The Queeen and that salute

UK readers of this blog will by now be aware of the Sun newspaper's dramatic scoop this morning (even if they are not habitual readers of that paper) concerning the Queen's activities as a six-year-old. No doubt if it is a slow news day elsewhere, readers around the world will also have been made aware of the story.
Buckingham Palace staff have been relatively and characteristically restrained in their response, saying that they are disappointed that the Sun has seen fit to intrude into the Royal family's private life. But others have not been so reticent in their comments. The BBC, for example, has speculated that the Palace may try to sue the Sun for infringement of copyright by releasing the film clip via their website. Stills taken from the film which appeared in the paper would not constitute fair dealing for the purposes of news reporting because photographs are excluded from this exception.

Apart from the political and public relations issues with the Queen starting a private civil case of this nature, there are also considerable legal problems with this course of action, should it be seriously considered.

Prior to the 1956 Copyright Act, films were not protected by copyright. The 1911 Act mentioned cinematograph films (in section 1(2)(d)) but only in the context of being one form of the performance of literary, dramatic or musical work, but they were not protectable per se. So films of a factual or documentary nature (such as the Royal film at issue here) were not protected at the time. This of course did not matter then because presumably the film was made for purely private consumption. The 1956 Act provided some retrospective protection by treating a film made before 1957 as a series of still images, each of which would be protected as a photograph. If there was a sound track then this would have separate protection as a sound recording. So once the 1956 Act had come into force in 1957, this piece of film would have gained protection as a series of photographs. This would seem to lead us to the next step which would ordinarily apply to copyright works, namely who was the author and when did he or she die?
However this is not the case for photographs created prior to 1 June 1957. Section 21 of the 1911 Act afforded special treatment to photographs, namely that the term of protection was fixed at 50 years from the making of the original negative, and then ceased. This applied equally to published and unpublished photographs.  What is more, although the film (reputedly shoot in 1933 or thereabouts) would still have been protected under section 21 when the 1956 Act came into force, the transitional provisions (in Schedule 7) of the later Act did not change the provisions for photographs made before 1 June 1957, and so copyright in the film would have expired around 1983, some time before the current 1988 Act appeared on the statute books.

Hang on though, what about Crown Copyright? The 1911 Act, although not using the exact term, introduced what we think of as Crown Copyright, which lasted for fifty years from the date of first publication of the individual work. Since this film (we presume) has never previously been published, that would mean that the copyright term has not yet commenced (unauthorised publications such as that by the Sun newspaper don't count). But could the film attract Crown Copyright? The wording of Section 18 of the 1911 Act says:

"Without prejudice to any rights or privileges of the Crown, where any work has, whether before or after the commencement of this Act, been prepared or published by or under the direction or control of His Majesty or any Government department, the copyright in the work shall, subject to any agreement with the author, belong to His Majesty, and in such case shall continue for a period of fifty years from the date of the first publication of the work".

It seems unlikely that the then King, George V, would have directed that this film be made, although it is possible. From the circumstances and individuals shown in the film, it seems probable that the person filming the goings-on was the King's second son, Prince George, who later became King George VI. Given the private nature of the film, and following the dicta of the court in the case of the Black Spider memos, this private activity would not constitute the duties or authority of the 'Crown'. Arguably had a decision on this sort of issue been required back in the middle of the last century when deference was rather more in vogue, things might have been handled differently (see the case of Prince Albert v Strange 1849 discussed by Jeremy here).

However I suspect that all this will be hypothetical, and that no such copyright case will ever be contemplated, let alone go forward to litigation. But if it did, the Sun would undoubtedly advance the little-developed defence of public interest under Section 171(3). The Sun is of course no stranger to the public interest defence in a copyright case, since it was argued in the case of Hyde Park Residence Ltd v Yelland and others [1999] which the Sun lost on appeal.

The CopyKat - easy on a Wednesday

It takes quite a number of hands to create a motion picture - camera operators, set designers, lighting directors, the director and the cinematographer to name but a few. Quick on the heels of the en banc decision by the majority of the 9th Circuit in the 'Innocence of the Muslims' case which held on further appeal that the contribution of an actor cannot be copyrightable because "defining a 'work' based upon 'some minimal level of creativity or originality' ... would be too broad and indeterminate to be useful",  the 2nd Circuit Court of Appeals has now ruled that individual contributions can't be recognized as works of authorship insofar as becoming independently copyrightable. The opinion from Circuit Judge Robert Sack on 'Heads Up' director Alex Merkin's claim says "We have never decided whether an individualʹs non‐de minimis creative contributions to a work in which copyright protection subsists, such as a film, fall within the subject matter of copyright, when the contributions are inseparable from the work and the individual is neither the sole nor a joint author of the work and is not a party to a work‐for‐hire arrangement," he writes. "We answer that question in the negative on the facts of the present case, finding that the Copyright Actʹs terms, structure, and history support the conclusion that Merkinʹs contributions to the film do not themselves constitute a 'work of authorship' amenable to copyright protection." More here.

The Supreme Court has declined to hear the case between Oracle v. Google, sending the long-running case back to a lower court where Google will have to argue that it made fair use of Oracle's copyrighted APIs. A ruling in favour of Oracle could give some technology firms "unprecedented and dangerous power" over developers by making it substantially more difficult for upstarts to create new software according to the Electronic Frontier Foundation says - unless of course fair use laws so turn out to protect the use of APIs.

Jacobus Rentmeester has failed in his claims of (i) copyright infringement; (ii) vicarious copyright infringement; (iii) contributory copyright infringement; and (iv) a breach of the Digital Millennium Copyright Act (DMCA) against Nike, which stem from his iconic picture
of basketball star Michael Jordan in his Olympic warm-ups in 1984 for an issue of Life Magazine. The case is Rentmeester  v Nike Inc., (No.3 : 15-cv-00113-MO). In his decision, District Judge Mosman granted Nike Inc.’s motion to dismiss Rentmeester’s claims - all of the details on the IPKat here.

Torrentfreak reports that a court in Nanterre in France has ruled that a magazine publisher violated French copyright law by running an article offering some top tips on how to access illegal sources of music and movie content online, including the 'low down' on the best torrent clients, and guidance that Google is the pirate's friends because "with some clever keywords and in a handful of clicks you will fill your hard drives with joy and laughter". The publisher of  computer magazine Téléchargement was fined €10,000. Torrentfreak say that under French law it’s forbidden to “knowingly encourage” the use of software that’s clearly meant to infringe copyrights, with a maximum prison sentence of three years and a €300,000 fine. (I am sure the FrenchKat an correct me if this is wrong!).  SCPP took action after the magazine's cover featured a pirate skull and advertised “the best software and websites to download for free.”

And finally, LA-based domain registrar Namecheap has been ordered to hand over the personal details of one of its customers, a person suspected of being involved in the ongoing attempts to keep Grooveshark - or at least a music service using that name - online. The action was brought by the Recording Industry Association of America (RIAA).