THE COPYKAT

1)    YouTube in the NEWS

In the last fortnight, there have been a couple of extremely interesting developments in the copyright regime operated by the online video platform YouTube.

Firstly, YouTube has taken a step to forbid manual claims by copyright holders and specifically record companies, which is done to claim revenue upon videos including extremely short music clips or “unintentional music.” Inculcating the importance of quantitative content in a video, YouTube in a blog post has revealed this change. The reason provided for the same move reads: “These claims can feel particularly unfair, as they transfer all revenue from the creator to the claimant, regardless of the amount of music claimed.” However, although manual claiming of money has been restricted, the ability to block or disable putting ads on videos using the manual claims tool will still exist. YouTube has gone on to acknowledge that in the short run, this might result in a lot more videos being blocked, however it is pragmatically focussing on the long term impacts. Even “Timestamps” to recognise exactly which part of the video is infringing have been brought in place for all manual claims, for invoking copyright claims in a balanced and fair manner. As reported by Variety, if YouTube creators feel that their use of unlicensed content falls within the fair use bracket, they can always dispute the same in the service’s appeals process.

Now, Secondly, YouTube has resorted to the DMCA to take action and file a suit against a major alleged copyright troll whi they have identified as one Chris Brady, and who YoTube says has been making extraneous and illegitimate copyright claims. The basis of the complaint is that Brady has taken aim at the Minecraft gaming community, alleging several infringing claims against two users - not only to extort money - but to allegedly slander as well as part of the 'trolling'. It has apparently been also reported that these copyright takedown notices were allegedly abusive and involved an element of blackmail wherein the message read that the YouTuber ought to pay Brady 150 $ via PayPal, or another copyright strike would take place. This information was conveyed to YouTube after multiple efforts, finally through another video, upon which YouTube has restored the videos and filed a suit against Bardy. A false accusation suit has been filed. Upon being enquired, as reported by The Verge, YouTube has released a statement that: “We regularly terminate accounts of those that misuse our copyright system. In this case of particularly egregious abuse, where the copyright removal process was used for extortion, we felt compelled to pursue further legal action and make it clear that we do not tolerate abuse of our platform or its users.” An issue highlighted in this system of YouTube is the focus of scrutiny on the accused rather than the accuser. The assumption is an extremely good faith oriented one that focusses on every takedown request being legitimate. It is imperatively needed that a balanced approach is followed for proper implementation of the Copyright system on such vulnerable intermediary platforms.

2)    Meanwhile, Spotify catches the attention of the Copyright world, yet again

There have been two recent occasions when Spotify has hit the (legal) news - and the music streaming platform been on both sides of a lawsuit concerning copyright.

Firstly, on the plaintiff side Spotify filed their appeal, joining Amazon, Google and Pandora, on the Copyright Board’s decision regarding the rates to be paid to sing writers and music publishers under the mechanical rights regime, by digital platforms. The challenge is at its core upon the decision which increases the per song royalty rate from 10.5% to 15.1%. This increase has been brought in the first place to harmonize, to some extent, the American policy, to the prevailing international normative practice followed by various copyright societies. This move has been subject to fair amount of criticism due to the songwriters claiming inadequate payments for exploitation of their creative endeavor. In an attempt to negate the criticism, Spotify and other digital streaming companies have resorted to being okay with the rate change, however, have claimed procedural misconduct on the part of CRB. The core of the claim is on the ground of lack of stakeholder consultation and cross-evidence provision, and not the rate in principle. Further, the publishers have argued that merely offering family plan discounts or student ones do not support the proposition of low willingness to pay for streaming music. It will be interesting to see how the appeal court approaches this. Read more here.

Now, Secondly, and on the receiving end of a law suit, Spotify, as reported by Variety, has been sued by Eight Mile Style, the publishing company that hollds the rights to Eminem’s earlier works, for copyright infringement. The major claim revolves around the unlicensed exploitation and streaming of 250 of Eminem’s songs. It has alleged Spotify to have paid a mere fraction of the payments properly  due and have remitted such without any license in place. Further Spotify has also been alleged to have mischievously concealed the accreditation of certain well-known songs like “Lose Yourself” claiming inability to trace Copyright holder. Further, an obligation to live up to the responsibilities provided under the Music Modernization Act was emphasized upon, which was not fulfilled by Spotify in the present case. To claim a liability limitation under the Music Modernization act, it is imperative for Spotify to have not known the copyright owner of the composition or the work was unmatched with previous sound recordings, after proper due diligence. This also has been alleged to not have been complied with, in the suit.

3)    US Dept. of Justice release Amicus Brief in favor of Led Zeppelin in infamous Copyright Suit

Analyzing the 'thin' copyright provision in the US, the US Deptartment of Justice, giving reasons akin to that of the trial judge, sided with Led Zeppelin in the Stairway to Heaven case. previously covered here and here against Randy California, the now deceased songwriter with the band Spirit. Under old US law (the 1909 Copyright Act), sound recordings weren't conferred protection. Songs were, and pre-1978 unpublished works would be as represented by sheet music.  The song at the centre of the copy claim, Taurus, was written by California in 1968. And so surely all that could be used at the trial to determine infringement (or not) was the sheet music? The trial judge concurred.  On appeal, the 9th Circuit then decided that the sound recording should have been played plus held that the jury was improperly advised about unprotectable music elements and standards of originality. But the new opinion relies on the fact that prior to 1972, it was only sheet music that was covered under copyright and audio recording need not be heard by the jury to find out whether there was an infringement or not. The “thin” copyright protection has been emphasized upon. The DoJ's  amicus brief goes on to claim that the Ninth Circuit was wrong to overturn the finding of the lower court which stated the compared compositions to not be sufficiently similar for copyright infringement. The U.S. government explains that "even if deposit copies do not capture all details of a composition, they generally include the elements of a song, such as the melody and lyrics, that are of most importance to the copyright owner. Failure to incorporate elements such as these in the deposit copy would reflect a failing on the part of the copyright owner or its agent, not an insurmountable obstacle imposed by the statutory scheme." The Amicus Brief argues that the only similarity between the allegedly infringing work and the original is the selection and arrangement of two basic musical elements: an A minor chord and a descending chromatic scale. These have argued to not substantially be the base of the challenge as a small standard selection and arrangement gets a fairly thin copyright protection due to the “creative” standard of Originality being prevalent in the United States. Virtual Identicality needs to be proved, which has not been done in the present case according to the brief. This interpretation as a friend of the court has consciously been taken up the DoJ in order to foster intentional and sound interpretation of copyright laws. It will be interesting to see the force of this brief when ultimately deciding the case, for the second time. The amicus brief can be found here.

4)    Victory for Universal Studios in “Nightcrawler” Copyright Case

As reported by the Hollywood Reporter, a Utah Federal judge delivered a summary opinion in the 4 yearlong copyright case  dealing with the film Nightcrawler, wherein the accused Oscar winning writer director Dan Gilroy, was alleged to have plagiarised a work by Richard Dutcher called Falling. The judge devised an important precedent recognising certain scenes a faire elements in films and eradicating the same from the scope of the analysis of any copyright infringement. In the opinion, the District Judge held that to establish a copyright claim there are two separate enquiries to be undergoneL The first is whether the defendant factually copied portions of plaintiff’s work, and second being those expressions that have been copied are protectable expressions and important to the copied work, citing Gates Rubber Co. v. Bando Chem. Indus Ltd. It is imperative for protected elements to be copied. The abstraction test requires separation of non-protectable ideas and then warrants a mere comparison of the protectable elements.  Here the court looked at what elements were “standard, stock, or common” to the stringer (newsman) profession and material that necessarily followed from that theme and setting (citing Autoskill 994 F.2d 1494). The court held that Falling is not the first film to portray stringers in action and on a review of previous stringer films, it was found that there were no independent claims in Falling that did not exist state of the art. The court held the similarities between Falling and Nightcrawler were (primarily) due to both focussing on the role of the Stringer. Apart from these generic similarities, the court held the plots to be quite different. The court also held the cliché journalistic phrases found in Falling as non-protectable and were scenes a faire expressions. After deducing these elements, the court used the ordinary observer test to eradicate infringement claims, holding the aesthetic appeal to be different.

This CopyKat from Akshat Agrawal

THE COPYKAT - in the wake of "Blurred Lines" - more blurred lines

There have been two major US decisions in the word of music and sound recordings with a win for Kraftwerk and a loss for Katy Perry, and in the background a third (the Led Zepplin "Stairway to Heaven" case waits for an upcoming an en banc appeal in the Ninth Circuit, and a fourth involving Ed Sheerhan in turn waiting for that decision (Sheerhan v Townsend) with Judge Louis L Stanton acknowledging that as the appeal judges will be considering some copyright technicalities that are very relevant to the 'Thinking Out Loud' action, even if not binding, to proceed with Sheerhan case in "wilful ignorance" of their conclusions would be "folly". 

First off - sampling: The European Court of Justice sided with German electronic music pioneers Kraftwerk, ruling that unauthorised sampling of even brief clips of a sound recording can constitute copyright infringement as long as they are recognisable, in a long running case that has added some clarity to how sampling should be treated in the European Union. Kraftwerk brought the action against hip-hop producers Moses Pelham and Martin Haas in 1999 over the Sabrina Setlur track “Nur Mir”, which revolves around a two-second snippet of Kratfwerk's “Metall auf Metall” used as a loop.

In 2012, Germany's Federal Court Of Justice found in favour of Kraftwerk, in part on the basis that Pelham could have easily recreated the sound he sampled, so clipping the snippet out of 'Metal On Metal' was just laziness. Four years later the German Constitutional Court overturned that judgement, deciding Pelham's "artistic freedom" had to be considered - and that the negative impact on Kraftwerk caused by the uncleared sample wasn't sufficient to outweigh the sampler's artistic rights. The case was then referred to the CJEU.

Making clear the difference between sampling a recording and copying part (or all) of a song, Advocate General Maciej Szpunar wrote in his opinion "A phonogram is not an intellectual creation consisting of a composition of elements such as words, sounds, colours etc. A phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself" adding "Consequently, although, in the case of [other creative works], it is possible to distinguish the elements which may not be protected, such as words, sounds, colours etc, from the subject-matter which may be protected in the form of the original arrangement of those elements, such a distinction is not, however, possible in the case of a phonogram".

In the second major case, a jury has now ruled that the Katy Perry song Dark Horse does plagiarise a Christian rap song. After two days of deliberations, the jurors concluded that Perry's team had likely heard 2008 release 'Joyful Noise' before writing 'Dark Horse', and that the latter was sufficiently similar to the former to constitute copyright infringement.

Both producer Dr Luke, a co-writer on Perry's hit and Perry herself said they had never heard of 'Joyful Noise' nor heard of the artist behind it, the rapper Flame, real name Marcus Gray - before they started work on their song and recording. Gray's team argued that there had been many opportunities for Perry and her co-writers to to have heard 'Joyful Noise' and argued that whilst the copying may not have been deliberate,  her team had subconsciously infringed the earlier work. Gray's legal team also also pointed to the similarities between the two songs - each share a distinct musical phrase consisting of four C notes followed by two B notes. Perry's legal team argued that this was a very common musical phrase that couldn't possibly be protected by copyright. Luke added that if the court did indeed decide that a musical phrase of this kind enjoyed copyright protection, it could set a dangerous precedent that would impede the music making process.

They're trying to own basic building blocks of music, the alphabet of music that should be available to everyone," said Katy's lawyer Christine Lepera during her closing arguments in court last week, but the jury has accepted that this was copyright infringement. The case now goes to a penalty phase, where the jury will decide how much Perry and other defendants owe for copyright infringement.  Jurors found all six songwriters and all four corporations that released and distributed the songs were liable, including Perry and Sarah Hudson, who wrote the song’s words, Juicy J, who wrote the rap he provided for the song. Other defendants found liable included Capitol Records as well as Perry’s producers: Dr. Luke, Max Martin and Cirkut, who came up with the song’s beat.

A wide array of artists – including Korn, Tool, Sean Lennon, Linkin Park and  Jason Mraz have joined the amicus brief submitted in the ongoing ‘Stairway To Heaven’ case, supporting the British rock band in their arguments and calling on the judges in the Ninth Circuit appeals court to uphold the earlier ruling that Led Zeppelin did copy ‘Taurus’ when they wrote their 1971 classic. In total 123 artists support the amicus brief saying that if the original ruling in the ‘Stairway to Heaven’ case is overturned it could create a dangerous precedent that would be hugely detrimental to songwriting and an assumption that “trivial and commonplace similarities between two songs could be considered to constitute the basis for a finding of infringement” and that this would confuse artists, stifle creativity, and result in “excessive and unwarranted” litigation by artists and lawyers seeking to profit from ambiguities in the law.

Rolling Stone magazine published the article Why All Your Favorite Songs Are Suddenly Being Sued? asking asking why is so much music being hit with lawsuits, in a trend a trend that shows no sign of slowing. You can find that here and more comment and analysis here (from Professor Edward Lee in the Washington Post) 

Major US broadcasters ABC, CBS, Fox and NBC Universal have filed a lawsuit against an upstart online TV service offering free over-the-air digital TV service. The suit filed in U.S. District Court in New York alleges Locast owner, New York-based non-profit advocacy group Sports Fans Coalition violates broadcaster copyrights streaming content to users for free. The suit is similar to 2013 litigation brought by studios against Aereo, the defunct OTT service that transmitted digital signals to subscribers via over-the-air antennas. The litigation also pits broadcasters against AT&T, which owns and operates WarnerMedia — although the telecom is not party to the lawsuit. More here and here. 

And more from the US: Bloomberg Law reports that a battle over banana costumes continues in federal court with one manufacturer under order to stop selling full-body banana suits because they likely infringe another’s valid copyright.  The U.S. Court of Appeals for the Third Circuit affirmed a lower court’s order stopping Kangaroo Manufacturing Inc. from selling banana costumes that are confusingly similar to plaintiff Rasta Imposta’s copyrighted design. Rasta’s copyright is valid because it didn’t “monopolize the underlying idea” of a banana, the court said. More here. 

And finally - copyright notices - serious business yes? It seems not always! Techdirt have been doing some digging and have found some very amusing notices that certainly do not fit in with the prescribed formats: How about ""No part of this publication may be reproduced, stored in a retrieval system, cookie jar or spare room... Unless you want to write the whole thing out in green crayon, in which case feel free." and "This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, carried across the country by relay, fired into space, turned upside down, eaten... On pain of death."

Kraftwerk Image Nigel Hardy https://www.flickr.com/photos/92352391@N00/35441036106

THE COPYKAT

Unauthorised sampling - the CJEU adds some clarity

The core issue in this all important case between the German electronic music pioneers Kraftwerk and and hip-hop producers Moses Pelham and Martin Haas in 1999 over the Sabrina Setlur song “Nur Mir”, which revolves around thse sample a two-second snippet of Kratfwerk's “Metall auf Metall” used as a loop was whether a license is required for sampling and could non-pursual of the same violate the phonogram producers rights? The AG's opinion which was released in December and 2018 gave an affirmative view to the same arguing that the “reproduction in part” does not require copied portions to be original. The CJEU in its decision (according to IPKAT and the Press Release) has stated that the reproduction of a sound sample by a user even if a very short clip must be regarded as a reproduction in principle “in part” and falls in the realm of the exclusive ownership of the phonogram producer. However the court went on to add that a rational respect towards freedom of artiatic expression in music must be recognised when the sampled portion is creatively played with to the extent that it is unrecognisable to the ear in another phonogram. In that case it won’t be a reproduction.  So the CJEU has now said that sampling a sound recording, however short a snippet the sampler takes, needs approval from the copyright owner of the original track and in accordance with the same it held the German Legislation allowing for an exception in the case of sampling as incompatible with the EU law, and it imperative to harmonize this substantive phonogram producers exclusive right irrespective of the fundamental right grounds claimed by the national jurisdiction. 

5 Seconds of Summer accused of copying by Hungarian songwriters

Moving from sampling to allegations of plagiarism, A Texas court recently saw a case where the Aussie pop group Five Seconds of Summer had been accused of ripping off a 2018 hit called “Younghood” from a song composed by Hungary based musicians David Henderson, David Toth and Peter Ferencz called “White Shadows”. It has been alleged by the applicants that the success of this rip-off has substantially taken to band to new heights virtually single-handedly, as reported by Complete Music Update. It has been alleged that the first melodic phrase of “Youngblood” shares virtual identicality with the similarly placed phrase from “White Shadow” and are both repeated equal number of times in the songs i.e. 4 times. The lay-listener has been used to allege an infringement by the Hungarian composers. It has further been alleged that the worldwide acclaim and substantial revenue which has been garnered by virtue of Youngblood, is a result of exploitation and appropriation and the applicant’s deserve accreditation and compensation in lieu of the same.

Take a listen - with the Applicant’s song is here https://youtu.be/7zMzXQU5dkA and the allegedly infringing song here https://youtu.be/-RJSbO8UZVY . In a second major case, a jury has now ruled that the Katy Perry song Dark Horse does plagiarise a Christian rap song. After two days of deliberations, the jurors concluded that Perry's team had likely heard 2008 release 'Joyful Noise' before writing 'Dark Horse', and that the latter was sufficiently similar to the former to constitute copyright infringement.

Now NIKE sues Kawhi Leonard - claiming exclusive rights on its Logo!

Nike has filed a countersuit against NBA star Kawhi Leonard, arguing that it holds exclusive rights to the claw logo that its “talented team of designers” created and claims its distinct from the design that Leonard had sketched and provided to the company, his “Klaw” logo, which he had conceived and created in college drawing on his hands. Although it has been admitted by the NIKE legal representatives that  Kawhi Leonard had submitted a design, they have gone on to state that it is a false claim that the design was the “Claw” design, as reported in the Bulletin. In the form of a counter claim, NIKE has gone on to now allege copyright infringement and breach of contract. This has been done in lieu of the use of the claw design on non-Nike apparel in the NBA finals. Nike had already served notice to Leonard’s lawyers in lieu of the same which was responded with non-agreement and compliance. Nike has further argued as reported in NiceKicks.com that Leonard had on an earlier occasion claimed that “I drew up the rough draft and sent it over and they made it perfect. They refined it and made it look better than I thought it would ever be, and I’m extremely happy with the final version.” Further, Nike has produced the initial sketch in the court which was given by Leonard which looks like an amateur drawing as has been reported by the Bulletin. Also, Nike does not claim any ownership over this initial rough design, rather merely on the final refined version.

CASE Act passed by the Senate Judiciary Committee

As had been reported by PetaPixel, the long awaited CASE Act has been passed by the Senate Judiciary Committee - if passed, the bill will  go on to establish a small claims court for Copyright Infringement cases in the USA. There is yet to be a full vote on the Senate Floor. Currently, to defend one’s copyright, a direct action needs to be made before the Federal Court which is an expensive and an extremely formalistic procedure. However, this act if legislated successfully would establish a small claims tribunal within the US Copyright Office, simplifying defense of copyrights. The highest amount of damages which can be awarded by this court per infringed work would be $15,000 with the total being a maximum of $30,000. This definitely increases the efficiency and reduces a certain amount of burden on the Federal Court. It will involve the appointment of three full-time Copyright Claims Officers who will look after the same.

This bill has been extensively supported by the US photographers, illustrators, graphic artists, songwriters and authors as well as bloggers! Even the National Press Photographers Association went ahead to commend the pressing of this act in the Senate by saying ““This is a very positive step in addressing infringement issues, where previously individual creators felt they had a right with no remedy because of the high cost of copyright litigation”, as reported by PetaPixel. The only criticism which has been drawn however has been upon the unappealable nature of this tribunal and the high amount of $30,000 being involved as a punitive power. 

It will be interesting to see the voting view taken by the Senate floor.

DailyMotion denied safe harbour protection

Dailymotion has been ordered to pay €5.5m in damages to Italian broadcaster Mediaset with the Rome court saying that Dailymotion was “entirely aware” of copyright infringement. As reported by Complete Music Update, in a case brought in by the Italian TV company RTI against  Dailymotion, it was argued by the applicant that Dailymotion should be held liable for hosting copyright infringing content without a license, involving programmes of the applicant. The take-down commitments were fulfilled by Dailymotion, and upon serving a notice, it had taken down such alleged infringing material. However, the Rome Court, absolved the safe harbour protection available to such intermediaries like Dailymotion as it did not fulfil the criteria set out in the EU E-Commerce directive, which is the origin point of the EU Safe Harbour norms. It has been ruled to be an “Active Host”. For failing to have a filtering mechanism and a system to automatically remove all such infringing content, Dailymotion has been asked to pay 5.5 million euros in damages. This has greatly increased the responsibility of a user-upload based intermediary platform and has reduced the standard from actual knowledge to mere presence. The courts of Rome have further refused to involve the European Court to confirm and clarify the interpretation and applicability of the EC Directive. It has been held that the right holder did not have an obligation to provide URL’s for the content that the platform should remove in its take down request and a simple indication in the title of the video would be sufficient. This seems all the more as an absurd and a non-sustainable interpretation and it will be interesting to see how this case turns out in lieu of the pending cases on the interpretation of Article 14 of the EC Directive in the CJEU. Although, this decision has been hailed by Italian media Conglomerate wherein it has reportedly been stated by its Chief Executive that: “Today’s decision is therefore an authentic turning point in consolidated national and EU jurisprudence (repeatedly referred to by the Court in the judgment in question) aimed at protecting the work of publishers, which is under attack by diverse forms of online piracy: A phenomenon that destroys both economic value and jobs in journalism and publishing companies.” (Reported by IBC 365). More on this in the IPKAT.

The functionality doctrine revisited in the Lego’s Copyright dispute against its British Competitor

The world famous toy maker from Denmark, Lego, has successfully won a copyright infringement suit against a British competitor in the US District court for the District of Connecticut. This dispute was launched in 2011 when Lego had sued Best-Lock for producing and selling infringing minifigurines. It was alleged, as reported by World IP review, that Best Lock’s advertisements had highlighted the well-known interchangeability of its figures and body parts with Lego’s. The main argument of the defendant in this case was the elements of Lego’s copyrighted work being functional. The court after confirming access, went on to conclude that the fact that some elements of the work are functional doesn’t render the whole work as non-copyrightable. The court said: “A comparison of the works makes clear that Best-Lock has copied protectable, expressive elements that are original to Lego”  Remember the case of Broderbund Software v. Unison World?

Copyright Protection of Military Reports, of national importance

In a very important opinion issued by the CJEU on a reference made in context of litigation between the German Government and a newspaper over unauthorized publication of “Afghanistan papers” and certain confidential reports, wherein the question of interplay of Copyright and Freedom of Press was brought in before the CJEU. Basically, the question was can freedom of expression and information be a valid defense for copyright infringement? The AG opinion reflected reluctance in admitting copyrightability of military reports. However, the CJEU has gone on to rule that Freedom of Information and press are not justifiable grounds to derogate from rights of copyright holders beyond exceptions set out itself within the InfoSoc directive. The concept of external limitations is not viable in law. As on the question of whether military reports are copyrightable in the first place, the court went on to hold that it is upon the national courts to decide whether the conditions of copyrightability and intellectual creation showing free and creative choices are there in these reports or not. If fulfilling the criteria of being a “work”, no justification in the form of freedom of information is sustainable.

The court went on to finally hold that: “As is clear from the case-law of the European Court of Human Rights, for the purpose of striking a balance between copyright and the right to freedom of expression, that court has, in particular, referred to the need to take into account the fact that the nature of the ‘speech’ or information at issue is of particular importance, inter alia in political discourse and discourse concerning matters of the public interest. In those circumstances, having also underlined the way in which Funke Medien published the military status reports on the internet, the Court of Justice states that it is not inconceivable that such use may be covered by the exception concerning current events reporting provided for in the Copyright Directive.” More on this once the judgment is available  on IPKAT.

And finally - trolls get a bashing

A High Court Judge has torn apart a trolling application made against Virgin subscribers in the United Kingdom - Douglas Campbell QC's can be found on TorrentFreak and is well worth a read - here's a snippet: "“I do not accept that I should simply assume that a 9 year old expert report remains up to date, particularly one given in the field of computer software,” the Judge commented, noting that the report also lacked the required “statement of truth” to comply with civil procedure rules  ..... . 

This Copykat by Akshat Agrawal

THE COPYKAT

STORING INFRINGING GOODS IN WAREHOUSES, CRIMINALLY ACTIONABLE- RULES SWEDISH SC

The Supreme Court of Sweden has reportedly, post a CJEU referral, confirmed in a recent case that storage of infringing goods with a view to selling the same may pave the way for both kinds of liabilities- civil as well as criminal. This case has been reported in detail by IPKat. The CJEU had, having established that storing counterfeit goods falls within the scope of Article 4(1) of the InfoSoc Directive, left it for the Swedish courts to determine the question of criminal liability. Due to this clarification, the Swedish SC held the scope of Section 2 and 53 of the Copyright Act to include storage of goods, for commercial purposes within the scope of the distribution right. Hence, an intention to distribute has been held to be sufficient to establish Criminal Liability. More can be read upon this here, here and here.

STAIRWAY TO HEAVEN COPYRIGHT CASE TO BE REHEARD BY THE APPEALS COURT!!

Very interestingly, it has been reported by The Rolling Stones magazine that Led Zeppelin’s Stairway to Heaven will be reheard by an 11-judge panel in the 9^th US Circuit Court of Appeals. The question raised all importantly in this dispute is whether the rock and roll band plagiarized its opening riff from Spirit’s 1968 song called “Taurus”. Last year, a decision was given by the US court of appeals, wherein the case was remanded for a new re-trial due to erroneous instructions given to the jury – which had decided in favor of the defendant. Due to sufficient proof of “substantial access” to Spirit’s work, it was held that jury instruction on the inverse-ratio rule was inappropriate. For a detailed analysis of this, one can read this informative post on Spicy IP. Holding a lack of substantial similarity, the jury had in 2016, ruled that there was no Copyright infringement. This re-trial will bring a number of important issues, regarding Copyright Infringement in musical works in light. The legality and viability of the inverse ratio rule is hopeful to be discussed at length in this trial.

PEPE THE FROG COPYRIGHT DISPUTE SETTLED!!

As covered in the last edition of the CopyKat, the Pepe the frog Copyright infringement suit has been doing the rounds for a while. However, Infowars has agreed to settle this dispute by paying $15,000 to the creator of the cartoon. The creator of Pepe the Frog – Matt Furie, had sued Infowars over alleged similarity and use of this character. The lawyer for InfoWars has reportedly stated that they were sued for millions initially, but they have agreed to settle the matter upon payment of an honest licensing fee which has been determined to be $15000. More can be read upon this on the reporting website Channel 3000.

TEXAS APPEALS COURT HOLDS THAT COPYRIGHT INFRINGEMENT IS NOT “PROPERTY TAKING”

As the government is immune from copyright infringement claims in the United States, Jim Olive a photographer, intending to claim compensation for the use of his photograph, argued in the Texas district court that infringing his copyright amounted to taking away his property which is actionable. Olive had sued The University of Houston, for the alleged taking, under the US constitution. The claim was concerned with a photograph clicked by Olive from a helicopter in 2005. Such use by the University was discovered 3 years later by Olive who was seeking just compensation for the unlawful taking. The question of enforcement of Copyright against government enterprises is an issue, wherein the legal authority is divided and scant. The federal district court, however, had held in a patent infringement suit that such infringement does not amount to property taking. No constitutional right has been established to be violated in this case – was held by the court. Not only does this gives the state complete immunity against Copyright infringement claims, it creates a bizarre situation wherein the State can infringe any person’s work without a claim for compensation being available. It will be interesting to see how the further Appeals court takes on this decision. More on this can be read here. The ruling can be found here.

COPYRIGHT DISPUTE OVER ABORIGINAL FLAG

As reported by the World IP review, the exclusive rights holder for the flag had issued a cease and desist notice to aboriginal-owned businesses using the flag sign and design on their products for commercial purposes. The flag in question has been designed by artist Harold Thomas, to recognize and protest for land rights and as a symbol of the race of the Australian aboriginals. A copyright was granted for the same in 1997. Normally, a flag representing a community is held to be in the public domain, however, an exclusive right has been granted herein. There is a worldwide discussion on who is to be given the ownership of the flag and the community members are actively involving themselves in this discussion. A change.org petition started by Spark Health, whose brand Clothing the Gap raises money for Aboriginal health, states: “This is not a question of who owns the copyright of the Flag. This is a question of control.” It will be interesting to see how the government and the court take this matter ahead.

This CopyKat by Akshat Agrawal

THE COPYKAT

COPYRIGHT IN GEORGIA’S LEGAL CODE: THE WAY FORWARD?  In 2018 The 11^th Circuit had held that the statutory legal code of Georgia is not protected by copyright law. An important decision propagating the norm of open access to legal documents and rules was given by this court. The prime reason for this action of review is to reaffirm this ruling and set it as a binding precedent even beyond the precedential scope of 11^th Circuit. As open records activist Carl Malamud said "Access to the law is a fundamental aspect of our system of democracy, an essential element of due process, equal protection, and access to justice". The Eleventh Circuit's ruling is persuasive authority, that could be used elsewhere, and this petition has been filed to convert it to a completely binding precedent by the hands of the US Supreme Court. The core reason for this action of review is to bring in efficiency in copyright implementation by ruling the 11^th Circuit’s decision as the law of the land. The critical need for public’s access to law needs to be ultimately recognized. A meaningful access for the purpose of public accountability, learning, teaching etc, is imperative and copyrighting the same would involve inclusion of subscription and other commercial mechanisms to access the content of law. “An intrinsically public domain material, which belongs to the public” cannot be allowed to be curbed from open access. Analyzing another jurisdiction, it is worthy to be noted that the Indian Supreme Court has also gone on to hold that court Judgments and orders are public documents and the text thereof cannot be monopolized by the instrument of Copyright. 

BATISTE v. MACKLEMORE COPYRIGHT INFRINGEMENT SUIT DISMISSED. in another music industry plagiarism case,  Paul Batiste of the Batiste Brothers Band had, in 2017, filed an infringement suit against Macklemore and Lewis, arguing that a number of Macklemore’s songs lincluding “Can’t Hold Us”, “Same Love”, and “Thrift Shop”  had (and in an unauthorized manner) copied and sampled certain original elements of eleven of his songs. Now in Louisiana a Federal Judge has reached a decision on the matter which  reinforces the test for determining copyright infringement in musical works - whilst applying the same to the facts of this case and ruling against infringement (Judge Martin L.C. Feldman in a summary decision). Judge Feldman reiterated that there are three elements that need to be fulfilled to determine copyright infringement in a musical work. These are: (i) Ownership of a valid copyright, (ii) factual copying and (iii) substantial similarity. Factual copying needs to be established through circumstantial evidence, wherein the factor of “access” (reasonable opportunity to view) to original works can be claimed while proving such infringement. In the case at hand, neither factual striking similarity was established nor was access proven satisfactorily for an action of infringement to succeed. No evidence which could show that the defendants had even heard of Batiste was adduced before the court. Mere wide dissemination does not fulfill the threshold required to prove conclusive possibility of access.

NORA ROBERTS ALLEGES MULTI-PLAGARISM AGAINST A BRAZILIAN INDEPENDENT AUTHOR  A copyright infringement case has been filed in the Rio Court by Nora Roberts on the issue of plagiarism. She has reportedly claimed 3,000 times the value of the highest sale of the books alleged to infringe written by  Cristiane Serruya. The court filing alleges that the infringing books to convey practically identical 'emotions' to Nora’s books and that Serruya has committed “multi-plagiarism” on a “rare and scandalous” level. Nora has released a statement saying, “If you take my work, you will pay for it!” Further, Roberts has acknowledged the issue of funds to pursue such infringement litigation by writers who have their works plagiarized and profited upon.  The position of the defendant has constantly been that she is innocent of the allegations say8ng that  she uses ghostwriters for her books and further a plagiarism checker tool - to check against such unauthorized copying. The decision is pending.

FORTNITE SUED AGAIN!! And thus time it's for some signature “Phone It In” moves:  saxophonist Leo Pellegrino has alleged Fortnite to have misappropriated his likeness without permission involving a saxophone dance in the game. He has alleged that Epic (Fortnite developers) has, without permission, used certain moves which have become inseperable from his persona. The claim focuses on  the likeness of the character performing such moves in the game with Leo including the use of “outward pointing feet” used specifically by Pellegrino while playing the Saxophone and the striking similarity with the pose and the 'passion'. It must be noted that Fortnite has also been sued with respect to certain dance moves which has brought in the contentious issue of whether dance moves can be copyrighted. Another instance wherein Fortnite has been in news is the claim of royalties being brought in by the music industry against this inline gaming platform, wherein a virtual concert of DJ Marshmellow was shown. Post the EU Copyright Directive being signed, tech companies are to seek licenses from music industry before hosting any of their content online. Such digital royalty claims of usage of music in gaming platforms has been made possible post the signing of the new EU Copyright provisions.

LA LIGA SUCCESSFUL IN BLOCKING PIRATE CHANNELS IN DENMARK Spain's premier football league La Liga had brought a claim in Denmark to block certain channels which played and streamed its matches in a pirated format. This landmark decision  brings in protection to right holders in a market with suffers from ongoing and widespread piracy issues. Further, acknowledging the risk of getting malware infected due to such illegal streaming, the court, not only concerned its decision with the right holders but also the users of such services. La Liga’s audiovisual director was quoted commenting this to be an important step to fight the peril of broadcast piracy which is rampant around the world, and the commercial gain developed by such illegal advertising on these services, resulting in heavy earnings for those behind developing these unauthorized and illegal methods. He said: “Audio-visual Piracy is illegal and has significant consequences, not only for us, but for the league and the future of the game, so we are very happy that Rettigheds Alliancen has joined us in the fight. We know that Denmark is at the forefront of the development of digital tools to fight online piracy, and this is a big issue for us. We are now looking forward to seeing the effects of the blocking and hope that they can serve as an example for other countries, so that we can stand together in the fight against online piracy.”

INTERNET STREAMING, OUTSIDE THE PURVIEW OF STATUTORY LICENSING UNDER SECTION 31D OF THE COPYRIGHT ACT, IN INDIA. The Bombay High Court has reached an important decision that may well effect the development of the music streaming market in India - not least as Spotify seeks to expand in the Indian market. In the matter of Tips Industries Limited vs Wynk Music Ltd, the single bench of Justice S.J. Kathawalla in the Bombay High Court (judgement dated April 23, 2019) ruled upon many issues with respect to internet streaming on OTT platforms and its implications on the statutory licensing provided under Section 31D of the Indian Copyright Act. Section 31D of the Copyright provides for a statutory licensing scheme, as per which any ‘broadcasting organisation’ desirous of ‘communicating to the public’ any sound recording or its underlying works, may obtain a statutory license to do so, provided they pay the royalty rates to the copyright owners. The core highlight of the judgment includes the point that the services rendered by the Defendants through their download and purchase features amount to commercial rental / sale of the Plaintiff’s (Tips) copyrighted sound recordings. Since the right to commercially rent and sell a sound recording is a separate and distinct right as against the right to communicate the sound recording to the public, the Defendants cannot exercise a Statutory License under Section 31-D in respect of the download and purchase features provided by them. Had the Legislature intended for a statutory license under the said Section 31-D to encompass the sale and/or commercial rental as contemplated under Section 14(1)(e)(ii), The legislature would have employed express language to that effect in Section 31-D of the Act. The absence of such language or even mention of sale and/or commercial rental in Section 31-D of the Act makes the intention of the Legislature crystal clear to exclude the commercial rental/sale of sound recordings from the purview of Section 31-D. It is therefore evident that Section 31-D contemplates communication to the public by way of the broadcast of sound recordings only, and not their commercial rental and/or sale. The grant of Statutory The license under Section 31-D is only restricted to radio and television broadcasting organizations and the Defendants’ on-demand streaming services offered through the internet as an “internet broadcasting organization” do not fall within the purview of Section 31-D of the Act. More here. 

This update from the 1709 Blog intern Akshat Agrawal