the internet (but not including transmission by mobile devices via any mobile telephone network) and/or (b) to users situated in the original broadcast area. ...  I am satisfied that a ruling on this question is necessary for this court to give judgment" (Kitchin LJ). 

The Haiti earthquake aftermath  by Daniel Morel

And finally, following on from our recent blog on the award of $5.6 million in legal fees and costs against Perfect 10, photographer Daniel Morel has failed in an attempt to be awarded legal costs, despite being awarded $1.2 million by a jury in 2013 after his photos from the Haiti earthquake were widely distributed by news agencies Agence France-Presse (AFP)  and Getty after he put them on Twitter: On costs, US District Judge Alison Nathan said "Morel fought a fair fight and won," but added that "Academics and practitioners are... coming to terms with the implications of social media and traditional copyright law" and that the case  was a "close case on the merits" and involved "novel legal issues," so awarding attorneys' fees wouldn't be appropriate in this case. The Judge also noted that AFP and Getty made a $2 million settlement offer to Morel on the eve of trial, substantially more than the $1.2 million Morel could have received. The defendants made a "good-faith attempt at settlement," and that also disinclined the judge to award attorneys' fees. Morel's lawyer had billed him for $1.1 million, but , and noting "opaque and imprecise" billing methods, the Judge ordered that Barbara Hoffman could only receive a $164,580 payment according to Arstechnica.

Fifty Shades translated: moral (rights) concerns?

Original language Fifty Shades trilogy

After finishing reading the entire Fifty Shades trilogy while sunbathing (and getting sunburnt) at the seaside, this blogger was left wondering the same questions which have made many other readers of EL James's books in non-English speaking countries sleepless. 

One of them is: if a work has not been translated accurately, and the meaning is therefore altered, have the author's moral rights been infringed? This issue may be particularly relevant when the original text is meant as a pun or to have a meaning which can be understood just by those who possess some background information. The latter is the case of the titles of EL James' books.

As most of you will know, the hero of the Trilogy is absolutely realistic character Christian Grey, a clearly hot and fashionable 27-year-old self-made man who makes $100,000 per hour, and is also a skilled piano player and keen sailor. 

The title of the first book (Fifty Shades of Grey) is word-game between Christian's surname and his nickname, which is "Fifty Shades" (it is Ana Steele, the 22-year-old heroine, who calls him this way, after he has tried to send her away because he thinks it is too problematic to have a relationship with her. He indeed admits to being "fifty shades of f****d up". 

The titles of the other two books do not require much explanation. They are Fifty Shades Darker (as this is the book in which some of Christian's dark secrets are revealed) and Fifty Shades Freed (as this is the book in which Christian manages to overcome his traumas).

This blogger's fellow nationals who live in the lovely boot-shaped country in the Mediterranean Sea can buy the translated versions of EL James' works if they want to. However, the manner in which the titles of the books have been translated is rather perplexing. 

Italian-translated Fifty Shades trilogy

They are Cinquanta Sfumature di Grigio (this is a plain literal translation of the title of the first book, and "Grey" is intended to be the colour grey); Cinquanta Sfumature di Nero ( "fifty shades of black"), and Cinquanta Sfumature di Rosso ("fifty shades of red"). Does this translation make any sense? Probably not, if one knows what the actual meaning of the titles is and is aware that the books are not about a painter.

Although no criticisms have yet been made to how EL James's books have been translated into Italian, it may be interesting to discuss whether EL James could object to inaccurate translations of her works. 

The writer (real name: Erika Leonard) is British, so the Copyright Designs and Patents Act 1988 (CDPA 1988) is likely to apply.

Section 80 CDPA 1988 provides that, among the other things, the author of a literary work has the right not to have his work subjected to derogatory treatment. 

What EL James's books
are not about

The treatment of a literary work is defined as any addition to, deletion from or alteration or adaptation of the work, other than a translation. According to well-known commentary by Laddie, Prescott and Vitoria, "the exclusion of translations from the definition should be confined to true and accurate translations, as it is difficult to see why an author should not be able to object to a translation which murders his work or distorts its meaning" (4th edn, 2011, Vol I, 664, referring to 1987 French case of Zorine (Leonide) v Le Lucernaire, in which an author successfully prevented the public performance of his play in a translation and in a production which seriously distorted the original meaning). 

This said, the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author.

As is well-known, under UK law moral rights can be waived. However, the waiver may be conditional and may be made revocable, pursuant to Section 87(3) CDPA 1988. It would be interesting to see how EL James's publishing contracts were drafted and what kind of control the writer has retained over her books. What do you think? In any case, it is unlikely that control-freak Christian Grey would be pleased with all the changes which have contributed to rendering the meaning of the titles "lost in translation". 

Derivative works are important!
So: who do you think should play Christian Grey?

Because of its success, the Fifty Shades trilogy is indeed a great source of inspiration for all IP lovers. 

Trademark lawyers can speculate about all the possible Fifty Shades merchandising - the latest example of which being the Fifty Shades soundtrack which has just been released. 

Copyright enthusiasts may engage in endless discussions as to the legal implications of fan fiction (the Trilogy actually originated as a fan fiction based on the Twilight saga, as you can read here), moral rights and translations, and now also derivative works. The film version of Fifty Shades of Grey has already been announced, although the cast has not been released yet. Since derivative works are of paramount importance to copyright (and are relevant to the topic of moral rights, too), the 1709 Blog has carefully reviewed the actors rumoured to be in the run for the role as Christian Grey and decided to ask its readers: who do you think should play Christian Grey? You can cast your vote until midnight next Tuesday, 18 September and choose among sensitive and most likely to play Christian Ryan Gosling; blue-eyed White Collar star Matt Bomer, no-longer 27-year-old but still much admired Bruce Wayne/Christian Bale; successful and intriguing Shame's Michael Fassbender; and UK-born and forthcoming new Superman Henry Cavill.  The poll can be found at the top of the 1709 Blog's side bar.

Hunt to rethink UK’s new Communications Act, Cable to review Copyright, Magistrates get more powers

Embattled UK Culture Secretary Jeremy Hunt has said that he will scrap a proposed green paper which would have kicked off the drafting of a new Communications Act, which in itself is planned to reform the way the British broadcasting and internet sectors are regulated. Hunt says he will replace the green paper with a series of 'policy seminars' to feed into a white paper early next year, which will ultimately lead to new legislation. Amongst changes mooted is the reform of regulation of the UK’s radio industry which many terrestrial radio station owners believe are too strict, given they are now competing with so many new rivals on digital networks and the internet. The radio industry is also likely to use any review to call for an axing of the public performance royalty requirement on workplaces, offices, shops and bars which play out music radio on their premises. Currently such premises need both PRS and PPL licences for using songs and sound recordings even though the radio stations have already paid royalties on the music they air (a hot topic on this Blog!).


The UK's Secretary of State for Business, Innovation and Skills, Vince Cable, introduced the second reading of the Enterprise and Regulatory Reform Bill in the House of Commons on Monday 11 June. He announced that the Government may seek to amend the Enterprise and Regulatory Reform Bill to include provisions for use of orphan works, extended collective licensing and collecting society codes.


In addition, the Government have made a number of proposals in response to the Hargreaves review of intellectual property and growth and subsequent consultation. They are needed to “ensure that the copyright system is fit for purpose in the digital age. It has been decades since the intellectual property regime was overhauled, during which time the world has changed beyond recognition. It would be negligent to leave unchanged a system suited to the cassette recorder in an era of iPads and cloud-based music services. legislation will be required for three of those reforms: the introduction of a scheme to allow extended collective licensing; one to allow the use of orphan works; and, finally, a back-stop power to allow the Government to require a collecting society to implement a statutory code of conduct, should it fail to introduce or adhere to a suitable voluntary code". 


The Government’s proposals on extended collective licensing and on the use of orphan works are designed to make it simpler for users to use copyright works legitimately, while protecting the interests of rights holders. At the same time, introducing codes of conduct for collecting societies will provide valuable reassurance to the thousands of small businesses and other organisations, including creators, that deal with them. The Government are finalising their response to the consultation on those three proposals, and if we decide to proceed we will want to move swiftly. 


The Bill presents an opportunity to do so, and I shall announce a decision on the matter as soon as possible. The Bill will also extend copyright to 70 years for some currently restricted term works and gives the power to Her Majesty's Government to amend copyright and performance right exceptions by secondary legislation. The same Bill will repeal section 52 of the Copyright, Designs and Patents Act 1988 so as to provide full copyright protection for the period of the author’s life plus 70 years in respect of artistic works which are manufactured commercially. The Bill will additionally create a power to amend exceptions for copyright and rights in performances without affecting the existing criminal penalties regime. 


The IP Kat reported thatRoyal Assent has been given to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which introduces into England and Wales a wide range of reforms to the justice system -- some of which affects that complex web of laws we all know and love as intellectual property. Section 85 of the Act (not in force until a commencement order is made) removes the £5,000 upper limit on fines that can be handed down by the Magistrates' Court, thus giving magistrates more freedom to hand down fines that they consider to be proportionate to an offence. This change affects the penalties on summary conviction for many offences: counterfeiting; piracy; unauthorised receipt of broadcasts and the use of illicit decoders and copyright circumvention devices under the Copyright, Designs and Patents Act 1988. 


 CMU Daily  8^th June 2012 www.thecmuwebsite.com and http://the1709blog.blogspot.co.uk/2012/03/is-workplace-music-licencing-double.html and Hansard here http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm120611/debtext/120611-0002.htm#12061114000001 and the IP Kat here  http://ipkitten.blogspot.co.il/2012/06/monday-miscellany.html