The CopyKat - its no laughing matter

The Japan Times says that architects whose design for the original 2020 Tokyo Olympics stadium was scrapped due to ballooning costs say they have rejected a request to give up the copyright to their plans in return for an overdue final payment. U.K. based Zaha Hadid Architects (ZHA) was chosen in an international contest to build the main Tokyo stadium, but the much-criticized futuristic design was dropped last year. A design by Japanese architect Kengo Kuma with a price tag of ¥149 billion ($1.27 billion), as opposed to an estimated ¥252 billion for Hadid’s plans, was chosen last month instead.

A copyright suit filed against rapper 50 Cent over his 2007 hit “I Get Money” has been dismissed. The plaintiff, Tyrone Simmons (aka Young Caliber) filed papers against 50 and the song’s producer William Stanberry in 2010, claiming they had infringed on his rights to use the instrumental for “I Get Money”, reported Billboard. Simmons also named Universal Music Group, Interscope Records and Aftermath Entertainment as defendants.
Officials at the US Court of Appeals for the Second Circuit ruled the case was “time-barred” adding Simmons had waited beyond the allowed three years to file the suit. More here.

Beastie Boys have resolved their lawsuit that accused the energy drinks company Monster Beverage Corp of using excerpts from five of the hip-hop group’s songs without permission in a video promoting a Canadian snowboarding competition. Capitol Records and Universal-Polygram International Publishing  settled a related lawsuit against Monster over the same video. The terms were not disclosed. Orders dismissing the cases were filed in two Manhattan federal courts but it appears Monster dropped its appeal of a $1.7 million jury verdict and an award of $667,849 in legal fees which resulted from the Beastie Boys’ lawsuit.

Readers will no doubt remember the epic battle between Supap Kirtsaeng, who built a business on eBay buying textbooks in Asia and reselling them to students in the US, and academic publisher John Wiley & Sons who took action against him. The case went all the way to the Supreme Court who ruled in favour of Kirtsaeng under the first sale doctrine, but he's going back to the Supreme Court to try and get his attorney's fees paid by Wiley, having been rejected by both the district court and the US Court of Appeals for the 2nd Circuit. Why? Well Kirtsaeng's petition says this: "Had Kirtsaeng prevailed in the Ninth or Eleventh Circuit, he would have obtained his reasonable attorneys’ fees. Had he prevailed in the Fifth or Seventh Circuits, he would have had a rebuttable presumption in favor of obtaining his attorneys’ fees. Had he prevailed in the Third, Fourth, or Sixth Circuits, Kirtsaeng very likely would have obtained his attorneys’ fees. Unluckily for Kirtsaeng, Wiley sued him in the Southern District of New York, and so when Kirtsaeng prevailed, he prevailed in the Second Circuit, where Second Circuit precedent meant Kirtsaeng could not obtain his attorneys’ fees."

And finally, and this is no laughing matter, we have a very interesting article from US attorney Dylan Price on .... wait for it ...... the potential for the infringement of copyright in jokes. As Dylan says, the case in question is a surprisingly rare foray into humour by the courts, but he tells is that last summer, comedian Robert Kaseberg filed a copyright infringement suit against Conan O’Brien, among others, alleging that O’Brien incorporated four jokes written by Kaseberg in the opening monologues of his television show “Conan.” According to the complaint,  Kaseberg published each of the jokes – all of which were based on then-current events and news stories – on his personal blog and Twitter feed on various dates between January and June, 2015, only to have O’Brien feature the same jokes in his monologues on the same respective dates. The case has yet to get to court by Dylan gives us a thorough review of the position of jokes under copyright in US law - in particular the decision Foxworthy v. Customer Tees, Inc., 879 F.Supp. 1200 (N.D. Ga. 1995) and its well worth a read on the Sheppard Mullin IP Law Blog here.

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.

The CopyKat - Pirate Bay founder sails into an unsafe Swedish harbour

Peter Sunde , co-founder of file-sharing website The Pirate Bay, has been arrested in southern Sweden and is now expected to serve an outstanding sentence for copyright violations after being on the run for nearly two years. Sunde had been wanted by Interpol since 2012 after being sentenced in Sweden to one year in prison and fined for breaching copyright laws. "We have been looking for him since 2012," said Carolina Ekeus, spokeswoman at the Swedish National Police Board. "He was given eight months in jail [the sentence was reduced on appeal although the fines increased] so he has to serve his sentence." Sunde had been living in Berlin, Germany, but returned to Sweden at times due to having family there.His final appeal against his sentence failed when his request for another appeal was denied by Sweden’s Supreme Court.

In the U.S. the Department of Justice is conducting a review of the consent decrees governing the nation’s largest music performance rights organisations, which many see as a critical development amid the ongoing debate over copyright reform. ASCAP last had its consent decree, which governs how the collection society collects and distributes royalties, updated in 2001, while BMI’s has not been updated since the 1990s - and boy oh boy, has technology moved on since then! Both songwriters and publishing companies have suggested that the consent decrees need serious revision, with some even arguing they should be abolished - and ASCAP have already publicised some suggested changes. But the push for updates grew louder earlier this year when a federal rate court gave an unfavorable ruling to ASCAP in its royalty rate dispute with Pandora. Review of the consent decrees will trigger a 60-day public comment period, which is sure to draw in stakeholders ranging from songwriters and publishing companies, to broadcasters and record labels.

Colin Kaepernick

The arm tattoos on San Francisco 49ers quarterback Colin Kaepernick will be duplicated on his digital avatar in the next “Madden” video game: According to ESPN, Kaepernick secured copyright waivers from the two tattoo artists who inked the biblical psalms and other religious references and which were copied into the biceps of the virtual Kaepernic and so, and as the NFL Players Association suggests, he has their permission to include their work in the game. More here.

Just as Shakespeare could not copyright iambic pentameter, an architect can't claim clapboard siding on colonial houses as his intellectual property, the 2nd Circuit Appeals Court has ruled, saying "Shakespeare wrote his sonnets; Brahms composed his Hungarian dances; and plaintiff designed his colonial houses"  ...... "Because we must preserve these forms for future artists, neither iambic pentameter, nor European folk motifs, nor clapboard siding are copyrightable." in a case brought by architect  James Zalewski and his firm Draftics Ltd. against construction companies T.P. Builders and Cillis Builders, the court held that the similarities Zalewski spied between his designs and the defendants' buildings "are features of all colonial homes, or houses generally" and not protected.

The Beastie Boys have won $1.7m (£1m) in a copyright violation case against the Monster Energy Co who produce the energy drink.of the same name. The case was for copyright infringement and implied endorsement. Monster had used a montage of Beastie Boys tracks in a promotional video relating to a snowboarding event the brand sponsored, which was posted shortly after the passing of Beastie Boy Adam Yauch, who had included a clause in his will prohibiting his name, image or music being used in advertising or marketing materials. Monster conceded that it had used the music without permission, but said that it had done so by mistake, after one of its marketeers mistakenly inferred from Z-Trip, the DJ the company had worked with on the party in the promotional video, that the music had been cleared. The beverage maker had insisted it should owe no more than $125,000 (£74,000). The Beastie Boys had sought $2m (£1.1m) - and got most if it. 

China is considering raising penalties for copyright infringement, according to a draft amendment. The draft amendment to the Copyright Law will see miscreants face fines of five times their illegal gains, or up to 250,000 yuan when the exact sum cannot be established. Previously the figures were three times and 100,000 yuan. The draft document was published by the Legislative Affairs Office of China's State Council to solicit public opinion, (which must be submitted before July 5th). 

The CopyKat - net neutral, not neutered - that's what we want

The Wall Street Journal reports that the chairman of the US Federal Communications Commission (FCC) plans to revise rules proposed last month that would have controversially let broadband providers accept payments from content companies to deliver their websites faster. Tom Wheeler is expected to issue new language making it clear the FCC will scrutinize all deals to assure that companies not participating in the so-called “paid prioritization” aren’t put at a competitive disadvantage. The Journal reported that the new draft also will seek comment on whether the arrangements should be banned altogether to preserve net neutrality and prevent 'slow and fast' lanes developing in traffic on the internet. A number of high profile 
musicians including REM's frontman Michael Stipe, Roger Waters and Pearl Jam's Eddie Vedder have put their names to an open letter written by the Future Of Music Coalition to Tom Wheeler, chairman at the FCC. The Future Of Music Coalition argues that the new proposals favour big corporations and "telecom giants", leaving "individual artists and creators" in the cold saying : "Your proposed path would open the door to widespread discrimination online. It would give internet service providers the green light to implement pay-for-priority schemes that would be disastrous for start-ups, non-profits and everyday internet users who cannot afford these unnecessary tolls. We urge you to scrap these proposed rules and instead restore the principle of online non-discrimination by reclassifying broadband as a telecommunications service".

Toy maker GoldieBlox's has settled it's dispute with the Beastie Boys, which came to public attention when the toy company used one of the band's songs, Girls, for an advert. The company have agreed to make a $1 million charitable donation according to legal documents. Whilst the two remaining band members said they respected the toymaker's mission to make toys for young girls that break down gender stereotypes, they and the late Adam Yauch had long held a resolve never to licence their music for advertising. GoldieBlox will donate 1% of it's gross annual revenues to a charity of the band's choice until the amount paid reaches $1 million. The charity chosen would focus on supporting "science, technology, engineering and/or mathematics education for girls".

Lawyers acting for MegaUpload have asked the U.S. federal court in Virginia to freeze two civil lawsuits filed against the former digital firm last month by the movie and music industries respectively, arguing that civil action should not occur before any criminal hearings which are planned (although these have been delayed).

And more litigation news: a copyright infringement case involving more than 1,000 videos allegedly found on popular Japanese video-hosting site FC2.com gets under way before a jury next week at federal court in Los Angeles. FC2, one of the top ten website in Japan, is being sued by Japanese-language porn company Dreamroom Productions, who initially alleged that FC2 had encouraged illegal uploading and downloading of its copyrighted works by compensating uploading members. Last week, Dreamroom's counsel withdrew the claim for inducement of copyright infringement, leaving only claims of direct copyright infringement, contributory copyright infringement and vicarious copyright infringement. More on porn litigation here - the story of how Malibu Media - owners of the X.art.com erotic website  - has filed thirteen hundred lawsuits in the US i the last year - accounting for a third of all U.S. copyright litigation during that time, according to the federal-litigation database Pacer. Trolling you might say (and their name has cropped up before on this blog), but one federal judge disagrees: : “Malibu [Media] is not what has been referred to … as a ‘copyright troll,’ ” Michael Baylson, a U.S. district judge, wrote. “Rather, Malibu is an actual producer of adult films and owns valid copyrights.”

And whilst we are on the topic of alleged trolling ..... users of the Popcorn Time app and derivatives like  Cuevana Storm, which brought easy downloading to the masses earlier this year, "hiding its mechanics away under a sleek interface" that led some users to believe "that regular and 'safe' streaming technology was under the hood" have had their illusion shattered - as app users have begun to receive letters "from copyright trolls" - here in the guise of the the Waldorf Frommer law firm in Germany according to Torrent Freak. Recipients of the letters claim they have never installed a BitTorrent client on their machines. Instead they had used only streaming services. TF explain that this "illustrates why it is extremely important for people to have at least a cursory understanding of how software on their machine operates. Streaming video server-to-client or server-to-web browser is either legal or at the least non-detectable in most Western countries. Uploading content to others without permission is generally illegal."

China is moving towards setting up a specialised Chinese IP court. According to the South China Morning Post, the Court’s first setting is likely to be set up in Guangdong Province, but the precise location has not been decided.  The cities of Guangzhou, Shenzhen and Zhuhai have all indicated that they interested in hosting the Court and Guangdong has many courts which are qualified to hear IP matters, and these courts already hear a significant proportion of Chinese IP civil lawsuits. With the number of intellectual property cases being heard in China increasing year on year, it seems the proposals for the new Court are being welcomed. And  a Beijing court has jailed seven executives of the Chinese movie downloading website Siluhd.com.hou Zhiquan, CEO of the movie downloading website, was sentenced five years imprisonment for copyright infringement, and a fine of 1 million yuan (US$160,000). Zhou's other six co-workers were received sentenced of one to three years custody. Siluhd.com had infringed a total 22,296 works, including 18,772 films and television dramas, 3,316 musical albums and 208 game software.  Up to 10,000 subscribing members made illegal downloads every day.

Creative Commons has appointed a new chief executive. Ryan Merkley, 36, who was recently the chief operating officer at the Mozilla Foundation, the organization that supports the open-source Firefox browser, and has also worked with the governments of Toronto and Vancouver. He succeeds Catherine Casserly, who stepped down last year after becoming the organisation’s first full-time chief executive in 2011.

An fascinating case between two music publishers, Cayman Music and Blue Mountain Music has begun in London. At the heart of the case is the ownership of 13 songs, widely believed to have been written by Bob Marley in the early 1970s, but which at the time were credited to a number of his friends. In the case of the iconic ‘No Woman, No Cry’ the credit went to Vincent Ford - and now Cayman Music is attempting to retrieve the rights to the songs. Marley was exclusively signed to Caymen as a songwriter - and allegedly denied ownership and being the songwriter - to avoid transferring ownership to Caymen.  

The CopyCat - as Blockbuster sinks, the Pirates set sail again

The games world is up in arms after what appeared to be concerted effort by content owners to target fan generated postings on YouTube, using YouTube's Content ID takedown system. Player-created videos on YouTube have been subject to copyright crackdowns in the past, but gamers say not on this scale - with Nintendo (perhaps unfairly) taking the brunt of the initial blame, with reports of thousands of videos being flagged over the last few days for alleged copyright violations. The videos - which range from YouTubers playing the games or providing commentary, or simply showing a trailer and talking about the game, are often monetized - and some gamers earn a living from recording game videos. YouTube responded to the furore by saying "We recently enabled Content ID scanning on channels identified as affiliates of MCNs. This has resulted in new copyright claims for some users, based on policies set by the relevant content owners. As ever, channel owners can easily dispute Content ID claims if they believe those claims are invalid."

It seems that the major record labels have decided that the new EU wide term extension for sound recordings does not apply to unreleased material - well not with 'use it or lose it' provisions out and about anyway: Rather than full scale releases, some of the labels have decided on limited releases only: A new Sony collection of unreleased Bob Dylan recordings — concerts, radio and television appearances, and studio outtakes, all from 1963 — has just appeared in a limited edition of 100 copies, on six vinyl LPs - “The 50th Anniversary Collection: 1963”. Universal and Apple are being a lot more generous to fans:  Universal plans to release, on iTunes only, “The Beatles Bootleg Recordings 1963,” a compilation of 59 recordings, among them a handful of studio outtakes; a few dozen BBC performances, drawn from the same well as the recent “On Air” BBC two-CD set; and informal demonstration recordings of two songs the group gave to other artists — Paul McCartney and John Lennon’s acoustic guitar duet version of “Bad to Me” and a Lennon piano demo of “I’m in Love.” Some interesting comment on the labels' thinking can be found on the NY Times website here and on the Independent here.

The Tennessean (fast becoming a favoured read!) reports that pop star Ariana Grande, along with her publishing company and record label, are facing copyright infringement lawsuit related to her hit song “The Way.” The suit claims Grande and producer/writer/co-performer Mac Miller copied from the 1972 disco song “Troglodyte” when they recorded “The Way,” which became a major hit earlier this year and iTunes no 1 single, selling more than 2 million copies. The federal suit from  Minder Music claims Grande and Miller duplicated the vocal beginning to the Jimmy Castor Bunch’s “Troglodyte” when they recorded “The Way.” “Troglodyte" begins with Jimmy Castor speaking the phrase, “What we’re gonna do right here is go back, way back, back into time.”  “The Way” begins with the spoken phrase “What we gotta do right here is go back, back into time.”  The attorney in the claim is Richard Busch of King & Ballow who has previously successfully brought claims against samplers - in particular of George Clinton and Funkadelic and  on behalf of Bridgeport Music.

Pirates Ahoy! Having been registered in Greenland, Iceland and most recently in the Caribbean island of Sint Maarten, it seems the Pirate Bay's domain name set sail yet again, this time to Ascension Island, located somewhere in middle of the South Atlantic Ocean, and hopefully (well for the Pirates at least) well out of the reach of those pesky rights organisations that represent the global sound recording and music publishing industries - and their artists. Oh, but that was not enough - less than a week later - anchors away - they are in Peru! a TPB spokesperson told Torrentfreak: "They should wait for our new PirateBrowser, then domains will be irrelevant. Once that is available then all links and sites will be accessible through a perfectly legal piece of browser software and the rest of it will be P2P, with no central point to attack via the legal system. By their actions [the entertainment industry] finally brought on the next generation of decentralised services".

CMU Daily reports that the  dispute between the Beastie Boys and American toy company GoldieBlox over the latter's use of a rework the former's track 'Girls' in an advert isn't going away, even though the toy maker swapped in an alternative piece of music on the ad and issued a positive statement professing admiration for the band. Whilst the surviving members of the Beastie Boys Michael Diamond and Adam Horovitz issued an open letter said they respected GoldieBlox's mission to make toys for young girls that break down gender stereotypes, they added, they had previously made a conscious decision to not license their tracks for use in advertising, so much so that the third Beastie Boy, the late Adam Yauch, stated that desire in his will. 

Those Girls

Before the Beastie Boys' open letter, GoldieBlox had issued a pre-emptive legal strike anticipating the band’s claim seeking court confirmation that, because their version of 'Girls' mocked the sexist lyrics of the original, that constituted parody, and therefore the toy firm was allowed to use the track without permission under the doctrine of “fair use”.  Interestingly it seems GoldieBlox had posted similar adverts online before, including music by Daft Punk and Avicii, presumed to be without the artist or their record label’s or music publisher’s permission. Reports now say that GoldieBlox management added a caveat to an offer to withdraw their legal action asking the Beastie Boys to commit to never launch their own copyright litigation against the company.  It seems the band declined to make such a commitment, and in return asked GoldieBlox to issue a more apologetic statement over its use of 'Girls' without permission, and to make a suitable donation to charity. With little progress having since been made, the Beastie Boys have now filed a countersuit that formally accuses GoldieBlox of copyright infringement as well as unfair competition and misappropriation of publicity rights - more about this from Miri on the IPKat here. 

DVD and games rental firm Blockbuster UK is set to close. Prevously a favoured destination for hungover students set for a day of horror flicks, the entire American Pie series in a day and dodgy romcoms, The chain first went into administration back in January and  initially it seemed like the company might survive but administrators Moorfields Corporate Recovery have confirmed that no buyer could be found, and that the remaining 91 Blockbuster shops in the UK would close this weekend, resulting in 808 further job losses.

American Music Theatre, which as the CopyKat had previously reported is being sued for copyright infringement over the unapproved use of material from The Producers, Billy Elliot, Wicked, Jersey Boys, the Lion King and Disney's Mary Poppins in its "Broadway Now & Forever" production, has filed it's defence saying that it has blanket license agreements with the American Society of Composers Authors and Publishers and Broadcast Music Inc. to perform "all allegedly copyrighted works at issue." The theatre also denies it will be violating copyright when it opens "Music of the Night: The Songs of Andrew Lloyd Webber" for a six-month run from April 2014. The Theatre now faces an action, in the Philadelphia federal court, to stop "Broadway Now & Forever" and prevent the upcoming Andrew Lloyd Webber focussed show featuring Cats,Les Miserables and Phantom of the Opera from opening. The Pennsylvanian1,600 capacity theatre on Lincoln Highway East has now said it's productions fall under the fair use doctrine saying "… use of the allegedly copyrighted works was transformative in nature, only an insubstantial portion of each alleged work was used in relation to each work as a whole ...". Among it's other defences, American Music Theatre also claims the plaintiffs were misusing their copyrights and are asking a judge to dismiss the case and have the plaintiffs pay it's legal costs. American Music Theatre has until December 20th to address the initial suit by Disney and other plaintiffs. The Theatre has also now said that specifically for the use of Spider-Man copyrights,  the Theatre has a license agreement to use Spider-Man and that  Stan Lee Media Inc. and not Disney or its Marvel division holds the Spider-Man copyright. But that's another battle.

The CopyKat - Fridays fun furballs

The European Parliament’s Legal Affairs Committee has voted unanimously to adopt the Collective Rights Management Directive which would allow online providers to obtain copyright licenses to stream music across E.U. borders. Currently, companies wanting to offer such services must obtain copyright licenses from 28 different member states. The proposed law would allow for a small number of authors’ collective management organizations to operate across EU national borders. “Today’s vote demonstrates that, contrary to some misconceptions, all political groups acknowledge that copyright is compatible with the digital age and can easily adapt to it,” said Marielle Gallo, the French member of Parliament who crafted the law. The full Parliament will vote on the proposed rules in early 2014.

An update on the Beastie Boys spat with toy company GoldieBlox which featured in our last CopyKat update.. In a letter back to the band published on the company's website, GoldieBlox founder Debbie Sterling writes: "We don't want to fight with you. We love you and we are actually huge fans ... Our hearts sank last week when your lawyers called us with threats that we took very seriously. As a small company, we had no choice but to stand up for ourselves. We did so sincerely hoping we could come to a peaceful settlement with you". She continues saying that GoldieBlox still believed that it was within its rights to use the song under Fair Use, but having not been aware of Yauch's wishes previously, would remove it from the advert. "In addition", she said, "we are ready to stop the lawsuit as long as this means we will no longer be under threat from your legal team". Miri Frankel has posted a more detailed look at Fair Use - in this case parody - over on the IPKat website and it's well worth a read http://ipkitten.blogspot.co.uk/2013/11/the-beastie-boys-claim-copyright.html. My own take remains it's an advert - albeit a clever advert which did spark a public debate - and which does indeed parody the original song - but a parody for commercial gain. 

And an update on Robin Thicke's problems - Marvin Gaye's eldest son, Marvin Gaye III, has launched a new lawsuit against Robin Thicke, similar to, but separate from the one launched by his siblings Frankie Christian and Nona which alleged similarities between Thicke's controversial summer hit 'Blurred Lines'  and Gaye's 'Got To Give It Up' - and that Thicke's track, 'Love After War' takes elements of Gaye's 'After The Dance'. According to The Hollywood Reporter, Gaye III's new lawsuit says: "Thicke's 'Blurred Lines' is copied from Marvin Gaye's 'Got To Give It Up', Thicke's 'Love After War' is copied from Gaye's 'After The Dance', Thicke's 'Make U Love Me' is copied from Gaye's 'I Want You'), and Thicke's 'Million Dollar Baby' is copied from Gaye's 'Trouble Man'.

The Guardian reports that a freelance designer who says his work was stolen by an advertising agency working on the Hollywood remake of cult thriller Oldboy has written an open letter to director Spike Lee asking him to intervene. Juan Luis Garcia says posters based on his designs are being used to promote the film, which is released this weekend in the US, despite the fact that he has not been paid for his work or agreed to their use. He says the unnamed agency involved made an "insultingly low offer" when it decided to use his designs, and continued to use them when he declined their offer.

A Plymouth licensee has been convicted of the illegal use of Sky TV after his original acquittal by Magistrates was overturned by the High Court. The Morning Advertiser reports that Stanley Ashton did not have a commercial licence for Sky TV for his pub but showed live football matches from his domestic subscription. The Federation Against Copyright Theft (FACT) appealed the decision and when the case was returned to Plymouth Magistrates Court where Ashton received a two year conditional discharge and ordered to pay £850 costs.

In the deserts of Sudan and the Gardens of Japan, From MIlan, to Yucatan, the CopKat is in the can

A split panel of the Federal 9th Circuit Appeals Court has confirmed that DC Comics and its parent company Warner Brothers own the copyrights to Superman, with the court noting that it was ending "another chapter in the long-running saga regarding the ownership of copyrights in Superman - a story almost as old as the Man of Steel himself".  Heirs of Superman co-creator Joseph Shuster filed a copyright termination in 2003 in a move to reclaim rights Shuster had sold to DC Comics in 1938. U.S. District Judge Otis Wright in Los Angeles ruled for DC, finding that a 1992 agreement signed by Shuster's siblings, from which they received lifetime pensions from DC, had revoked a previous 1938 contract. Dissenting panel member Judge Sidney Thomas said that the record was "not sufficient to establish that Joe Shuster's siblings had the authority in 1992 to revoke and supersede his 1938 copyright grant" saying that copyright law in 1992 was such that "no one except the surviving spouse or child could exercise the right of termination"  and that it was not until 1998, "six years after the parties executed the agreement at the center of this appeal," that "Congress extended the termination right to authors' executors, administrators, personal representatives, and trustees".

More on DMCA takedown notices being used to stifle free speech.  Gordon Klingenschmitt, a former Navy chaplain running for office in Colorado had already used the YouTube's takedown system to kill the account of Right Wing Watch, a group that was critical of Klingenschmitt and his politics. TechDirt report that earlier this week, YouTube restored Right Wing Watch's account, after "realizing that he [Klingenschmitt] was clearly using their copyright takedown system to stifle criticism, not for any legitimate copyright purpose." Klingenschmitt then immediately filed yet another "bogus" copyright claim with YouTube, getting their account taken offline again. Moves are afoot to ask YouTube to revitalise it's systems to prevent serial takedown abusers taking accounts offline - and let's not forget those s512(f) actions under the DMCA for false takedowns which can result in damages and legal costs for the injured and non-infringing party - and we blogged about these here - certainly something for Right Wing Watch to consider if Mr Klingenschmitt is indeed materially misrepresenting infringement. Our earlier blog on copyright and free speech here.

The Beastie Boys are seemingly less than impressed with a 'parody' produced by a new toy company called Goldieblox - a video of three girls playing with a Rube Goldberg-type invention and singing alternative lyrics to the Beastie Boys song "Girls." Since the video went up online it has been viewed more than seven million times. Having received a letter alleging copyright infringement, Goldieblox are now seeking declaratory relief in the federal court in the United States District Court in the Northern District of California. It seems lawyers for the Beastie Boys claim that the GoldieBlox Girls parody video is a copyright infringement, is not a fair use and that GoldieBlox's unauthorised use of the Beastie Boys intellectual property is a 'big problem' that has a 'very significant impact.' It might be one to watch as clearly the 'parody' is to promote a commercial concern and sell toys - although it may well have also stoked up a debate on young girl's interest in science and scientific careers. In the original song, the Beasties sang: "Girls -- to do the dishes/ Girls -- to clean up my room/ Girls -- to do the laundry/ Girls -- and in the bathroom/ Girls, that's all I really want is girls." The video replaces those lyrics with: "Girls -- to build the spaceship/ Girls -- to code the new app/ Girls -- to grow up knowing/ That they can engineer that/ Girls. That's all we really need is girls." Despite the fact the video really is a very clever advert for 'toys for future engineers', GoldieBox say that they created the video with specific goals to make fun of the Beastie Boys song, and to further the company's goal to break down gender stereotypes and to encourage young girls to engage in activities that challenge their intellect, particularly in the fields of science, technology, engineering and math. The GoldieBlox Girls Parody Video has gone viral on the Internet and has been recognized by the press and the public as a parody and criticism of the original song." Responding to that claim, Beastie Boys have now said that they simply contacted the company to discuss the matter, because while they agree with the sentiment of the commercial, they do not allow their music to be used in any adverts ever. In fact Adam Yauch who died recently felt so strongly about this that he had it written into his will.  In an open letter to the company, published in the New York Times, surviving members Mike D and Adam Horowitz said: "Like many of the millions of people who have seen your toy commercial 'GoldieBlox, Rube Goldberg & the Beastie Boys', we were very impressed by the creativity and the message behind your ad. We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering". However, they continued: "As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song 'Girls' had been used in your ad without our permission, YOU sued US".

Two of the world's biggest news agencies, Getty Images and Agence France-Presse, have been ordered to to pay $1.2 million to a freelance photojournalist for their unauthorized use of photographs posted to Twitter. The jury found that AFP and  Getty wilfully violated the US Copyright Act when they commercially used photos Daniel Morel took in his native Haiti after the 2010 earthquake that killed more than 250,000 people and which had been made available to the public through social media. U.S. District Judge Alison Nathan had already found the two agencies liable for infringement and the trial was to set the level of damages - the jury set the maximum allowable despite the fact AFP had argued the the editor who took the pictures made an innocent mistake, and had thought the pictures were available for reuse. AFP argued that the Twitter user who posted Morel's photos without attribution bore responsibility for the error. 

Hit Me With Your Rhythm Stick is by Ian Drury & The Blockheads

A case of bad timing for the Beastie Boys

Just as the sad death of the Beastie Boys' Adam 'MCA' Yauch from cancer was announced, aged just 47, Tuf America, Inc announced a new lawsuit against the band and  co-defendants Universal Music, Brooklyn Dust Music and Capitol Records. Tuf America  administers the rights to the recordings of Trouble Funk's catalogue, including the group's 1982 funk classics, "Drop the Bomb" and "Say What" and the federal lawsuit relates to two songs on the Beastie Boys' debut album, 'Licensed To Ill', and two more on the follow-up, 'Paul's Boutique'. The company claims that the group illegally sampled the two Trouble Funk songs. The 20 years delay in pursuing the litigation is partly linked to the fact Tuf America only gained control of the copyrights in Trouble Funk's catalogue in 1999, the additional ten year wait seemingly being down to the fact it's only recently that the label noticed the alleged infringements.

The law suit doesn't surprise Kembrew McLeod, associate professor of communication studies at the University of Iowa, and co-author, with economist and researcher Peter DiCola, of the book "Creative License: The Law and Culture of Digital Sampling" who says  "'Paul’s Boutique' and other albums of that era are like ticking legal time bombs" adding "For instance, in 2005, Run DMC was sued by the Knack for using 'My Sharona' for its song 'It’s Tricky.' And they were sued 20 years after the fact." This reality is compounded by the fact that each time "Paul's Boutique" is issued in a new format, or repackaged, the statute of limitations on filing an infraction claim starts anew at year zero. In his book McLeod and DiCola analyse the samples in both "Paul's Boutique" and Public Enemy's "Fear of a Black Planet," two classics of hip-hop's sample era, and estimated the cost of legally producing them and licensing the samples: With all samples intact, McLeod explains "Based on the number of sales, both albums would have lost money per unit, and 'Paul’s Boutique' would have lost somewhere in the neighbourhood of $20 million -- and we were being extremely conservative with our estimates."

A separate article again asks if the Beastie Boys’ seminal works could ever have been produced under the current sampling and clearance regimes in the USA – and asks whether the law should change?  

http://paidcontent.org/2012/05/06/rhyming-stealing-lets-honor-late-beastie-with-better-copyright-laws/

The Beastie Boys were triumphant in one sampling claim when they defeated a challenge from composer and flautist James Newton who claimed that despite a valid licence for the sample of the sound recording of his work, the band had also sampled his composition : Newton v Diamond 349 F.3d 591 (9^th Cir 2003). 

More here: allhiphop.com/2012/05/07/beastie-boys-hit-with-lawsuit-over-track-on-pauls-boutique/#wpcom-carousel-120911 and http://latimesblogs.latimes.com/music_blog/2012/05/beastie-boys-trouble-funk-lawsuit.html