The COPYKAT celebrates World IP Day

Following the celebrations of World Book and Copyright Day and World IP Day we are bringing you the latest news from the copyright world.

Monkeys Lack Standing to Sue for Copyright Infringement – 9^th Circuit Rules on ‘Monkey Selfie’ Case

On April 23rd the long dispute over the infamous ‘monkey selfie’ (covered here, here and here), which was taken by a Macaque monkey, named Naruto, has finally been decided. Following PETA’s complaint in 2015 where the organisation had requested to have any profits that will be gained from the photo taken by Naruto should go to the monkey and preserve its habitat, last year in July the Ninth Court has heard the parties’ arguments. Subsequently, two months later the parties have reached the settlement and filed a motion to dismiss the case but the motion was denied by the court.

The Ninth Circuit Court of Appeals held that the monkey, which was named as the plaintiff, lacked statutory standing to bring an action for copyright action under the Copyright Act. Neither it was possible for PETA to validly assert ‘next friend’ status that would allow it to represent the monkey “both (1) because PETA has failed to allege any facts to establish the required significant relationship between a next friend and a real party in interest and (2) because an animal cannot be represented, under our laws, by a ‘next friend’”.

Bulgaria brings amendments to its Copyrights and Neighbouring Rights Act

Bulgaria was one of the four countries which have failed to pass the laws that will fully implement EU Collective Rights Management Directive (Directive 2014/26/EC). On 7^th December 2017 the European Commission said it will refer Bulgaria to the Court of Justice of the EU and request a fine of €19,121.60 per day for failure to transpose the Directive which the country was supposed to enact by April 2016. The main aim of the Directive is to improve the operation of collective management organisations and set common standards for the multi-territorial licensing of rights for musical works that are distributed online.

In light of the Directive, Bulgaria has recently passed several amendments to is Copyrights and Neighbouring Rights Act. The new provisions will now allow non-profit organisations and other commercial legal entities (independent companies) to conduct the collective management of copyrights. In order to do so, independent companies will have to enter into a separate agreement for copyright management with the rightholders and register in the Rights Management Organisations Register at the Ministry of Culture. Furthermore, amendments introduced to the Copyrights Act regulate the responsibilities of the parties in the event of live performances, shift the control of copyright compliance to municipalities and provide the Minister of Culture with a power to oversee the collective management of rights.

SET TV Service Provider sued by Amazon, Netflix and Several Major Hollywood Studios

Several major Hollywood studios, including Disney, Paramount Pictures and Warner Bros, together with Netflix and Amazon, have formed a new (another?!) anti-piracy partnership, Alliance for Creativity and Entertainment (ACE), and have brought an action against Set Broadcast LLC, seller of the popular IPTV service SET TV. Following their actions against Tickbox and Dragonbox devices, members of ACE have filed a complaint against Set Broadcast accusing it of facilitating mass copyright infringement. In the view of the Plaintiffs, the software offered by Set Broadcast allows its buyers to stream copyright infringing content. As stated in the complaint, “Defendants market and sell subscriptions to “Setvnow,” a software application that Defendants urge their customers to use as a tool for the mass infringement of Plaintiffs’” copyrighted works. Additionally, Defendant invites its customers to download and install the software on their portable devices and computers. Apart from the software the company also offers preloaded boxes which enable their users to watch ‘on demand’ content and live streams of TV Channels. Plaintiffs claim that “[f[or its on-demand options, Setvnow relies on third-party sources that illicitly reproduce copyrighted works and then provide streams of popular content”. Therefore, ACE members are claiming in their action statutory damages and seeking an injunction to close the service and seize all the devices that are in Defendant’s possession. ACE spokesperson said that piracy software such as ‘Setvnow’ impair films and TV shows market, and cause harm “to a vibrant creative economy that supports millions of workers around the world”. Therefore, ACE is committed to “protecting creators and reducing online piracy through dedicated actions against illegal enterprises”.

Seinfeld Takes Action to Dismiss Copyright Complaint Over “Comedians in Cars Getting Coffee” Series

Earlier this year in February, director Christian Charles has filed a complaint in the Southern District of New York alleging comedian Jerry Seinfeld, together with companies involved in the production of the Comedians in Cars Getting Coffee web series. Charles claims that he has come up with the concept of the series and although he created the pilot episode, he is now out of the production, and royalties, as well as profits in violation of his copyright. In response to the lawsuit, (as reported by IPWatchdog), on April 4^th Seinfeld filed a memorandum to support the motion to dismiss the case. He asserts that the copyright claim should be dismissed for being time-barred given the claims were filed after the expiration of the statute of limitations. In the situation, where the Court finds the claims cannot be dismissed on the time limit basis, Plaintiff’s claims should be dismissed on the basis that they fail to provide a protectable copyright interest. In the view of Seinfeld and others, the concept of comedians in cars that has been followed by similar concepts such as Carpool Karaoke and Cougars in Cars Getting Cosmos, which “consists of nothing but ‘common stock ideas’ and unoriginal scènes à faire that do not rise to the level of original protectable expression”. Additionally, the Defendants claim that Charles has fraudulently obtained his copyright by registering similar title “designed to mislead the Copyright Office into accepting a copyright application that directly conflicted with the one filed by Mr. Seinfeld.”

Can A Tattoo be Protected by Copyright? – Continued

In the previous CopyKat [look here] we have looked at the dispute between Solid Oak Sketches and Take-Two over copyright infringement of tattoo designs. During the last week, a new lawsuit has been filed which addresses the issue of tattoo’s copyright protection. In her action against WWE and 2K Gamers, tattooist, Catherine Alexander who inked WWE wrestler Randy Orton argues that her designs were used in a commercial manner without her consent. Similarly to the NBA2K game, here video games from WWK2K series prominently feature Orton’s multiple tattoos in digital designs. According to Alexander, the games display Orton’s tattoos in a manner that is same or substantially similar to her copyrighted works. The question that the Court will have to answer, as indicated by Forbes, will be whether WWE and 2K Games have actually copied the work and whether there is a similarity between Alexander’s protectable designs and works in the video games. In the view of Alexander, “there is no doubt that her designs have been ripped off and reproduced in an effort to make them seem as close to real-life as possible”. 


In 2017 China’s Internet Copyright Industry Grew by Over 27%

In a recently released report, The National Copyright Administration of China reveals that its internet copyright industry grew by over 27% last year and has reached over  636 billion yuan, (US$100 billion). The biggest contributors are online news portals and online games which account for 73% of the total market value. In 2017 online news and information market grew by 40%, whereas online gaming increased by 32% and reached 235.5 billion yuan. Live streaming and short videos over the past two years have seen the most rapid growth, achieving a number of 422 million live streaming users. Mr Zhang Qinkun, Secretary-General of the Internet Copyright Industry Research Center, in observing prospects in the industry for the coming years said that businesses should concentrate on improving the quality of their content in order to attract users.

At the same time, the National Office for the Fight Against Pornography and Illegal Publications revealed in its report that China has dealt with over 460 cases in the first three months of the year that involved copyright infringement. According to the National Office, in connection with the cases more than 1.5 million illegal publications, such as e-books, videos and games were confiscated.

Swedish Patent and Registration Office (PRV) Wants to Promote Legal Streaming

The Swedish Patent and Registration Office (PRV) has created national aggregator called Streamalagligt.se (‘stream legally’), which aims to promote legal streaming among Swedish citizens. The platforms allow for searching of copyrighted works, such as films, TV shows, music, and sports events providing a single access point to find legal digital content. Streamalagligt.se is part of agorateka, portal of the European Intellectual Property Office (EUIPO) that intends to raise awareness and allow the search for legal content through national-level portals. Through the creation of its portal, Sweden joins 14 other EU countries that already have aggregator websites as part of agorateka programme.

For more information click here and here, and watch the video here.

This update by Mateusz Rachubka

The CopyKat

The animal right organisation People for the Ethical Treatment of Animals (PETA) has filed an appeal against a lower court's decision in January this year that declined to give the macaque monkey Naruto the right to his famous selfie taken in Indonesia in 2011. The appeal brief was filed at the Northern District of California.

Malibu Media — the online erotic film producer and alleged copyright troll — has been told that when filing against anonymous “John Doe” defendants whose identities are just an IP addresses for their Internet service, they cannot use geolocation tools to more precisely identify these alleged infringers. Malibu had argued that it had used “proven IP address geolocation technology which has consistently worked in similar cases to ensure that the Defendant’s acts of copyright infringement occurred using an [IP address] traced to a physical address located within this District.” The District Court was having none of that writing that “The allegation that the IP address at issue likely resolves to a physical address in this District is not supported in any of the declarations filed in connection with the instant motion.” and a second District Court said “Plaintiff fails to offer any evidence to support its allegation that the infringing IP address was actually traced to a location within this judicial district" and “Nothing in the declarations Plaintiff submitted with its Ex Parte Motion explains what steps Plaintiff took to trace the IP address to a physical point of origin within this Court’s jurisdiction.”

Can the unauthorised reproduction and making available of clips of cricket matches lasting up to 8 seconds amount to an infringement of copyright in works lasting several days hours minutes about this exciting and fast-paced sport? As Elonora tell us over on the IPKat, the answer is unsurprisingly yes -  and the use is not protected by the doctrine of fair use nor by 'safe harbour' - confirmed by Arnold J in his 174-paragraph judgment in England And Wales Cricket Board Ltd & Another v Tixdaq Ltd & Another [2016] EWHC 575 (Ch).

The German head of digital-economy policy at the European Commission, Günther Oettinger, is considering rolling out  German and Spanish “Google tax” on the wider EU stage. Oettinger’s department published a consultation on Wednesday that covers this “neighboring rights” issue (more commonly referred to as “ancillary copyright”). The consultation will run until June 15. This, and a review of the "freedom of panorama" too! Eleonora explains all on the IPkat, and of course John tells us more on the 1709 Blog here and more on the World IP Review here

UK record label association the BPI has said that its members have now issued more than 200m takedown requests to Google for removal of copyright-infringing links. The trade association, which represents the three major recorded music labels, Universal, Sony and Warner as well as many independent labels, sent its first takedown request to Google in July 2011. In 2015 the BPI sent 65m takedown requests and they are now, perhaps understandably, calling for a more permanent solution – so when an offending link has been removed following a takedown request, it stays down, permanently. For a leading technology company, Google seem rather less than innovative in finding a way of achieving this.  In a press release, the BPI say: ‘This high-volume take-down helps to limit the amount of illegal content being promoted, giving legal music services such as Amazon, Apple, Spotify and Deezer a better chance of appearing at the top of search results when fans are looking for music online" but add “While this approach has contributed to some improved visibility of legal services, illegal results that are taken down by Google are frequently replaced by other illegal links, which means that legal services continue to be overshadowed by infringing sites in the very top search results" and “This damaging situation can only be remedied by Google themselves changing strategy and pro-actively pursuing a “notice and stay down” approach, so that once a piece of content has been notified for removal by the BPI, it isn’t indexed again for the same site and stays removed.” The BPI are also asking Google to hep promote websites with legal content, and ensure court decisions to block sites are respected. CEO Geoff Taylor said "“We are calling on Google and Bing to show their undiluted commitment to artists and the creative process by implementing a more pro-active solution to illegal sites appearing in search results. This will avoid the cost for both of us in dealing with hundreds of repeated notices for the same content on the same illegal sites”.

Donald Trump’s presidential campaign is being sued by award-winning wildlife photographers who say Trump is using their copyright-protected image of an American bald eagle without permission. Attorneys for Wendy Shattil and Robert Rozinski filed the civil complaint in federal court this week after watching a Trump presidential rally on television and noticing that an attendee was holding a campaign sign that incorporated one of their photographs of the national bird.

And finally, the software behind the epic Princess Mononoke,  Spirited Away and Howl's Moving Castle anime films, created by Studio Ghibli founder Hayao Miyazaki and called Toonz, is about to be made available as an open-sourced edition which will be available for download starting March 26th. Those aiming to up its power can opt for a paid, premium version - helping Toonz cement a place as the world standard in animation. More on the Creators Project here.