THE COPYKAT

This CopyKat from David Liao

Duran Duran lose copyright battle: Under US copyright law, songwriters have an inalienable right to call for a reversion of copyright after 35 years, a provision introduced to help address the imbalance of negotiating power artists tend to have early on in their careers. 1990’s group Duran Duran had sought to use this right to reclaim copyright in their first three albums, Duran Duran, Rio, and Seven and the Ragged Tiger, effectively terminating their agreement with publishers Gloucester Place Music (owned by Sony/ATV via their takeover of EMI Music Publishing). However in a High Court ruling last week, Mr Justice Arnold ruled “not without hesitation” that the contractual interpretation suggested by Gloucester Place was the correct one, and that the “parties' intention was that the 'entire copyrights' in the compositions should vest, and remain vested, in the claimant (Gloucester Place) for the 'full term' of the copyrights.” As such, Duran Duran would have to withdraw its application to have their copyright reverted. The effect of this is to allow English contract law to override statutory rights in another jurisdiction, and sets a troubling precedent for other UK songwriters as a test case.  We wait to hear whether the group will be granted leave appeal.

Symposium - ‘Harmonising European Intermediary Liability in Copyright’. The Institute for Information Law (IViR) of the University of Amsterdam is organising a one-day academic symposium on European intermediary liability on 14 January 2017: In view of the new EU copyright reform package, the symposium will examine the issues surrounding intermediary liability in copyright in Europe, including the extent of duties and remedies which are appropriate to impose on intermediaries and the conditions to govern these. Moving beyond the current safe harbour regime, it will explore avenues towards the adoption of a substantive European system. Spaces are limited and registration is required – see here for more details.

Jersey Boys: The creators of hit musical “Jersey Boys” have been held by a jury in Nevada to have infringed copyright in an unpublished book. The claimant (Donna Corbello) is the widow of Rex Woodward, who had co-written an autobiography with founding member of the Four Seasons Tommy DeVito (as previously covered here on the 1709 Blog). Despite Judge Robert Jones previously noting that historical works are entitled to lesser protection than works of fiction, which suggests only Woodward's expression of these facts or his “unique selection and arrangement” of otherwise unprotectable elements would attract copyright protection, there were eleven similarities identified between the manuscript and the musical. It was not indicated which specific parts of the autobiography were copied but these similarities include the dialogue surrounding songs, the characterisation of individuals, and the description of scenes. It was also decided that the copied material contributed 10% to the show’s success. Damages will be determined at a late trial and a spokesman for the show has told NBC 4 New York “Jersey Boys” plans to appeal this decision – stay tuned.

Getty Images: Getty Images has had a copyright case dismissed without prejudice. Previously covered here by the 1709 Blog, Getty had threatened photographer Carol Highsmith via License Compliance Services (LCS) for copyright licence infringement. Ironically the image in question was one of Highsmith’s own - she had donated it to the Library of Congress, and Getty and its affiliates were subsequently discovered to have made available more than 18,000 of her other photographs. Highsmith responded with a copyright claim of statutory damages of almost $500m. These claims were, however, recently dismissed in a New York District Court, along with other claims that Getty and LCS had charged licensing fees and collected settlements from purported infringers for images they had no right to represent.

High noon for Getty Images as a photographer bites back

Image by Carol M Highsmith

When LCS, a company acting for stock photographic image agency Alamy, sent photographer Carol M Highsmith a $120 settlement demand for using one of 'their' images without permission, things were about to get messy. The image in question was actually Highsmith's own work, displayed on her own website. Highsmith has now responded with a $1bn lawsuit against the massive Getty Images.

Carol Highsmith is a 'richly published photographer best know  for capturing 'Americana'. Highsmith’s images have been publicly available through the Library of Congress since 1992, and the only thing the artist asks is that people credit her when using them. But why is her claim for $1 billion dollars? Well after this ill fated episode was started by Alamy,  Highsmith discovered that Alamy and Getty Images were apparently "representing" some 18,000 of her images.

Seattle-based Getty Images is the world famous multi national agency that controls an enourmous archive of stock images - and it is known to be vigilant in protecting its rights and the rights of its clients. The company scans the web in search of instances where people have used its images without obtaining an appropriate license and pursues the alleged infringer for money. Alamy decribes otself as "the world’s largest stock photo collection". Only here Ms Highsmith wasnt actually a client - and Alamy didnt own or control the rights to the images - and nor did Getty.

One of Carol Highsmith's images

TorrentFreak said that what followed was "a typical copyright-troll operation. Those supposedly using content without permission receive a scary letter from Getty agents warning that all kinds of terrible things might happen if Getty decides to take the case to court. All this can be avoided, however, if the supposed image pirate pays a cash settlement."
One such letter was received in December 2015 by the This is America! Foundation, a non-profit set up by Carol Highsmith, a long-established US-based photographer. Penned by a company calling itself License Compliance Services (LCS) on behalf of  Alamy. The letter said:

“We have seen that an image or image(s) represented by Alamy has been used for online use by your company. According to Alamy’s records your company doesn’t have a valid license for use of the image(s)” adding “Although this infringement might have been unintentional, use of an image without a valid license is considered copyright infringement in violation of the Copyright Act, Title 17, United States Code. This copyright law entitles Alamy to seek compensation for any license infringement.” The company demanded $120 to settle the dispute,

Highsmith says she explained her position to LCS - primarily that she was the author and was the first legal owner of the copyright in the image. However, she also revealed that she had donated this and thousands of other images to the Library of Congress and makes them available to the public to reproduce and display for free. At the end of December 2015, Highsmith received confirmation from LCS that the case against her had been dropped. However, Getty and Alamy reportedly continued to make available more than 18,000 of Highsmith’s other photographs on their websites.

Highsmith's lawsuit states: “Nowhere on its website does Getty identify Ms. Highsmith as the sole author of the Highsmith Photos. Likewise, nowhere on its website does Getty identify Ms. Highsmith as the copyright owner of the work” and “Instead, Getty misrepresents the terms and conditions of using the Highsmith Photos by falsely claiming a user must buy a copyright license from Getty in order to have the right to use the Highsmith Photos” and “The Defendants are not only unlawfully charging licensing fees to people and organizations who were already authorized to reproduce and display the donated photographs for free, but are falsely and fraudulently holding themselves out as the exclusive copyright owner and threatening individuals and companies with copyright infringement lawsuits that the Defendants could not actually lawfully pursue.”

Highsmith says that Getty is liable for statutory damages of up to $468,875,000.

Getty commented "We are reviewing the complaint. We believe it is based on a number of misconceptions, which we hope to rectify with the plaintiff as soon as possible. If that is not possible, we will defend ourselves vigorously” adding “LCS works on behalf of content creators and distributors to protect them against the unauthorized use of their work. In this instance, LCS pursued an infringement on behalf of its customer, Alamy. Any enquiries regarding that matter should be directed to Alamy.” 

http://www.loc.gov/pictures/collection/highsm/

http://www.vocativ.com/345960/photographer-hits-getty-images-with-1-billion-copyright-lawsuit/

https://torrentfreak.com/photographer-files-1bn-copyright-claim-against-getty-images-160728/

https://torrentfreak.com/getty-images-bite-back-in-1-billion-copyright-dispute-160801/

http://www.amateurphotographer.co.uk/latest/photo-news/getty-set-fight-1billion-copyright-lawsuit-90415

The CopyKat: splattering times

TorrentFreak tells us that Google processed an astounding 16.68 million takedown notices in just one week in August, unsurprisingly the highest number ever seen in a seven day period. To compare - this contrasts with  just 158,000 takedown requests in a week in Aughust 2011. By November 2012 this had grown to 2.2 million in a week. The takedown notices are usually issued under the US Digital Millennium Copyright Act complaints against the Google search engine, requesting that links to copyright infringing material be removed from its database so that they no longer appear when users search for certain key words - with music takedowns being a significant chunk of this.

On the matter of safe harbours,  PRS's Head Of Legal, Policy & Public Affairs, Frances Lowe, told the Westminster Media Forum that a lack of clarity over what services could and should be protected by (US and) EU 'safe harbour' provisions disadvantaged both rights owners and propery licensed platforms: "The UK's songwriters and composers play a significant role in the UK economy and its exports", she said. "And the EU is their most important market. And their current priority is securing fair income from the use of their music across the online ecosystem, so that careers can be sustained". "Songwriters are currently being squeezed", she added, before targeting in particular the "user-upload platforms that are unlicensed or under-licensed" because they claim they are protected by safe harbours. This means they pay nothing or less for the songs they use, "despite the fact that without those songs they would not be able to raise capital, or pay their shareholders, or make a profit". The PRS recently lauched litigation against music streaming platform SoundCloud and Lowe said "Online services built on user-upload platforms which make content available to the public should not be able to plead safe harbour".

T


The BBC says its planning to launch a ‘New Music Discovery Service’ streaming service which will take on the likes of Apple Music, Tidal and Spotifywhich would make the 50,000 tracks broadcast by the BBC every month available to stream for a limited period. This digital platform will go one better than the ‘BBC Playlister’ initiative launched in 2013, which allowed listeners and viewers to transfer playlists of radio DJs’ shows to Spotify and other services. What those currently reviewing the BBC and the Licence Fee on behalf of the UK Government as part of charter renewal will make of a fully-fledged online music streaming service, owned and hosted by the Beeb, remains to be seen - but the BBC justify the move as an 'enhancement' to current services saying "Through this digital music offer, we would reinvent our role as a trusted guide, in partnership with our audience and with the UK music industry" addding "Together, the BBC and its audiences would curate music in new ways, enabling the discovery of more of all the music we play across the schedules of our many radio stations and TV channels" and  the service would also be "fully open and integrated with other digital providers", with users "able to transfer playlists between digital music products, and access them after BBC availability has expired through third-party providers". The BBC is already facing vocal criticism for unfairly squezing local news providers and "completely crowding out national newspapers" , as well as producing highly commercial programming like Strictly Come Dancing, Great British Bake Off and Top Gear to take on the likes of ITV in unnecessary prime time battles. The BBC's spend on its online operations as well as BBC3 and BBC4 are thought to be at risk. However, MBW reports that all three major labels are some way off licensing the new service– and have expressed early concerns about permitting a completely free music streaming service to use their catalogue.   Comment here. 


The Australian federal government has been urged on to stop the process of implementing an ISP copyright code.  The Internet users rights group Electronic Frontiers Australia has confirmed it wants the process to be halted, with its call coming in the wake of the introduction of new anti-piracy website blocking laws. The EFA said today that while it does not condone copyright infringement, international experience shows that copyright notice schemes are of “marginal value at best in addressing online copyright infringement" and puts the blame for infringement on a lack of legitionate services delivering what consumers want. EFA Executive Officer Jon Lawrence said the process should not continue until the government has conducted a “detailed cost-benefit analysis to ensure that it is not an unnecessary additional regulatory burden that will further harm competition in the sector and result in higher connectivity charges for Australians.” More here and here.


Billboard reports that Russian police have opened a probe into the collecting society RAO, which allegedly embezzled 500 million roubles ($7.4 million at the current exchange rate). The probe is centered on allegations that RAO, Russia's sole state-accredited collection society for authors’ rights royalties, embezzled some of the royalty fees it had collected by buying real estate and later transferring it to a shell company. According to reports, between 2007 and 2011, RAO purchased four buildings in central Moscow, which later changed hands several times, ending up in the possession of several other companies and individuals. The investigation comes at a time when the Russian government is controversially pushing RAO to merge with two other state-accredited collecting societies, VOIS (which deals with neighbouring rights) and RSP (which collects a one-percent tax on imports of electronic devices that can be used for copying content).

Where copyright leads .... others follow. The number of private prosecutions, once lonely road walked by copyright owners and not many others, is on the rise in the UK - with an estimated 300-500 private prosecutions last year - with the least three years seeing a 30+% rise year on year. The BPI, Sky TV, the Federation Against Copyright Theft and the Premier League have used private prosecutions as a useful tool against  alleged infringers - often succeeding even where the Police and the CPS have shown little interest. Now private prosecutions have been used in cases involving traffic offences, fraud and even domestic violence - the families of two women who were killed in the Glasgow bin lorry tragedy are threatening to bring a private prosecution against the driver of the lorry.

And finally - can you copyright an ink splatter? Well it seems Getty Images thinks you can: The Register reports that "Venerable hacker publication 2600 is fighting off what looks like an early candidate for the most egregious copyright infringement accusation of 2015". It seems that 2600 used an ink-splatter effect in 2012 and now group called Trunk Archive – ultimately owned by Getty Images – claims the image is theirs and the use was spotted by their crawler bots - and the use is infringing - with 2600 saying "We thought it was a joke for almost an entire day until one of us figured out that they were actually claiming our use of a small bit of ink splatter that was on one of their images was actionable". The ink splatter is in the bottom right section of the 2600 publication. In a twist, BoingBoing say that the ink spaltt isn't even Getty's - tracing the source of the ink splotches to a Finnish artist. More here.


Getty are also facing flak after demanding nearly $1,000 for one year's use of an image of a penguin that is actually part of a 'semi-popular' internet meme, better known as the Socially Awkward Penguin from a German Blog. Itb seems the issue is that the penguin itself could have been plucked from a photograph taken by George Mobley for National Geographic - although its now just a simplified cartoon penguin. Getty justified its actions to the DailyDot saying “Getty Images has an immense responsibility to the 200,000+ artists we work with to ensure that their work is properly licensed when used by commercial entities. Bear in mind that many artists themselves are small businesses, and are entitled to be paid for their work.” and pointing to the image embed tool that it launched last year.

The Copykat - Dotcom surprised by criminal charges ........

Remember John Steele, Paul Hansmeier and Paul Duffy, best known from reports as being the attorneys behind controversial 'troll' company Prenda Law ? Well - they are back in the news!  And still annoying judges! However its not all bad news after an Illinois federal judge denied motions for contempt and sanctions against the trio after a defendant in a copyright case said the attorneys for so-called porn troll Lightspeed Media Corp had blocked discovery and lied about being insolvent to avoid attorneys’ fees, saying he had not presented sufficient proof. U.S. District Judge David R. Herndon said that while individual defendant Anthony Smith had “uncovered questionable financial activity” on the part of Lightspeed’s counsel —  Steele, Hansmeier and  Duffy,  — and that the arguments raised and the records cited left the court suspicious of their previous representations, Smith had failed to show enough evidence to have his contempt motion granted. “The court does not believe that Lightspeed’s counsel have conducted themselves in a professional manner,” the opinion states. “However, suspicion is not a sufficient basis for a finding of contempt.” In March, Judge Herndon held the attorneys in contempt for violating a November sanctions order requiring them to pay $188,000 in legal fees and costs to Comcast Cable Communications LLC and AT&T Internet Services and $72,000 to Smith. The court further sanctioned the attorneys in the amount of 10 percent of the original sanction. More on Law 360 here

One of the USA's top cybersecurity and intellectual property officials says he knows how to make sure artists and musicians reap all the benefits from their works – by making illegal streaming of music and movies a felony. “[W]e believe that federal criminal law should be modernized to include felony criminal penalties for those who engage in large-scale streaming of illegal, infringing content in the same way laws already on the books do for reproduction and distribution of infringing content,” Alex Niejelow, an intellectual property and cybersecurity official, wrote in response to an online White House petition.

TV-over-the-Internet startup Aereo has filed for bankruptcy, bringing to a close its long-running copyright battle with US television networks.

Spy Ghana reports that Ghanaian musicians are being asked to get involved in copyright issues; Bessa SimonsVice President of the Musicians Union of Ghana (MUSIGA), has urged up and coming musicians to get involved in copyright related issues saying that most musicians of the older generation retired from music with little because they never took interest in copyright related issues. Bessa was a member of the band Osibisa andd said that that even though the collection of royalties by Ghana Music Rights Organisation (GHAMRO) on behalf of the right owners seems to be in its infant stages, it will get better with the young great musicians pushing it forwards noting “When UK started PRS for music, the first collection was about GBP 1, 900 and they had members up to the tune of 190. Now as we speak, they have collected over GBP £666 million and they are sharing it to about 100,000 musicians; and that is where we want to get to telling musicians "You are the only people who can propel it. So please get interested in the copyright issues”.

The author and creator of Padding Bear, Michael Bond, has revealed that he once considered suing the parents of Top gear presenter Jeremy Clarkson after learning they were selling soft toy versions of the famous bear.  In an interview with The Sunday Times Bond said that he was alerted to the fact that Shirley and Eddie Clarkson were selling the toys when a Surrey shopkeeper called him with the news in the early 1960's. 

Also in the UK, and perhaps unsurprisingly, cross-industry trade body UK Music, working with the Musicians' Union and British Academy Of Songwriters, Composers And Authors, is set to fight the private copy exemption added to British copyright law earlier this year through the courts saying "The MU, BASCA and UK Music welcome the purpose of the new measures, namely to enable consumers to make a copy of their legally acquired music. However, this is a bad piece of legislation as it incorrectly implements the law by failing to include fair compensation for musicians, composers and rightsholders" expaining "The private copying exception will damage the musician and composer community. It contravenes Article 5 (2) (b) of the [European] Copyright Directive which includes a requirement that where a member state provides for such a copyright exception - as the UK now has - it must also provide fair compensation for rights holders".

Judge Denise Cote has denied Microsoft’s request to dismiss a lawsuit filed by Getty Images for copyright infringement resulting from a feature of Microsoft's Bing search tool that allowed people to easily embed digital photographs onto their websites. Court documents filed in New York’s federal court show that Microsoft’s request to dismiss the lawsuit has been denied. In a statement, a Microsoft spokesman said: “We’ve already disabled the Bing image widget beta and believe there is no need for this case to continue.”

And finally - a rather staggering 'confession' from none other than Kim Dotcom, the former boss of Megaupload. The larger than life figure has told an online forum that he underestimated the threat of legal action that's left him fighting extradition from New Zealand to the USA and the 'surprised; 40-year-old said he regretted not taking threats over copyright from the Motion Picture Association of America seriously enough. Dotcom said that he and his advisers had monitored civil copyright cases and never foresaw the likelihood of criminal charges saying "No one ever for a minute thought that anyone would bring any criminal action against us" and "We had an in-house legal counsel. We had three outside firms working for us and not once - and they've reviewed our sites completely - not once had any of them suggested any criminal risk at all." Hmmmmm! 

The CopyKat: mirror mirror on the wall - who has the biggest banana of them all?

A federal judge has dismissed lawsuit filed by Arrow Productions, the owner of the copyright in the 1972 iconic porn movie “Deep Throat”. The case was brought against The Weinstein Co, the company that produced the biographical 2013 movie “Lovelace” which looked  look at the life of Linda Lovelace, star of “Deep Throat”. According to Arrow the 2013 film recreated three scenes “word for word, positioned the actors identically or nearly identically, recreated camera angles and lighting and reproduced costumes and settings” from the original film.  U.S. District Judge Thomas Griesa said that the movie was “entitled to a presumption of fair use,” concluding that its use of the three scenes from “Deep Throat” added a “new, critical perspective on the life of Linda Lovelace and the production of ‘Deep Throat.". The judge also dismissed trade mark claims.

TiVo has announced that it is releasing a new product - the “Roamio Over-the-Air [OTA] DVR”) that will allow customers who don’t have cable/satellite service to record, store, and playback over-the-air television programming (provided they have an HD digital antenna pulling in the signals). Now what does that remind the CopyKat of - ohhhhhh yes - the Aereo service that the Supreme Court declared to be infringing  in June. However the key difference is that this is a customer's box - allowing customers to record programmes where they already had free access, and to play those recordings back to themselves - rather like a video recorder - and that of course reminds us of of that classic 1984 (split 5-4) Supreme Court decision in Sony v. Universal which found that  manufacturers of home video player/recorder devices such as Betamax or other VCRs could not  be liable for infringement - overturning the The United States Court of Appeals for the Ninth Circuit which had found the manufacturers of betamax manchines liable for contributory infringement. But will the content and broadcast sectors see it that way?

The head of the Serbian actors’ association, Nikola Djuricko, has said that actors will demand amendments to the copyright law that would extend legal protection on artists whose performance is visual and not just an audio recording (Article 117 of the Serbian Law on Copyright and Related Rights states that performers are entitled to remuneration for the performances published “on a sound carrier”). 

Maslen & Mehra's work

Australian artists Tim Maslen and Jennifer Mehra have issued a legal challenge to the BBC. alleging that a BBC TV promotion for a World War One program infringes their copyright in their 'mirror soldier' artwork. Mehra and Maslen cut silhouette figures from mirrors and then place these mirror people in a landscape and film them with a moving camera. The result is "a interplay between the background and the landscape which is reflected in the mirrors. As the camera shifts, the mirror figures seem to blend with, and then emerge from, the background". ABC explains that the BBC promotion uses the same device but the BBC write to the artists saying ‘the team who worked on this project were not previously aware of your work. With regards to the image itself, the idea was conceived by the creative team at Karmarama, an advertising agency, and brought to life through a commissioned artist and a bespoke shoot. Everything has been created from scratch for this campaign.’  If this gets to court it will be interesting to see what might transpire ......... and it's worth noting that Judge (now Mr Justice) Birss did find infringement in the so-called Red Bus Case (Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1) where a picture of a red bus travelling over a monochrome Westminster Bridge and Houses of Parliement against a white sky had been 're-created' (but not copied) by New English Teas for packaging. Image from MyModernMet.

The International Business Times tells us about Getty Images, whose 'settlement demand letters' - sent to those who the image licensing copany have discovered have used their 80 million images without permission - are often accused of being close to mimicking the behaviour of copyright trolls. Well, Getty has had a nasty shock. Getty's Picscout software picked up an unlicensed image it thought was on the website of of  the Schneider Rothman IP Law Group, a Florida law firm (who specialise in copyright litigation). Getty wanted a $380 licensing fee for a photo of a woman texting and driving, which Getty claimed, was being used on the firm’s website without permission. The law firm pointed out that it never displayed the Getty-owned image on its website. Rather, the image was syndicated through a plugin operated by Zemanta Inc., a software company that provides third-party content.  Getty have now admitted its error and that it had closed its claim against the law firm - but not before the law firm issued its own legal proceedings alleging  “unfair and deceptive business practices.” The law firm is seeking a court declaration that no infringement was committed and an injunction against Getty to stop it from demanding payment where no infringement exists.  

The Hollywood Reporter tells us that Sirius XM could be on the verge of fending off the first major challenge in an ongoing lawsuit brought by major record labels over its royalty-free broadcasting of pre-1972 music (which of course includes a wide repertoire including classic rock n roll and tracks from the likes to Bob Dylan, The Beatles and the Rolling Stones). Los Angeles Superior Court Judge Mary Strobel has indicated that she was leaning towards rejecting a motion by Warner, Universal, Sony, Capitol and ABKCO Records to accept the labels' interpretation of the law in jury instructions. The plaintiffs believe that state laws protect the misappropriation of older sound recordings that were authored before falling under federal copyright protection. But the judge isn't ready to go so far and has indicated that she feels the label's may be relying on inappropriate case law. This lawsuit is just one of a number of actions against the broadcaster - which include the class action led by Flo & Eddie of the Turtles in which the band behind "Happy Together" contends that state law protects pre-'72 music and the broadcaster can't rely on statutory royalty rates for the recordings - and the claim from collection society SoundExchange claiming Sirius XM underpaid federal royalties for pre-'72 tunes. And Sirius have had a second dose of good news on that front: U.S. District Judge Richard J. Leon in the District of Columbia has approved the Sirius' motion to stay the lawsuit from SoundExchange to await the decision of a hearing with the federal Copyright Royalty Board - the body that sets the statutory rates that Sirius XM must pay - and if these can include revenues purportedly attributable to performances of pre-1972 sound recordings."

Banana Lady

We had previously reported how Cindy Lee Garcia had persuaded a split panel of the U.S. 9th Circuit Court of Appeals that she had rights to her performance in the 13-minute trailer for "Innocence of Muslims".  Chief Judge Alex Kozinski held that Garcia held a copyright in her performance despite appearing in only five seconds of the trailer, writing none of her own lines and even having part of her dialogue overdubbed by someone else. The dissenting judge in the case, N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "An actor's performance, when fixed, is copyrightable if it evinces some minimal degree of creativity ... no matter how crude, humble or obvious it might be".  The Garcia case is clearly unusual, as Judge Kozinski acknowledged. Actors don’t own copyrights in their performances in Hollywood films — not least as film contracts clearly specify each person’s rights. In Garcia’s case, there was no contract, and thus the unusual (“rarely litigated”) issue arose of whether she had a copyright in her performance. Having over turned the trial judge and with a dissenting justice in the appellate court, the Garcia decision is currently awaiting possible rehearing by the Ninth Circuit en banc, and is somewhat controversial. But now we have a second and seemingly conflicting decision in the Banana Lady suit - an action brought by Catherine Conrad, a/k/a the “Banana Lady,” who puts on private performances while wearing a costume in the shape of a giant banana. The case of Conrad v. AM Community Credit Union reached the U.S. Court of Appeals for the Seventh Circuit after photos and videos of her performance were posted to the Internet after a performance at a credit union trade association event - despite her desire to forbid this.  The appeals court unanimously rejected her claim (one of many she has brought, some seemingly frivolous) and in a decision written by Judge Richard Posner the court held that Conrad’s performance “was not copyrighted or even copyrightable,” since it wasn’t fixed in a tangible medium. And because the videos taken by members of the audience merely portrayed non-copyrightable material, they didn’t infringe her rights. Conrad also alleged that the event organiser was contractually obligated to prohibit posting of videos of her performance — but the organiser showed that they did make an announcement announcement and so had not induced any copyright violations. The decision affirmed the federal court in Winconsin:  "if you dance around in a giant banana costume at a public event, you cannot restrict people from posting pictures of you doing so under the auspices of copyright infringement." 

Le Corbusier Heirs Score Win over Getty Images in France

 Charles-Édouard Jeanneret-Gris (
better known as Le Corbusier)

As I have noted before on this blog, photography occupies a rather unique place in copyright law inasmuch it is (or at least can be) a creative work protected by copyright as well as a vehicle for infringing the copyright of others.  It is this latter aspect that was on display in a recent ruling by the Paris Court of Appeals involving furniture co-created by famed archictect Le Corbusier and images thereof available for licensing on Getty Images' database.

Upon learning of photographs on Getty Images's voluminous image database that reproduced the furniture, the plaintiffs (holders of the moral and economic rights to the works) brought suit for infringement of copyright in the pieces of furniture.

After a detailed analysis of each photograph, the Court concluded that in certain pictures, the original furniture was indeed reproduced in a non-fortuitous manner (clearly identifiable in particular in their original aspects, central position in the foreground).  This is an application of well established principles in French law under which reproduction of protected subject-matter in photography escapes liability provided it is incidental, fortuitous or accessory to some principal object.  The Cour de cassation has held that this "exemption" is a limitation not an exception and survived the French transposition of the InfoSoc Directive's (closed) list of possible exceptions (see here).

The 2006 statute that effected the transposition did include an exception for the press with regard to the reproduction of certain works (e.g. buildings, statues) for news purposes (Section L.122-5, par.9 of the Intellectual Property Code - see here) but this was not applicable in this case.

As regards the issue of damages, the Court was unmoved by Getty's argument that there was no evidence that licensing of the pictures at issue had any adverse effect on sales of the actual furniture that was reproduced in the pictures.  Applying principles in effect in france since the 2007 transposition of the IPR Enforcement Directive, the Court looked to Getty's profits and awarded the sum of €1,800 per infringing photograph, in light of inter alia the quantity of images in the database and their exposure thereon (it pointed out that Getty itself claimed that its image database contained over 80,000,000 images) as well as Getty's bad faith (it had continued to offer the images for licensing despite an initial judgment in the plaintiffs' favour).

Getty's argument to the effect that there was no violation of Le Corbusier's right of attribution (paternity right) because his fame ensured that the public would be able to identify him despite his name not being cited was rejected out of hand by the Court.

The decision is Fondation Le Corbusier v. Getty Images (Paris Court of Appeals, Pole 5, 2nd chamber June 13, 2014)

The CopyKat - snappers paradise: skating clear of Getty's images, it's in Degeneres we trust!

In Taiwan, the Dutch television production company Endemol has lost a lawsuit against the the producers of a Taiwan game show called "Go to Top 101" which  it accused of copying its popular program called "1 vs 100."  "Go to Top 101" was a 29-episode show in which a single contestant went up against 101 contestants. It was aired by Taiwan's China Television Company in 2009 and was hosted by Hu Gua. Endemol argued that "Go to Top 101" had similar scenic designs as "1 vs 100" and just like the foreign show, made three "helps" available to contestants. The Taipei District Court ruled that although the two shows had very similar rules and ideas, elimination and helps are common concepts in game shows and should not be overly protected by copyright. 

Rival services in Australia have accused Netflix of turning a 'blind eye' to copyright - pointing out that although it has not launched in Australia, Netflix has anywhere between 50 and 200,000 subscribers there, who use a VPN (virtual private network) such as Hola to gain access, and yet the 'unavailable' service has no agreement with content owners to operate in the market in Australia.


Rightscorp, "the leading provider of monetization services for artists and holders of copyrighted Intellectual Property" has said that it has closed more than 60,000 cases of copyright infringement to sate. The company, which says it "helps monetize copyrighted intellectual property for rights holders and provides valuable Digital Millennium Copyrights Act compliance Solution for ISPs" announced that it has settled more than 60,000 cases of copyright infringement to date. The Company says that it's monetization service "successfully collected payments from illegal distributors through notifications sent by their Internet Service Providers (ISPs) on digital assets including music, films, books, video games and software." It will be interesting to see how the digital world reacts tp the news - this blogger expects cries of 'trolls ahoy' to echo around cyberspace.

Two copyright law professors have told the US Supreme Court that Aereo's service is illegal and they say that in denying broadcasters request for an injunction against Aereo, the Second Circuit of Appeals got just about everything wrong, misconstruing the "text, structure, specific legislative guidance, and general legislative purposes of the 1976 [Copyright] Act." Berkeley Law Professor Peter Menell and UCLA law professor David Nimmer say that the Second Circuit handed Aereo a copyright "get-out-of-jail-free card" that unravels the basis of the Copyright Act of 1976 that the Congress has reaffirmed  numerous, times saying in an amicus brief "That ruling cannot stand" submitting that the Court should hold that Aereo’s service infringes the copyright owners’ exclusive right of public performance," they said.

Getty Images has rolled a social sharing feature that "unshackles a vast section of its image collection". Getty’s new Embed tool will allow bloggers and the like to easily embed and share its imagery - at no cost - for  non-commercial use (hmmm, what DOES that mean) on websites, blogs and social media channels. Users will be obliged to include photographer attribution and provide a link back to Getty Images and the company said that the “embed” tool provides people with a simple and legal way to utilise content “that respects creators’ rights, including the opportunity to generate licensing revenue". I am so in awe of the previously ever litigious Getty that I have just stuck with the cowards mantra of 'no image' for this blog as Getty is mentioned (and I couldn't quite understand their website).  But we are not so worried by the Oscars ..........

(c) 2014 - but to whom?

Question: Who owns the copyright to Ellen's selfie image at the Oscars? Well apart from Eleonora's article and the 20 odd comments on the IPKat on this topic, and various opinions here  and here and here  (all saying the man who pushed the button, Bradley Cooper, owns it) we were alerted to a very well written opinion by photographer Bettie Robertson who said the snap belongs to Ellen DeGeneres -- and probably to Ellen alone - UNLESS -  she was doing this as part of a "work for hire" for the Academy - and that those featured in the "groupie" would  not be joint authors, and in all events Ellen told them what she was going to do with the snap - and Bradley who pushed the button "was just acting like a thoughtful gentleman".  The fairly heated discussion on the IPKat also suggested that sponsor Samsung might be the owner, having possibly directed Ellen to arrange the shot on the S5 mobile phone as a publicity stunt, although our very own John Enser opines "Surely the answer is that anyone who goes anywhere near the Oscars stage will have signed a release handing over all their rights to the Academy - so irrespective of who was the first owner, it is now owned by the Academy?". 

The CopyCat - tantalising titbits and techno tales

Stevie Wonder at Glastonbury 2010 by Nick Cordes

Stevie Wonder has offered to perform live for international negotiators who are in Morocco trying to forge a deal to give the visually impaired greater access to reading material. In a very amusing video message, the blind singer-songwriter urged WIPO delegates to agree saying “So do it, we get it signed, sealed, delivered, I’m yours.” Wonder said he’d fly to Marrakesh to celebrate with delegates if they struck a deal.

We had previously noted that Russia's social networks had started removing illegally uploaded music content en masse in the face of new laws - much to the annoyance of users. Was it all a waste of time? A Russian politician has now suggested that the country’s new anti-piracy laws should only protect copyrights in television programmes and movies – as these are expensive to produce. Aleksey Mitrofanov said he has submitted an amendment to the bill aimed at countering internet piracy saying “The bill must only cover movies and TV series - the copyright objects that are expensive to produce,” Mitrofanov to a session of the expert group on electronic democracy. Microsoft has already expressed surprise that software was excluded.

BuzzFeed, the viral news site, is facing a $3.6 million copyright lawsuit from an Idaho-based photographer who says BuzzFeed lifted an image from his Flickr page and used it in one of its signature photo montage listicles back in 2010. In a complaint filed on June 7 in the Southern District of New York, Kai Eiselein claims that BuzzFeed, Inc. “knowingly and wilfully” infringed on his copyright when it reposted his photo titled “Contact” which features a female soccer player getting hit in the head by a soccer ball. According to the complaint, the image appeared in a post called “The 30 Funniest Header Faces” , a photo montage of people getting hit in the face by soccer balls  posted by BuzzFeed staffer Matt Stopera. The montage was posted on June 14, 2010, and Eiselein claims he sent BuzzFeed a Digital Millennium Copyright Act (DMCA) takedown notice on May 26, 2011. According to the lawsuit, the photo remained on the site for more than two years after Eiselein sent the notice. In addition to remaining on buzzfeed.com, the lawsuit claims the photo was shared to 63 other sites, most of which appear to be personal blogs.  The montage, has since been conspiciously renamed “The 29 Funniest Header Faces”, and Eiselein’s photo is no longer among the images. Eiselein, who is representing himself in the case, said he first uploaded the image to Flickr in 2009 and registered it with the US Copyright Office in 2011. More on the IPKat from Jeff John Roberts here.

UK Culture Secretary Maria Miller needs to show she is "not in the pocket of Google", former culture secretary Ben Bradshaw has said. The Labour MP said copyright theft costs musicians, writers and artists billions of pounds each year and asked when the UK Government is going to enforce copyright law, amid fears not enough is being done to ensure global internet service providers tackle online piracy.

We don’t often get the chance to mention Armenia on this Blog, so I am delighted to report that the Armenian parliament on has approved amendments to the country's copyright law and neighbouring rights, which will mean those using excerpts from newspapers, magazines and the web must reference to the source. The changes stipulate that mention must be made of the original source of information in newspapers and magazines and there must be an active  hyperlink in internet articles. The law will also define a limit on what can be taken and used.

Victoria Espinel, The US Intellectual Property Enforcement Co-ordinator has published her 2013 Joint Strategic Plan on Intellectual Property Enforcement and you can read a shorter review here: "As the Obama administration tries to build on the present intellectual property structure, it’s also looking towards the future. In the first few pages of the report, the enforcement office lays out where it thinks the intellectual property debate will shift in the coming years. Some items, like an ongoing fight against patent trolls and theft of trade secrets from China and other countries, are already high on the administration’s priority list."

Google News in Germany will soon change says TechCrunch. Starting August 1, it will only index sources that have decided to explicitly opt-in to being shown on the search giant’s news-aggregation service. Google News remains an opt-out service in the other 60 countries and languages it currently operates in, but since Germany passed a new copyright law earlier this year that takes effect on August 1, the company is in danger of having to pay newspapers, blogs and other publishers for the right to show even short snippets of news. More from Eleonora on the IPKat here

Normally it’s Getty who issues the lawsuits, but now a US courtroom sketch artist has sued Getty Images for allegedly infringing copyright by displaying her illustrations online and selling copies of them without her consent. Christine Cornell of Weehawken says in her lawsuit that she has served as a courtroom illustrator for nearly every major trial in New York, Connecticut and New Jersey since the 1970s. She alleges that Getty Images wrongly sold drawings from those trials - including sketches of people like Martha Stewart and would-be subway bomber Najibullah Zazi, which she had licensed on French news agency AFP on a limited licence.  Cornell argues that Getty Images has a pattern of acquiring rights to image archives without first making sure that the sellers are allowed to transfer the images. In 2010 Daniel Morel complained that his photos of the earthquake in Haiti which he uploaded to Twitter were distributed to Getty via AFP which then licensed them to other news organizations. That case is pending in the federal court in New York.

And finally, more on China - and the Hollywood Reporter says there is an acute shortage of IP and entertainment lawyers. With the cinema sector alone enjoying 37% growth last year to $2.7 billion, and already up another 40% this May on the same period last year, there are great opportunities it seems. Although Chinese legal traditions and copyright development stem from a quite different base than the American economic traditions, “Part of the problem is a simple shortage of qualified intellectual property and entertainment lawyers in the country". So to all young entertainment lawyers struggling to gain a foothold - the future is clear - Go East!

But I'm going West, and off to Glastonbury! And sunny skies. Maybe.