Posing some difficult questions: the COPYKAT investigates

Jumpman blocks photographer's shot at copyright claim

In January 2015 the CopyKat covered the case brought by photographer Jacobus Rentmeester against sporting apparel giant Nike, concerning Rentmeester's 1984 photograph of world-famous basketball star Michael “Air” Jordan, who was warming up for the Los Angeles summer Olympic games. Rentmeester had Jordan use a long horizontal jump technique known in ballet as a 'grand jete.’ It’s worth noting here that the jump itself is unusual for basketball and not something Jordan would have done in normal practice - so in effect a pose.

Rentmeester allowed Nike to use the image for a temporary advertising campaign, but In 2014, Rentmeester accused Nike of copyright infringement. His lawsuit alleged that the sports giant copied his carefully choreographed picture using Jordan's left hand to slam dunk the ball. The “jumpman” silhouette logo is known the world over, and is used to promote Nike’s Air Jordan brand of basketball shoes and sportswear. According to Reuters, The Jordan brand now generates $3.1 billion of annual revenue for Oregon, USA headquartered Nike.

Rentmeester’s case was dismissed in June 2015 (this was covered by the CopyKat here), with the judge finding that the only similarity  between Rentmeester’s photograph and Nike’s “Jumpman” logo was that of Jordan’s pose.  The poses were not substantially similar and the District Court of Oregon dismissed Rentmeester’s claims. You can read a very good analysis of this decision over at the IPKat here.

Rentmeester subsequently appealed. However, in a In a 2-1 decision, the 9th U.S. Circuit Court of Appeals has upheld the original decision. In his judgement, Circuit Judge Paul Watford wrote that while both images “capture Michael Jordan in a leaping pose inspired by ballet’s grand jeté,” they were not substantially similar because of differences in setting, lighting and other elements. He added that “all the Nike photographer did [was] build freely upon the ideas and information conveyed by [Rentmeester’s earlier] work.”

The case is Rentmeester v Nike Inc, 9th U.S. Circuit Court of Appeals, No. 15-35509 and also see an updateon the IP Kat here)

Playboy Bunnies vs Boing Boing

Playboy has failed in its attempts to claim that a hyperlink to copyright-infringing content at Imgur and YouTube is itself illegal.  

In November of last year, Playboy filed a copyright infringement lawsuit against Happy Mutants, the parent company of website Boing Boing. Boing Boing calls itself “a Directory of Mostly Wonderful Things,” and in 2016, provided a link to a separate gallery of "Every Playboy Playmate Centerfold Ever," hosted on imgur.

The subject matter of the suit included 477 photographs of models, known as "centerfolds." Playboy owns these centerfold images and argued that by linking to online versions of these photos, Boing Boing used, distributed, and exploited said images in websites without Playboy's authorisation or consent. Playboy further accused Boing Boing of vicarious

In a Court order, US District Judge Fernando Olguin noted the court was “skeptical that plaintiff has sufficiently alleged facts to support either its inducement or material contribution theories of copyright infringement.” Olguin allowed Playboy to amend their claims and resubmit, but Playboy failed to do so before the 26 February deadline.

In their press release, Boing Boing thanked their “brilliant attorneys” at the Electronic Frontier Foundation for “standing up to "Playboy's misguided and imaginy claims." EFF explained it was “hard to understand why Playboy brought this case in the first place, turning its legal firepower on a small news and commentary website that hadn’t uploaded or hosted any infringing content.”

Responding to a journalist’s story on the case, Playboy provided a statement which continued the assertion that Boing Boing "is supporting and contributing to privacy and content creators should not tolerate it.” And although they are not filing an amended complaint at this time, Playboy “will continue to vigorously enforce our intellectual property rights against infringement.”   Image by Robobobobo and used under a Creative Commons Licence.

EU Recommendations formalise earlier guidelines on IPR enforcement

The European Commission has released a new statement, entitled “A Europe that protects: Commission reinforces EU response to illegal content online.”

The Recommendation gives formal effect to the political guidelines set out in the Communication on tackling illegal content online, first presented by the Commission in September 2017.

In that earlier Communication, the Commission promised to monitor progress in tackling illegal content, and assess whether additional measures are needed to ensure the swift and proactive detection and removal of such content. The Commission focuses on detection and removal of illegal content through both reactive (so called 'notice and action') and proactive measures.

These Recommendations are aimed at European Member States, as well as companies, and are to be used as initial proactive steps before the Commission determines whether new legislation should be proposed. The Stronger procedures suggested include better safeguards and full respect of fundamental rights, freedom of expression and data protection rules, as well as utilisation of  more efficient tools and proactive technologies.

Interestingly, the Commission suggests that shared responsibility could particularly benefit smaller platforms with more limited resources and expertise in halting infringement. In particular, the Commission recommends that industry should, through voluntary arrangements, cooperate and share experiences, best practices and technological solutions, including tools allowing for automatic detection.

In terms of next steps, The Commission will continue analysing the progress made and will launch a public consultation later this spring.

You cannot copyright the dolphins!

The depiction of two dolphins crossing underwater is an "idea that is first found in nature," and therefore cannot be the subject of copyright protection, as per the U.S. Court of Appeals, Ninth Circuit decision in the case of Folkens v Wyland.

Peter A. Folkens is wildlife artist who, nearly 40 years ago, drew an  illustration of two dolphins crossing each other underwater. The pen and ink artwork depicts one dolphin swimming vertically and the other swimming horizontally.

Robert Wyland painted “Life in the Living Sea,” an underwater scene of two dolphins crossing underwater. Folkens' drawing, was adapted for use on an inexpensive Greenpeace charity postcard. On the other hand, Wyland sells art and merchandise through his Wyland Worldwide business, reported to make $100 million annually (LA Weekly).

Although the artworks are different in many respects - colour, lighting, and medium - there are certain similarities, with the primary similarity (similar to the Rentmeester v Nike case we mentioned above) being the "pose."

A trial judge first reviewed the works to determine if they were "substantially similar," and decided that this pose was a natural position incapable of protection under copyright law. Folkens appealed, but the Ninth Circuit has upheld the original decision.

In its judgement, the Ninth Circuit explained that despite this similar positioning of the dolphins, a pose is not ordinarily copyrightable unless combined with something else. In particular, “a collection of unprotectable elements - pose, attitude, gesture, muscle structure, facial expression, coat, and texture - may earn “thin copyright” protection that extends to situations where many parts of the work are present in another work.”

Folkens attempted to argue that the dolphins he drew are not exhibiting natural behaviour, because photos upon which he based his illustration on were of dolphins posed by professional animal trainers in an enclosed environment. However, Wyland’s counter-argument included an assertion that animal trainers can pose animals to capture positions that naturally occur in the wild.

This “idea” of crossing dolphins was first expressed in nature, and was therefore held by the court to be “within the common heritage of humankind.” Accordingly, no artist may use copyright law to prevent others from depicting this ecological idea. Is this a case of “scene a faire” gone too far? Does it demonstrate that any “natural” pose by anyone (or any animal) is incapable of copyright protection? For the benefit of further analysis, this CopyKat would have preferred the matter go to trial, rather than conclude by way of summary judgment.  

Project Gutenberg: the German edition - laudable, but still infringing!

Project Gutenberg is an American website which offers 56,000 free books, many of which have had their copyright expired in the United States. Such classics available include Pride and Prejudice, Heart of Darkness, Frankenstein, A Tale of Two Cities, Moby Dick, and Jane Eyre. The website is run on servers at the University of North Carolina at Chapel Hill, and is classified as a non-profit charity organisation under American law. The website is a volunteer effort which relies mostly on donations from the public, "to digitise and archive cultural works to encourage the creation and distribution of eBooks."

Despite the noble cause of making literature available at no or low cost to the masses, a recent ruling (https://cand.pglaf.org/germany/gutenberg-lawsuit-judgement-EN.pdf ) against Project Gutenberg has resulted in the website being geo-blocked for all visitors attempting to access the site from Germany. The claimants in the case are the copyright owners of 18 German language books, written by three authors, each of whom died in the 1950s. In Germany, the term of copyright protection for literary works is "life plus 70 years," which differs from the US approach for works published before 1978 where the works would be in the public domain. They are not in Germany.

The copyright holders of these works notified Project Gutenberg of their alleged infringement back in 2015. In early February 2018, the District Court of Frankfurt am Main approved the claimant's "cease and desist" request to remove and block access to the 18 works in question. The claimants also requested administrative fines, damages, and information in respect of how many times each work was accessed from the website.

The Court reasoned that it was worth taking into account the fact that the works in dispute are in the public domain in the United States. This however "does not justify the public access provided in Germany, without regard for the fact that the works are still protected by copyright in Germany." The judgement also cited Project Gutenberg's own T&Cs in its decision, noting that the website considers its mission to be "making copies of literary works available to everyone, everywhere." While this broad statement may seem innocuous and idealistic, the court used this to support its findings that Project Gutenberg could not reasonably limit itself as an American-only website.

A key point in this matter is the question of jurisdiction. While Project Gutenberg is based in the USA, the claimants successfully argued that as the works were in German and parts of the website itself had been translated into German, the website was indeed "targeted at Germans." Furthermore, even if the website had not been intended for German audiences, that the infringement occured in Germany is sufficient grounds to bring the claim in German court.

While Project Gutenberg was only required to remove the 18 works listed in the lawsuit, the organisation has blocked its entire website in Germany to protect itself from any further potential lawsuits on similar grounds (see the Q&A here https://cand.pglaf.org/germany/index.html )

Project Gutenberg is planning to appeal the decision. There is more on the IPKat here at http://ipkitten.blogspot.co.uk/2018/03/gutenbergorg-loses-to-german-publisher.html

This CopyKat by Kelsey Farish

The Full Montis

At the end of last month the CJEU heard an interesting case which has been little reported to date. The case is C-169/15 Montis Design and was referred to the CJEU by the Benelux Gerechtshof.

Like all good referrals, the background to the case is complicated, as is the law which the CJEU has been asked to consider. I am grateful to the EU Law Radar website for their analysis of the case.

There are a number of 'pivot' points in the case, not least of which is the relationship between copyright and design right. For that reason, this article is rather more about the world of designs rights than is normally the case with the 1709 blog. But there is a stripe of copyright running through the centre.

The Montis Design case concerns a dining chair named Chaplin which was created by the Dutch designer Gerard van den Berg some time in the late 1980s, and the design was registered using the system set up by the Uniform Benelux Law on Designs and Models. Mr van den Berg then sold his rights to a Dutch furniture manufacturer, Montis Design, who made chairs to the Van den Berg design. However they failed to renew the registration when it became due in 1993, thus apparently leaving it open to other companies to manufacture chairs to the van den Berg design, which duly happened.

Montis then sued for infringement and the matter went as far as the Dutch Supreme Court which ruled, somewhat bizarrely, that the formalities set out in the Benelux Law on Designs were contrary to Article 5(2) of the Berne Convention on copyright. However the Supreme Court's finding did not mean that the Montis design right was re-activated. Montis Design returned to the fray in 2013, this time in the Benelux Gerechtshof, using the argument that since Article 17 of the EU Designs Directive 98/71/EC [1998] stated that a registered design "shall also be eligible for protection under the law of copyright", the Chaplin design was being infringed as a matter of copyright law. Article 17 is qualified by saying "The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State". However the Chaplin design had been created and registered before the Designs Directive came into force, and so it was argued, this provision did not have the effect of either reviving the lapsed design right or of retrospectively affording copyright protection to the design, because neither Dutch domestic law nor the Benelux Design Law implemented Article 17 retroactively.

The Gerechtshof examined this argument in the light of the CJEU's earlier decision in Flos. Flos (Jeremy posted a piece on this case here) had involved some similarity in that it concerned the design of a piece of furniture (a lamp) which had apparently entered the public domain (although in the Flos case the design had never been registered) under Italiy's Intellectual Property Code. The Second Chamber of the CJEU in that case had to consider whether the margin of appreciation afforded to member states by the sentence quoted above, would allow a country not provide the element of copyright protection at all. In other words does 'shall be eligible for' mean 'shall be given' or 'may be given'? The CJEU ruled that a member state could not exclude a registered design from also enjoying copyright protection. However being the CJEU, they had to say so in the most convoluted way possible:

1. Article 17 of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs must be interpreted as precluding legislation of a Member State which excludes from copyright protection in that Member State designs which were protected by a design right registered in or in respect of a Member State and which entered the public domain before the date of entry into force of that legislation, although they meet all the requirements to be eligible for copyright protection.

Despite the Flos ruling the Gerechtshof were still concerned about the retroactive aspect of Montis's argument invoking Article 17 of the Design Directive. For reasons that are not clear from the commentaries, the court felt it was necessary to seek clarification on whether Article 10 of the Copyright Term Directive 93/98/EEC meant that copyright might be revived in this case. This appears to arise because without the Article 17 provision, in some member states copyright will only subsist in a design if it meets some aesthetic criterion. I can find no mention in either of the Montis cases of it being argued that Mr van den Berg's design also met the originality criteria for copyright per se. A further clue to this lies in the wording of the second question of the referral shown below, which speaks about copyright in a work of applied art. From this I have to assume that perhaps Dutch copyright law (like the not-yet-repealed Section 52 of the Copyright Designs and Patents Act 1988) provides such works with a much shorter term than to other artistic works. Perhaps one of our readers can confirm this. The court's train of reasoning may have been: Art 17 only confers copyright protection on designs which have registered, but in the Montis case that registration had lapsed before Art 17 came into force therefore since it was not registered at the time, the design could not enjoy copyright protection.

Anyway the upshot was that in April 2015 the Benelux Gerechtshof referred the following questions to the CJEU:

1. Is the term of protection referred to in Article 10, in conjunction with Article 13(1), of Directive 93/98/EEC (the Term of Protection Directive) […] applicable to rights of copyright that were originally protected by national copyright law but which lapsed before 1 July 1995 on the ground that a formal condition had not been satisfied (in due time), more specifically because a maintenance declaration, as referred to in Article 21(3) of the Uniform Benelux Law on Designs and Models (old version), had not been filed (in due time)?

2. If the answer to Question 1 is in the affirmative:
Must the Term of Protection Directive be construed as precluding a rule of national legislation under which the copyright in a work of applied art that lapsed before 1 July 1995 on the ground that a formal condition had not been satisfied is deemed to have lapsed permanently?

If the answer to Question 2 is in the affirmative:
3. If, under national legislation, the copyright in question is to be considered to revive or to be revived at a certain time, from what date does such revival occur?

So far the Curia website does not indicate when we might expect to see the CJEU's decision.

The CopyKat

A US charity called the Association for Childhood Education International has filed a motion to intervene in the 'Happy Birthday' case as music publisher Warner/Chappell ponder their next move(s) after federal judge George H King ruled that Warner/Chappell’s copyright claim was invalid as they seemingly did not control the rights to the lyrics to the song. ACEI’s lawyers claim that the organisation had been receiving one-third of all revenues generated from Happy Birthday for over 20 years – and is largely reliant on this money to continue operating. ACEI argue that the song’s original author, Patty Hill, and her sister, Jessica Hill, had directly assigned rights to Summy Co – which would make Warner/Chappell the song’s rightful controller. Patty Hill, says the motion, was both a founding member and ‘active participant’ in ACEI “As the beneficiaries of Jessica Hill’s estate [which benefited from Patti's estate] both ACEI and the Hill Foundation have a very real and present interest in this litigation" - because if Warner/Chappell don't hold the rights to the lyrics - they do as heirs! More on MBW here and on TechDirt here.

That leaked document that revealed the EU Commission's plans for copyright in 2016 has sparked a lot of comment in cyber space - most name checking the IPKat!  In addition to tackling the issue of content portability in the spring, the draft suggests the Commission will explore a "follow-the-money" approach to enforcement, clarify rules for identifying infringers, and examine the crosss-border application of injunctions. The EU Commission is currently working on proposals for the modernization of copyright with the aim of providing a framework more suited to the digital age. The EU’s plan was set to go public exactly a month from today but last week the purrrrrfectly wonderful  IPKat said it had obtained a leaked copy of the draft communication from a ‘Brussels insider’. The main worry seems to be about linking - and the SEM Post opines that the plan "shows a very scary route the EU wants to take with links on the web, one that would hold a site owner liable if they link to any content that infringes on someone’s copyright.  Yes, a site owner could be liable if someone else they happen to link to has stolen content on that page, even if they had no idea if was stolen.This means that publishers – or anyone who publishes anything online, whether it be for business or a personal blog – could also need to consult a lawyer for every link they make, to know it is “safe” to link to". Julia Reda, the Pirate Party member of the European Parliament representing Germany, wrote on her site about the leaked draft on copyright reform and it could have a profound affect on the entire internet.

U.S. House Judiciary Committee chairman Bob Goodlatte (R-Va.) is right in the middle “listening tour” as part of an ongoing review of U.S. copyright law, and now he’s holding a hearing at UCLA that is aimed in part at Hollywood. Goodlatte has held 20 hearings on copyright law since announcing his review in 2013, with the focus on “determining whether our copyright laws are still working in the digital age.” More recently, he’s been travelling on a “listening tour” that takes him closer to key industries. Having started in Nashville,  Variety says he was recently at Santa Clara University in Northern California  to get a Silicon Valley perspective. The EFF says the main points raised by the technology companies were: (1) Statutory damages are far too high, and bringing them into rational territory could help solve other problems. (2)The Digital Millennium Copyright Act's DRM provisions urgently need reform. (3) Fair use has to do a lot of work, so it's a good thing judges have enabled it to do so and (4)  It's not just copyright—End User License Agreements have diminished our ownership rights. The line-up of experts and panellists in Santa Clara was diverse and impressive, and included people like Internet Archive founder Brewster Kahle, Ted Ullyot, who works for the technology investment firm of Andreessen Horowitz, musician Zoe Keating, iFixit CEO and DMCA activist Kyle Wiens, and of course EFF's own staff attorney Kit Walsh.

U.S. District Court Judge Gail Standish has dismissed a copyright lawsuit against Taylor Swift by using some lyrical terminology. Musician and songwriter Jessie Braham has accused Swift of stealing “Shake It Off” lyrics from his song “Haters Gonna Hate,” and attested that he had the song copyrighted back in February. Braham was suing Swift for $42 million in damages and a writing credit on her hit song. Standish wrote, “At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them.”

City Of London Police's IP Crime Unit (PIPCU) has arrested two people in Manchester on suspicion of being involved in the unlicensed distribution of music software online. PIPCU began investigating the arrested couple after being made aware of their online operation by record industry trade group the British Phonographic Industry (BPI). The accused allegedly ran a piracy operation that sold musical software - including digital products like backing tracks and pre-recorded instrumentals - at substantially reduced prices, without the permission of the owners of the works they are distributing.

And finally: readers are no doubt aware that on January 1st 2016, Adolf Hitler’s Mein Kampf, will enter the public domain in Europe, where the term of protection ends 70 years after the death of a work’s author, despite concerns.  Nazi propaganda minister Joseph Goebbels' diaries will similarly enter the public domain. But what about the writings of one of the Nazis’ most famous victims, Anne Frank, who died the same year as Hitler – 1945? It may surprise readers that the Swiss-based foundation that is the heir to the Frank family says the copyrights for the various versions of her work won’t expire for decades. The Anne Frank Fonds, a non-profit organization located in the Swiss city of Basel, was set up in 1963 by Anne’s father, Otto. The Fonds administers the rights to all writings by Anne Frank and says that copyright is crucial to protect her work from unchecked commercial exploitation. It seems that the 'Diary' we all know  (see illustration) was an edited compilation of two earlier works by Anne Frank, and that edited version was put together by her father, Otto, and first published in 1947. And the Foundation say Otto is a 'co-author' because of his role of editing, merging and trimming entries from her diary and notebooks and reshaping them into “kind of a collage” meriting its own copyright. As Otto didn't die until 1980, the Foundation say this work is still protected by copyright and will be until 2050. The two original versions by Frank, and various later translations,  were not published until 1986, so again the Trust says these remain in copyright, as do the versions edited by the German writer Mirjam Pressler, who is still alive (and is credited as a co-author with Otto of the 'definitive edition'). The diary was first translated in English in 1952 by Barbara Mooyaart, who is now 96. In the United States, the diary’s copyright will still end in 2047, 95 years after the first publication of the book in 1952. More here and here.

The CopyKat

In the UK, and as the general election looms, there's not been much mention of copyright, but one party has come up with some new suggestions - the Green Party - but they may be forced to backtrack on proposals to limit UK copyright terms to 14 years after a "howl of protest" from prominent writers and artists including Linda Grant, Al Murray and Philip Pullman. The Greens’ manifesto said the party aims to “make copyright shorter in length, fair and flexible” but Kate Pool, deputy chief executive of the Society of Authors, told the Guardian that the change would be “appalling injustice” and that artists and writers would be first to lose out under the proposal, with more money being made by manufacturers or distributors.

Calling for US Congress to back an overhaul of licensing rules and a rewrite of the so called consent decrees that govern collective licensing in America, rapper Ne-yo has added some pithy common sense comments in the debate about royalties payable from streaming music services like Pandora and Spotify saying "Songwriters see the smallest fraction of royalty payouts because we are limited in how we can negotiate. Meanwhile, record labels and recording artists often earn twelve to fourteen times more than songwriters for a stream of the exact same song. As an artist who has experienced both sides of this split, I can personally speak to the nonsensical disparity between these different incomes".

Online music streaming service Grooveshark could potentially have to pay hundreds of millions of dollars to major record labels after a U.S. judge ruled ahead of its trial starting today (Monday) that Grooveshark's copyright violations on nearly 5,000 songs were "willful" and made "in bad faith." Last september U.S. District Judge Thomas Griesa,  ruled that Grooveshark's parent company, Escape, and its founders, Samuel Tarantino and Joshua Greenberg, were liable for the illegal uploads of thousands of recordings by artists such as Madonna, Eminem, Bob Marley and Jay-Z. Judge Griesa said the defendants had directed their employees to make the uploads in spite of the legal risk and said that the site's takedown procedures ere not robust and failed to prevent uploaders repeatedly posting infringing material. The remaining matter is now the quantum of damages Escape Media must pay in penalties for the infringement in the action brought by nine record companies including Arista Music, Sony Music Entertainment, UMG Recordings, and Warner Bros Records in 2011. The maximum damages allowed under U.S. copyright law of $150,000 could potentially be awarded for each track infringed, and as Grooveshark has been accused of infringing nearly 5,000 tracks in the lawsuit - that's a massive $736 million (UMG Recording Inc et al v. Escape Media Group Inc et al).

In Russia, owners of 'pirate' sites have been given a final warning by the government. Augist 2013 amendments to the countries copyright law which will come into force May 1 not only protect more content than ever before, but also contain provisions to "permanently block sites that continually make unauthorized content available." Torrentfreak has more.

In NIgeria, the Nigerian Copyright Commission is proposing stringent new penalties for online infringement. The new Nigerian Copyright Act would, if passed into law, allow the NCC to cooperate with internet service providers to target infringing websites carrying illegal content. The NCC is also looking for a 2% levy on photocopiers, DVDs and mobile phones either manufactured locally or imported before the end of May, 2015. The levy is to compensate copyright owners but the NCC would retain a percentage to fund anti-piracy operations and promote creativity. Last year the NCC was involved in 202 anti piracy operations which resulted in 53 convictions. 

And China is clamping down on news webstes that harvest stories from other news providers.  WantChinaTimes reports that on April 22, the National Copyright Administration (NCA)  issued a set of new regulations governing news copyright, stipulating that if internet media outlets want to pick up any article from other sources, they should follow related regulations in China's Copyright Law. This means that these outlets should get advance permission from and make payment to the owner of the article reproduced and should clearly indicate the name of the author, as well as the title and source of the article.

Jean-Michel Jarre, songwriter, musician and now the President of CISAC, the global author rights collecting society body issued a statenent yesterday on World Intellectual Property Day in support of fair compensation for creators, saying  "Article 27(2) of the Universal Declaration Of Human Rights, adopted by the United Nations' General Assembly in 1948, states that, 'Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author'. These words are as valid now as they were 70 years ago" adding "Culture is what brings people together" and. "And is the expression of the cultural diversity that is so cherished by the United Nations and UNESCO. Access to culture is paramount to the elevation of mankind. It goes hand in hand with freedom of speech and freedom to create. Equally important in our eyes are the rights of creators. Without these moral and economic rights, creators would be deprived of ways to sustain a living and continue to create freely, and would also lose control over the use of their works" and "But for this to happen, creators need to be granted fair remuneration for the use of their creative works. In the music sector, we have launched the Fair Trade Music project to address this issue. In the visual arts sector, we are asking for an international treaty on the artist's resale right under the aegis of WIPO" concluding with "Sustainable creative eco-systems depend on the recognition that creative works bring value to so many businesses that would not exist without them. In return, what we, creators, are asking is simple: to be fairly compensated for the use of our works and to be protected for our rights. We are calling upon all the countries represented at the United Nations to endorse our pledge, and work with creators all around the world to ensure a better future for authors".

And finally, and importantly, over on the IPKat Eleonora reports on a recent decision from the German Federal Court (Bundesgerichtshof ) that says that public libraries may now digitise their physical collections and may make available to their users the digitized works through terminals located in the respective reading rooms. They may do so irrespectively of whether the publisher offers a digital version of the book or not. Further, the library users may not only read the digitized works, they may also print out parts thereof or save those parts to USB sticks. Such reproduction, however, must stay within the boundaries of private or academic use according to Sec. 53 UrhG. In return, the publishers are entitled to receive fair compensation. It's all here - and well worth a read.

No final case for Holmes

The U.S. Supreme Court has confirmed that it wont won't hear an appeal in the "Sherlock Holmes" case (Leslie Klinger v Conan Doyle Estate) in which in which the Court of Appeals for the 7th Circui upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that author and lawyer Mr Klinger was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright.

The CopyKat - your weekend copyright catchup

Renowned photographer Estevan Oriol has filed a lawsuit against Swedish fashion brand H&M and fashion house Brandy Melville for the use of his copyrighted image "L.A. Fingers." The 1995 photo depicts a female model's long, ring-clad fingers forming the letters "L.A." - for Los Angeles. The image has since become iconic and has been legally published worldwide in various magazines and Oriol's own branded clothing. His lawsuit alleges that both H&M and Brandy Melville "grossly infringed" on his protected works, using his photograph on a series of t-shirts that have been sold and continue to sell at their respective retail stores worldwide. "If you put my photograph side-by-side with their re-creation of my image, anyone would tell you they are one in the same... they clearly copied my image" Oriol said, with his lawyers adding “On behalf of artists and creators everywhere, we will vigorously seek out and aggressively pursue legal action against anyone who improperly uses an image at the expense of an artist".  You can compare the images here.

SoundExchange, the US non-profit that collects royalties for musicians from satellite radio firms, Internet radio services and cable music channels, said it has filed a suit against SiriusXM seeking to recover what it calls "massive underpayment" of digital royalties over a six-year period. The organisation said the satellite radio firm underpaid by "$50 to $100 million or more" by taking a number of impermissible deductions and exemptions in calculating its royalty payments from 2007-2012.

The Consumer Council of Fiji's CEO Premila Kumar has said that copyright is an important consumer issue and that unbalanced copyright laws and practices hurt consumers — not pirates. Speaking at the 2013 Copyright workshop organised by the Fiji Performing Rights Association last Friday, Kumar said there was always conflict between “protection” and “access” that had made copyright a much more visible and important issue for consumers especially in the digital age adding “It is now a question of striking a fair balance between creators, copyright owners and consumers”. Kumar says that piracy and the selling of counterfeit goods are two major issues the public is facing in Fiji. The Fiji Police Force is also calling for the amendment of the copyright law in Fiji. Legal director Superintendent Sakeo Raikaci said Fiji was using the Copyright Act 1999 and there was a need for clear and distinct laws and more powers to deal with piracy and that Fiji police are investigating ways to improve copyright laws to make it easier to prosecute offenders.

Filmmaker Tyler Perry and distribution partner Lionsgate have been successful in having a copyright lawsuit against their film Good Deeds dismissed. Author Terri Vanessa Donald (aka Tlo Red'ness) filed the suit last November, claiming the film infringed on her 2007 book Bad Apples Can Be Good Fruit. She claimed to have sent a copy of her book to Perry's company years before Good Deeds went into production. A judge ruled that the similarities Donald pointed out between her book and the film, a romance between a wealthy man and a woman who has experienced hardship, was not sufficient to sustain a copyright infringement claim.


PRS for Music reminds all of its authors and composers, and the 1709 Blog,  that from the1st  November 2013 a legislative change will alter the way the term of UK copyright protection for a co-written work is calculated. From this date the term of protection for the music and words within the co-written work will now expire 70 years after the death of the last surviving author of that work (composer or lyricist) rather than the current provisions where music and words within a co-written work are treated as separate copyright works with their own individual term of protection. The new law applies to co-written works made:

• on or after 1 November 2013;
• before 1 November 2013, where the musical work and/or words are still in copyright in UK on 31 October 2013;
• before 1 November 2013, where music or the words are protected in at least one member state of the European Economic Area on 1 November 2013.

Victoria Espinel, the USA's "copyright czar" until two weeks ago, has been named president of 

The Software Alliance, which goes by the acronym BSA, the anti-piracy trade group that lobbies governments on behalf of the software industry - 

The Hollywood Reporter tells us that cyberlocker service HotFile - which has been described as "more egregious" than Napster, Grokster and Limewire and "indistinguishable" from Megaupload - has been found liable for copyright infringement in an action brought by the the Motion Picture Association of America on behalf of five member studios. The copyright infringement suit, filed  in 2011, alleged that the company paid incentives to those who uploaded popular files to the system, that were widely shared. Its affiliate program still offers payment "calculated based on a percentage of the total value of premium accounts purchased by users who download the affiliate's uploaded files."
The summary judgment, which also found Hotfile boss Anton Titov personally liable for infringement, gave U.S. District Judge Kathleen Williams the chabce to look at the 'safe harbor' provisions of the DCMA and an opportunity to address the kinds of questions that have come up in the Supreme Court's Grokster decision, as well as Viacom's dispute with YouTube and Universal Music's dispute with Veoh;  Namely, what kind of knowledge and control is necessary before an Internet Service Provider has a legal duty to clean up copyright infringements on a network with the judge noting that "Hotfile was successful in large part because it did not control infringement activity on its system." The judgment is not available as yet but watch this space - as soon as it is (in 14 days time) we will get our claws into it - the MPAA said "This case marked the first time that a US court has ruled on whether so-called cyberlockers like Hotfile can be held liable for their infringing business practices".  Techdirt have a different opinion saying the Florida court made "a horrifically dangerous ruling" and "the risk of massive harm to innovation and the safe harbor protections under the DMCA is very, very real".

And finally, on the anniversary of the Dr Martin Luther King's "I Have a Dream" speech, which was delivered 50 years ago in August 28th 1963, before a crowd of several hundred thousand in Washington - one of the most important speeches of the 20th century - opinions are flying around the internet suggesting that "not one word can be uttered in public without stirring at least the slight possibility of a lawsuit, unless authorization to say it is obtained first" and "even reciting the speech in public, let alone posting a video of the speech, may raise the question of copyright infringement". Dr King's Estate own the copyright and by some accounts, has been aggressive about protecting the copyright: King's heirs sued CBS in 1996 after the television network began selling a videotape that included excerpts of the speech The case was settled out of court and The New York Times reported CBS agreed to make a tax-deductible payment to the Martin Luther King Jr. Center for Nonviolent Social Change in Atlanta. The decision, made on appeal, reversed a lower court decision that the video of the speech was in the public domain as a “general publication” but the Estate is now facing growing criticism from those who feel the iconic video, considered one of the most important cultural and historical moments of the 20th Century, should be easily found - and that copyright law should not make it difficult to see the entire 17-minute speech online.

Bob Dylan: The Copyright Extension Collection

As Eleonora reported on Monday, the IPO recently launched a consultation to gather views on the draft regulations intended to implement Directive 2011/77/EU in the UK, which would extend the term of protection for performers and sound recordings from 50 to 70 years. This directive was known as the Cliff Richard Directive as it enabled Sir Cliff Richard to continue to receive royalties on songs recorded in the early 1960s.

Now, because the 20-year extension only applies to works published before the expiry of the 50-year term, we are seeing a new release from Bob Dylan - his 50th Anniversary Collection, straightforwardly subtitled "The Copyright Extension Collection". This is a four-disk compilation of Bob Dylan songs, which was released last month to enable Sony (and therefore Dylan) to cash in on the songs on Dylan's 1962 debut LP, which would otherwise have entered the public domain in Europe on 1 January 2013. 

 

According to Rolling Stone, Sony Music have said that "This isn't a scheme to make money. The copyright law in Europe was recently extended from 50 to 70 years for everything recorded in 1963 and beyond. With everything before that, there's a new 'Use It or Lose It' provision. It basically said, 'If you haven't used the recordings in the first 50 years, you aren't going to get any more.'"

Most Dylan fans will be disappointed however as Sony have only released 100 CDs to select record shops. At least one of these is for sale on eBay: current bid US $1,077.63.

Given that last November readers unanimously answered "yes" when I asked "Is the term of protection of copyright too long?", I would be interested in hearing your views on this loophole.