The CopyKat. Friday the 13th without Jason Voorhees, sounds like a nightmare!

The Flamingos

June was certainly an interesting month in the world of copyright, and below you will find a selection of stories that have caught the eye of our new intern Matthew Lingard in the past month, supplemented by a couple of notes from Ben Challis!

Readers of this Blog will be aware that  there have been actions in New York, Florida and California about the existance of a 'common law' or state law right in the performance of pre-1972 sound recordings in the United States. These have been met with mixed results: Whilst some class actions exist, the main players have been the former members of the 60s combo The Turtles (Flo & Eddie) against internet broadcaster SiriusXM. Flo & Eddie had some initial success, although lately the prevailing mood has been with Sirius XM rather than the rights holders: In a new case  a court has again agreed with a broadcaster, here iHeartMedia, who had argued that the plaintiffs, husband and wife team Arthur and Barbara Sheridan, who own a number of master recordings from the pre-1972 era of popular musicincluding those The Flamingos and J.B. Lenoir,  had failed to make out a viable claim under state laws - with the court finding “By selling such recordings, the Sheridans did not, and could not, divest the compositions of their copyright protection. But they could, and did, divest the recordings of performances of those compositions of common law copyright protection by selling those recordings to the public.” For Judge Tharp, the primary issue on copyright was whether Illinois provides copyright protection to pre-1972 recordings sold to the public without licenses for public performance. And to this question the court had a simple answer - in Illinois, publication “extinguishes the common law copyright”. Judge Tharp explained “Both the Illinois Supreme Court and the Seventh Circuit, however, have construed the concept of dedication to the public to include acts by which members of the public could access copies of the work — particularly through sales,” Tharp said. Judge Tharp dismissed all claims saying “the dismissal is based on the incurable lack of any state law cause of action, rather than curable pleading deficiencies, the dismissal is with prejudice.”More on the Cook County Record here.

30 leading content creators and on-demand entertainment companies from around the world have launched the Alliance for Creativity and Entertainment (ACE), a new global coalition dedicated to protecting the dynamic legal market for creative content and reducing online piracy. The worldwide members of ACE are Amazon, AMC Networks, BBC Worldwide, Bell Canada and Bell Media, Canal+ Group, CBS Corporation, Constantin Film, Foxtel, Grupo Globo, HBO, Hulu, Lionsgate, Metro-Goldwyn-Mayer (MGM), Millennium Media, NBCUniversal, Netflix, Paramount Pictures, SF Studios, Sky, Sony Pictures Entertainment, Star India, Studio Babelsberg, STX Entertainment, Telemundo, Televisa, Twentieth Century Fox, Univision Communications Inc., Village Roadshow, The Walt Disney Company, and Warner Bros. Entertainment Inc.

ASCAP, the American Society of Composers, Authors and Publishers, and YouTube have signed a voluntary multi-year agreement, effective immediately, for U.S. public performance rights and data collaboration. The mutual goal of this agreement is to work together to ensure that ASCAP members get paid more fairly and accurately for the use of their music on YouTube. The deal combines ASCAP’s database of 10.5 million musical works with YouTube’s data exchange to aid in identifying songwriter, composer and publisher works on YouTube. The agreement is retroactive, allowing ASCAP to be compensated for content streamed on YouTube since the company’s 2013 deal to operate on a compulsory interim license with ASCAP. ASCAP CEO Elizabeth Matthews said, “This agreement achieves two important ASCAP goals – it will yield substantially higher overall compensation for our members from YouTube and will continue to propel ASCAP’s ongoing transformation strategy to lead the industry toward more accurate and reliable data. The ultimate goal is to ensure that more money goes to the songwriters, composers and publishers whose creative works fuel the digital music economy.

Dead sure: Will Jason Voorhees file an amicus brief?

The ongoing legal battle between Victor Miller, the original screenplay writer of Friday the 13th, and Horror Inc/Sean Cunningham continues to rumble on. Miller is seeking to terminate the grant of his rights in the script to recover ownership of the franchise but faces opposition from Cunningham, who directed and produced the first film and produced a number of further films. Miller is trying to use the provision in US copyright law that allows authors to terminate a grant of rights and reclaim ownership, giving him back Friday the 13th. Meanwhile, Cunningham and Co. are saying that Miller's screenplay was a work-made-for-hire, which invalidates any right he has to claim ownership in this case. Is there a settlement is sight? Its a complex case, not least as after the original film, a series of eleven more films followed and these in turn developed Jason Voorhees- now the main (much loved?) character in the franchise. Therei s also a television show, novels, comic books, video games, and tie‑in merchandise. Miller's attorney Marc Toberoff told The Hollywood Reporter: “Whereas Miller will thereby recover the U.S. copyright to his original film treatment and screenplay this does not prevent the continued exploitation by Plaintiffs or their licensees of prior derivative works, including the 1980 film and its many sequels; it solely relates to new derivative works after the effective 2018 termination date. Furthermore, as the U.S. Copyright Act has no extra-territorial application, the foreign rights to Miller’s screenplay remain with Plaintiffs or their licensees”.  Matthew adds: In simple terms this suggests that Miller will retain ownership of the concepts that were present in the original screenplay. As Jason Voorhees as he is currently portrayed is a relatively new addition to the franchise, Cunningham et all would retain the rights to utilise his character. Therefore we could see the scary possibility of Friday the 13th Films in the US that don’t feature Jason in addition to films in the same franchise made for outside the US that do. It is highly doubtful that a major studio is going to roll the dice on a film that has to be effectively rewritten dependant on the jurisdiction of release. Though the Friday the 13th films are a franchise that still draws fans, they are not significant in number enough to justify it. Until then horror fans will have to suffer without another Friday the 13th film.

When a group of museums and researchers in the Netherlands unveiled a portrait entitled The Next Rembrandt, it was something of a tease to the art world. It wasn’t a long lost painting - but a new artwork generated by a computer that had analysed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn. We've had monkeys taking photos - now theconversation.com asks "Should robot artists be given copyright protection?". 

Do robots dream of electric sheep?

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.