Showing posts with label transformative use. Show all posts
Showing posts with label transformative use. Show all posts

Monday, 2 December 2019

THE COPYKAT


Kylie Minogue’s fashion range loses copyright It claim

Australian pop star Kylie Minogue is associated with a range of interior design and bed linen products, produced by Ashley Wilde. In a recent action, this design company went on to sue BCPL, a brand which sells bed linen products, primarily owned by another well-known model and TV star Caprice Bourret. The subject of the litigation was with respect to a duvet cover (the cotton shell which covers a comforter) and a matching runner. The allegations of similarity were concerned with the following factual determinations (as reported in the IPKat):

- The choice of a the pattern of scallop-style pleats in repeating horizontal rows; 
- The relative size of each pleat; 
- The relative spacing between each pleat; and
- The relative spacing between each horizontal row. 

Justice Melissa Clarke firstly went on to establish that a presumption of copying will exist if the works are primarily substantially similar and there is proof of access to the prior work. However, she then went on to reiterate the rule that the question of copying concerns with the quality of the work, and not merely the quantity taken, and whether the intellectual expression and creation of the author is appropriated or not. It is not just the similarities but also the differences which need to be looked at, and the copyright needs to be determined as a whole. The differences cannot be downplayed, as was done in the case at hand.

These jurisprudential notes in combination with the determination that scallop-style pleats were relatively commonplace in the fashion industry and could not be monopolized due to it being a concept (Idea-Expression dichotomy), led the court to reject a finding of presumption of copying. Apart from this, the court found that the expression of such scallop-style pleats in the conflicting designs, in fact, encompassed sufficient differences and were not in any case substantially or extensively similar to bring in a case for the presumption of copying. The differences in the method of pleating the scallops, the number of pleats in the pleated scallops, the size of the pleated scallops and the shape of the pleated scallops, the number of repeated scallop motifs were rendered to be sufficient to avoid a claim for infringement and to establish an original distinct expression of a design made out of the concept of a scallop-styled pleat. In lieu of the same, the court rejected a finding of copyright infringement and Ashley Wilde was unsuccessful in the action.

Interestingly, this case reinforces the importance of factual evaluation and the fine line between inspiration and infringement especially in the fashion industry, to recognize the multitude of possibilities of expression in a copyrightable design and its dominion, and balance the interests of the copyright holder and the general public (other designers in the fashion industry) accordingly. It reinforces the principle of creative freedom and the leeway of experimentation on similar ideas, provided in copyright, to account for designs, which may prima facie seem similar intuitively, but are much more detailed and different when such details are analyzed. The judgment can be found here.

Versace sues Fashion Nova for infringement of the gold “Barocco” print

In yet another infringement action concerning the Fashion industry, Italian brand Versace has sued Fashion Nova to seek a remedy and redress with respect to the copyright infringement of its apparel involving the black and gold “Barocco-57” print, pop-hearts design the “Jungle print dress” that was worn by Jennifer Lopez in the Grammy Award functions. This case has been lodged in the US District Court for the Central District of California, as reported by the World IP review. The claim of Versace revolves around the principle of Fashion Nova deliberately riding on the popularity and renown of Versace’s signature designs and its valuable goodwill and business reputation, to make profits. (Trademark logic?) The use has been alleged to be within the content, text, and meta-tags of the Fashion Nova website, as well as on social media websites, wherein “Fashion Nova” results pop-up upon a search of Versace products, due to this infringing action, resulting in alleged misdirection of consumers. A notice has already served and despite the same, Fashion Nova has not allegedly taken down these infringing designs which are substantially similar to Versace’s copyrights, from its web-portal. Interestingly Kim Kardashian took to twitter to address this claim by tweeting:  It’s devastating to see these fashion companies rip off designs that have taken the blood, sweat, and tears of true designers who have put their all into their own original ideas.”

David Gilmour involved in a legal battle for the 2015 solo-single “Rattle That Lock”.

In a suit for copyright infringement, Pink Floyd’s iconic guitarist David Gilmour has been sued by French jingle composer MichaĆ«l Boumendil, over a four-note jingle, which Gilmour was first exposed to at a French train station and was instantly charmed. According to reports, he had approached Boumendil to seek a license to use the music in a song, wherein the agreement stipulated co-authorship for the resultant song.  In a suit filed by Boumendil it is alleged alleged that instead of replaying the notes (as was stipulated in the licensing contract), Gilmour went on to interpolate the exact recorded notes. The claimant sought damages worth 450,000 Euros. When the court had to decide upon this, it was noted by the court that this infringement suit was a year after the stipulated release of the song, and hence was time-barred. But Boumendil has now more recently appealed this decision and is seeking damages for the alleged unlicensed use of this jingle, and a breach of the contract between the parties.

Jay-Z sues Australian retailer over lyrics

American rapper Jay-Z (Shawn Carter) has filed a copyright infringement lawsuit against Australian Jessica Chiha and her business “The Little Homie”, which sells hip-hop inspired clothing and apparel. The subject matter of infringement refers to the book “AB to Jay-Z” which has been created by this online retail business, to teach kids alphabets in terms of names and pictures of rappers. Since then, their imagery and names have been expended to use in a coloring book as well as clothing retail options. After being served with a legal notice, the company has maintained its defence of transformative use and fair use and has resisted the claim, which has consequently landed them in court. As far as the claim over lyrics is concerned, the lawsuit refers to the famous quote by Jay- Z: “If you’re having girl problems, I feel bad for you son, I got 99 problems but a bitch ain’t one”, which has allegedly been appropriated by the Children’s book, as it displays on its front page a quote on the same lines, which states: “If you’re having alphabet problems, I feel bad for son, I got 99 problems but my ABC’s ain’t one.”

These actions and use of the image, likeness, and quotes purported by Jay-Z have been alleged to be “a deliberate attempt to trade-off the reputation and goodwill of Jay-Z for own commercial gain”. As reported by Pitchfork, there have been multiple cease and desist notices sent to Chiha, however this retail business is adamant of this use being fair.

Can a claim of fair and transformative use subsist on the facts? It seems so - however, the main issue before the court would be the task to balance the transformative use factor with the commercial advantage factor of fair use and the acknowledgment of a violation of the publicity rights of Jay-Z. Use in clothing, unauthoriasedly, raises a direct claim under violation of Publicity rights, but as far as the use of likeness in the Children’s book is concerned, there is no direct commercial benefit accruing out of the use of the likeness of Jay-Z and it can be argued to be merely incidental and a transformative use of his identity. It will be interesting to see how this case shapes up in court.

Indian Production House Yash Raj Films booked for an alleged failure of royalty payments to the tune of 100 Crores to Authors

The Indian Performing Rights Society, which represents composers, lyricists and music producers has accused Bollywood production house YRF of unauthorisedly collecting and not distributing royalties worth 100 crores, legitimately belonging to authors  as reported by the IPRMENT law blogA First Information Report has been filed before the Mumbai Police Economic Offences Wing. Further, an allegation of pressurising artists to enter into signing illegal agreements has also been raised. The FIR claims that while YRF managed to extract royalties from TV broadcast platforms, it hasn’t been able to collect the same from telecoms, radio stations and music streaming platforms to pay up. The core issue involved here is the non-membership of YRF in the IPRS collecting society, which is one of the major copyright societies indulging in revenue distribution. The lacunae is primarily because of the Indian Copyright Act as although it intends that royalties must be paid to the authors via a copyright society, it does not explicitly state so. The Copyright Act does not take into account the following questions, as reported in the IPRMENT law blog:

Who is supposed to pay these non-assignable and non-waivable royalties?
Who is supposed to collect these royalties?
Are authors and the assignee of their works compulsorily required to become members of a registered copyright society to claim royalties or can they continue dealing in their own works without becoming members 

Hence, due to no statutory compulsion to act through a copyright society, such dubious practices are being entered into by the Production houses, which have allegedly denied authors their claim to royalty. Recently, music composer/singer duo Salim-Sulaiman came forward in a journalistic report to state that they haven’t indulged in a work-based relationship with YRF in the last 4 years due to continuous non-payment of royalties, in spite of having allegedly collected the same. Such practices deny the authors their inalienable right to reproduction and right to receive royalty, on such assignments and the prime reason for the same is the lacunae and vagueness in the drafting of the Copyright Act of India.

 $1 Billion Lawsuit on Spotify by PRO Music Rights and Sosa Entertainment


A law suit has been filed by PRO Music Rights, LLC and SOSA Entertainment, LLC alleging that Spotify failed to pay royalties on over 550,000,000 streams. Pro music rights intends to ask a Florida based jury at the trial to hold Spotify responsible for its conduct and alleged infringement, and unfair and deceptive trade practices. The case was filed on 25th November at the United States District Court for the Middle District of Florida. The suit involves an allegation of removal of content for anti-competitive reasons, engaging in unfair deceptive and business practices and inter alia refusing to pay royalties - and publicly performing songs without a licence. According to the petition, Spotify removed the Plaintiff's profile without an advance notice without ever informing the claimant why these songs were removed. The Plaintiff's songs had genuine 550,000,000 streams before being removed an  was one of the most popular playlists. The petition further states:

As it knows and claims to do, Spotify is required to remit royalty payments to Plaintiffs for the streams of their songs and to obtain public performance licenses for the public performance of songs on its platform. To date, however, Spotify has not paid full royalties for the 550,000,000+ streams of Plaintiffs’ songs on Spotify’s service”

It has also been alleged that the motive for removal of all these songs is linked with its equity deal with Music and Entertainments Rights Licensing Independent Network in order to pressurize MERLIN to terminate its contract with SOSA, as high stream counts from unknown independent acts do not generate close to the same revenue for Spotify from advertisements, as compared to mainstream acts, and do not offset the royalties owed. Further, it was alleged that 99% of the users responsible for the 550,000,000 streams of Sosa’s songs were ad-supported users rather that subscription users. Is this as a result of such discrimination on the part of Spotify against less established artists?  the Plaintiff thinks so and says it's musicians have suffered economic loss. This has been alleged to be an anti-competitive practice to oust independent musicians from the music market, merely due to less revenue for streaming services. In continuation, Sosa has also alleged that”

Spotify continues to unilaterally profit from Plaintiffs’ music; despite purporting to remove Plaintiffs’ content, some of the Plaintiffs’ music continues to stream without license via Spotify-generated playlist(s), and without any compensation made to copyright holders, in blatant disregard of the Copyright Act. Spotify is legally obligated to pay royalties for streaming music.”

This battle will be interesting for the survival and growth of the Independent music circuit. The math can be done here:

1)    Mainstream artists are targeted by companies with a higher marketing budget, due  to the expectation of more number of streams and popularity, resulting in more consequent advertisements (of the company). These companies offer large sums to Spotify, in lieu of the advertisements – which gives Spotify its revenue 

2)    Independent Artists and non-mainstream music artists have a low budget advertisement attached to them, which provides less money per stream for Spotify, due to budget advertisement companies being associated therein (less revenue per stream as compared to mainstream songs).

3)   Royalties to be paid in lieu of streaming is equal because of it being a statutory amount and does not in any way vary upon the artist being mainstream or not. 

4)  This leads Spotify to a situation that with  the enhanced popularity and number of streams of non-mainstream and indie music as well (550,000,000), they get less revenue for a large number of streams (as compared to what they would have gotten, had the streams been on mainstream songs), and they have to pay equivalent royalties to both mainstream as well as indie artists.

5)  The ultimate conclusion out of this analysis is the low earning on the part of Spotify through indie artists, and equal royalties to be paid, which has led them to oust them from the market, in order to attract more streams for mainstream artists only which would lead to a higher ad revenue per stream for Spotify (when balanced with the amount of royalty to be paid, which remains constant).

At the core of this is the allegation that Spotify is contributing to the already persisting anti-competitive and unequal structure of distribution of music, wherein mainstream artists who have more funds to produce and market the music and are signed to a bigger record label are able to flourish, whereas independent artists are left marginalised - and fail to get fair compensation - or reach.

From the point of view of a musician, this is a sad state of affairs, where mere economic benefit is being preferred on the cost of access of more genuine and original content to the public, which was, in fact, the goal of copyright in the first place. This arguably de-incentives the musicians (especially independent ones) from creating music (to some extent),  due to the lack of marketing capability (although money is not the sole incentive), and is not competitive or ethical practice. True or not - does that matter in a court of law?

It will be interesting to see how the court approaches this and if it enters into this socio-economic aspect of survival of musicians who do not have much access to funds to market their music and content.

Plaintiff’s petition can be read here.

This Copykat by Akshat Agrawal

Wednesday, 13 March 2019

THE COPYKAT

China Press Publication Radio Film and Television Journal has reported that China generated more than 2.35 million new registrations for copyright works in 2018, up 17.48 percent than the previous year. . Among the registrations, artworks accounted for 42.2 percent of the total copyright work registrations, followed by photography and written works, based on data released by the National Copyright Administration. The number of copyright work registrations in Beijing topped the country in 2018, with 919,543 registrations, or 39.1 percent of the total number, followed by Jiangsu and Shanghai, with 302,175 and 261,642 copyright work registrations, respectively. Statistics showed that China received nearly 3.46 million new copyright registrations including works and software in 2018, an increase of 25.8 percent year on year. 

ReDigi has confirmed that it plans to take its long running copyright infringement case to the US Supreme Court, but it has asked for a little more time to prepare its formal submission to American’s most senior judges. The ReDigi company operated a marketplace where people could sell their "second-hand" MP3s. No one is the slightest bit interested in reselling MP3s online any more, of course, but they were in 2012 when EMI first sued the company. At the heart of this case is the question of whether or not the so called ‘first sale doctrine’ – the principle under US copyright law that says you can resell a CD without the copyright owner’s permission – should also apply to digital content. The courts sided with the record industry in 2013 and then again on appeal last year  with the Second Circuit Court of Appeals holding that the unapproved resale of MP3s online constituted copyright infringement. Meanwhile ReDigi suspended its operations and sought chapter eleven bankruptcy protection.  

A children’s book called “Oh, the Places You’ll Boldly Go!” based on the famous Dr. Seuss story “Oh, the Places You’ll Go” isn’t infringing on the famous tale’s copyright, or the rights in Star Trek, a federal court has ruled. Judge Sammartino in California said in a summary judgment that  "although Defendants certainly borrowed from Go!, at times liberally, the elements borrowed were always adapted or transformed. The Court therefore concludes, as it did previously that Defendants’ work, while commercial, is highly transformative,” 

MEPs have been urged to adopt the EU’s somewhat controversial Copyright Directive when it comes up for final its vote in plenary at the end of this month. The plea comes in a letter from 227 organisations representing authors, composers, writers, journalists, performers and others working in all artistic fields, news agencies, book, press and music publishers, audiovisual and independent music producers. A spokesman for the informal alliance, #Yes2copyright, said, “This is a historical opportunity. We need an internet that is fair and sustainable for all. This is why we urge EU policymakers to adopt the directive quickly, as agreed in trilogue negotiations.” The Directive has already been agreed by all three EU political institutions, but must pass a final vote by a full meeting of the European Parliament at the end of this month before member states will have two years to create national legislation to match.

Following on from our last CopyKat, Take-Two Interactive has reached a settlement with a Grand Theft Auto V cheat developer who it sued for copyright infringement last summer. TorrentFreak reports that defendant Erik Cameron has admitted to copyright infringement, breach of the game's End User License Agreement, and profiting off his violations of the law, and will pay Take-Two an undisclosed sum. Cameron will also be permanently prohibited from developing, promoting, or using any software program that alters Take-Two's owned software in any way, creating derivative works, or otherwise encouraging others to follow in his footsteps.  

Japan has shelved a bill with stricter copyright controls and increased penalties for infringement, after academics, manga artists and fans all aired concerned over the proposals.  With piracy on the increase, the Japanese government had sought to broaden the criminalization of downloads of copyrighted materials from videos and music to cover all types of content. But academics, manga artist groups and others have said the envisioned expansion to also cover materials including manga, computer games and literary pieces could affect freedom of expression by fans and hinder legitimate activities, such as research. “We have yet to eliminate the worries of both copyright holders and (internet) users,” said House of Councilors member Masaaki Akaike, who heads the ruling Liberal Democratic Party  culture panel,  adding  “We should work on it anew.”  

Tuesday, 2 October 2018

Fair use or plagiarism? A new appropriation dispute


Top: Hank Willis Thomas' photo 
Bottom: Graeme Williams’ work
Appropriation art and copyright have not always been best friends. Now, a new dispute may lie on the horizon, as Angela Saltarelli (Chiomenti) explains.

Here's what Angela writes:

South African photographer Graeme Williams was astounded to discover that a whited-out version of one of his famous photographs was recently exhibited during the last Johannesburg art fair by the Goodman Gallery.  

Hank Willis Thomas - an appropriation artist using images of advertising campaigns or of civil rights protests -  realized a black and white version of Williams’ coloured photograph taken in 1991, in Thokoza township in Johannesburg, without asking for any authorization to the author of said photograph.

The original photograph represents one of the symbol of the end of apartheid: a group of children were portrayed taunting some white policemen few weeks after the release from prison of Nelson Mandela, kicking up their legs in a playful adaptation of the toyi-toyi, the south African liberation movement march. The iconic nature of this photograph is recognized anywhere and was also used by Barack Obama during his 2008 political campaign.

Williams claims that Thomas’ derivative work constitutes plagiarism, as there are minimal differences between the two works: the new image is black and white, and the policemen are lightened so that they can be seen by the public only when standing directly in front of the work. Moreover, the new work would not have a different meaning compared to his photograph, the use would be only appropriative rather than transformative.

On the other side, Thomas has defended his piece raising questions on the ownership of Williams’ work, which was taken by the south African photographer without any authorization by the people depicted, implying that even these people were exploited by Williams without consent. Furthermore, Thomas said he was interested with this artwork in questioning how much an artist shall change a work to create a new original work of art and in exploring this grey area of copyright.

Finally, the Goodman Gallery has declared not to be able to determine whether the new work is sufficiently transformative or not. In any case, Thomas’ work was removed from display and the artist agreed not to show it any more in public, offering Williams to keep it for one year and to discuss about it after this period.

Williams refused to take Thomas’ work, finding all proposed amicable solutions unsatisfactory, considering that the price for Thomas’ piece was $36,000, whereas his photograph was never sold for more than $1,200.

If this dispute was brought to court, the outcome would be quite uncertain as the criteria on determining fair use were often subject to different interpretations by the courts as shown in recent cases as: Cariou vs Prince, Graham vs Prince or Bauret vs Koons.

Thursday, 3 August 2017

THE COPYKAT

Linns Stamp News tell us that a federal judge has ordered a dispute over the "Lady Liberty" stamp that the United States Postal Service mistakenly produced in 2010 to go to trial in September. Federal Claims Court Judge Eric G. Bruggink rejected motions by both the Postal Service and sculptor Robert S. Davidson that would have effectively ended a four-year-old lawsuit over a stamp that was based on a replica of the Statue of Liberty. Davidson created the Lady Liberty replica, which stands outside the New York, New York Hotel & Casino in Las Vegas. The postal official who oversaw stamp designs later said he would have never selected that image if he had realised it featured a replica - which also would have protection as a  “sculptural work”  under the US Copyright Act with the Judge noting “There is no question that plaintiff was invoking the Statue of Liberty, in his replica, but he argues that his intent was not merely to copy and that the replica is unique.” The error was identified by Sunipix, a stock photo agency in Texas. Wikipedia says ten and a half billion of the stamps were produced.


A photographer is suing consumer products giant Procter & Gamble in the US, accusing the corporation and the world’s largest advertiser of not paying her for photos that have appeared on Olay packaging and marketing materials used around the world. The Cincinnati Enquirer reports that 46-year-old Annette Navarro has spent over a decade photographing models who have graced the packaging of a number of notable consumer products. Her photos have also been used by P&G $2 billion Olay skin care brand for 14 years. Navarro is accusing P&G of using her photos beyond the scope of her license, which limited usage to within North American and a 3 year period. 


And more photography: US District Judge Sidney H. Stein has just ruled that the case between photographer Donald Graham and 'appropriation artist' Richard Prince can proceed. Graham took issue with Prince for using his images in an exhibition of re-appropriated Instagram images at the Gagosian Gallery in NYC - and Graham never gave any permission for his image titled “Rastafarian Smoking a Joint” to be used. Many comment that any 'transformation' is minimal (at best), being little more than enlarged Instagram screenshots. Judge Stein said “The primary image in both works is the photograph itself. Prince has not materially altered the composition, presentation, scale, color palette and media originally used by Graham.” Prince escaped relatively unscathed in his last battle, Cariou v Prince, with the appellate court saying "Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five".

And finally on photography, a New York federal court judge handed a photographer a mixed result when the court dismissed her copyright infringement claim but allowed her Digital Millennium Copyright Act (DMCA) allegations to move forward in a dispute that began on Instagram. The case involves photojournalist Matilde Gattoni, based in Italy, who photographed a colourful building in Essaouira, Morocco, that included the figure of a woman in a long dress walking down an empty street. In August 2016, she placed the photograph—which has a pending copyright registration in the United States—on her Instagram page, accompanied by a copyright notice. Gattoni claims that one month later, clothing retailer Tibi copied and cropped the photograph (removing the woman) and placed this image on the company’s social media page without licensing the image or obtaining her consent to use it. But US copyright had only been applied for, not registered, so could there actually be an infringement?  There's an excellent article from Jesse M. Brody of Manatt Phelps & Phillips LLP here on Lexology that analyses this and the DMCA claim. Well worth a read.


A New York judge has dismissed a lawsuit brought the estate of promoter Sid Bernstein, who staged the Beatles’ legendary 1965 show at Shea Stadium. The Estate had argued that band’s Apple Corps had infringed on the copyright of Sid Bernstein Presents by including footage from the concert in Ron Howard's  documentary film Eight Days a Week - the Touring Years which was released in September 2016.  The Estate's action sought ownership (or joint ownership) of the master tapes and copyright by Bernstein’s company, Sid Bernstein Presents, arguing that, “[w]ithout Sid, the mastermind of the event, this film would never have been made”. In a ruling on the 26th July, Judge George B. Daniels, in the US District Court for Southern New York, said the company could not claim ownership of the footage as Bernstein did not himself film the concert, instead signing over the rights to do so to Nems. Judge Daniels held:  “The relevant legal question is not the extent to which Bernstein contributed to or financed the 1965 concert .... [R]ather, it is the extent to which he ‘provided the impetus for’ and invested in a copyrightable work" and “The complaint and relevant contracts clearly refute any such claim by Bernstein. By the express terms of the Nems-Bernstein contract, Bernstein had no control over the filming of the concert” and that the contract signed in 1965 “reserves no rights whatsoever for Bernstein in any filming or recording of the concert.”

Billboard reports that Beyonce's legal team is going to have to work a little harder to defeat a copyright infringement lawsuit over her hit "Formation." Spoken word from the late Anthony Barre (also known as Messy Mya) features on the song, and his estate sued in February for copyright infringement, (there are other claims). Barre's voice is heard saying “What happened at the New Orleans,” “Bitch, I’m back by popular demand” and "Oh yeah baby. I like that.” His sister, Angel Barre, claims the samples infringe the rights in two works of her brother's performance art, "A 27 Piece Huh?" and "Booking the Hoes from New Wildings." Louisiana federal judge Judge Nannette Jolivette Brownon denied Beyonce's motion to dismiss the copyright claim on fair use grounds and noted that Barre had made a case that Beyonce's use of the clips was not transformative and that, although the samples were short, it was a "qualitatively significant" use". Judge Nannette Jolivette didn't t agree with Barre's argument that the fair use doctrine doesn't apply to the digital sampling of a sound recording. Judge Brown also denied the motion to dismiss Barre's false endorsement and Louisiana Unfair Trade Practices Act claims, but did dismiss a claim for unjust enrichment.


Wednesday, 14 June 2017

Drake's transformation prevails in plagiarism claim

Drake, along with his record labels and music publishers, have won a difficult lawsuit that had claimed his song “Pound Cake/Paris Morton Music 2” which featured on the 2013 album “Nothing Was the Same” sampled a 1982 spoken-word recording titled the “Jimmy Smith Rap.

The use complained of is where Deake used a cut down version of lyrics spoken by jazz musician James Oscar Smith which originally read “Jazz is the only real music that’s gonna last ..... All that other bulls**t is here today and gone tomorrow. But jazz was, is and always will be.” Drake's version is “Only real music’s gonna last .... All that other bulls**t is here today and gone tomorrow.”

Drake's record label engaged  a music licensing company to obtain all necessary licenses. They obtained a license for the  use of the sound recording of “Jimmy Smith Rap” but clearing the composition became problematic. The Estate maintained it would not have granted a license for the composition because JSmith “wasn’t a fan of hip hop.”

District Court judge William H. Pauley III has now isssued a summary judgment for the defendants and against the Estate of James Oscar Smith, and found that there is no liability for copyright infringement.  Judge Pauley found that the key phrase in Smith’s song “is an unequivocal statement on the primacy of jazz over all other forms of popular music” and that Drake’s use (by contrast) “transforms Jimmy Smith’s brazen dismissal of all non-jazz music into a statement that ‘real music’ with no qualifiers, is ‘the only thing that’s gonna last.'” Thus the judge adds, the purpose is “sharply different” from the original artist’s and is transformative, and “This is precisely the type of use that ‘adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning or message”.

Judge Pauley also noted that whilst in many cases of parody the average observer would need to identify the target of derision, it’s not a universal prerequisite for a finding of transformative use,  commenting that Drake used Smith’s work as “raw material” for new work. The judge also comments that the use of “Jimmy Smith Rap” was transformative regardless of whether the average listener would identify the source and comprehend Drake’s purpose.

Original work here https://www.youtube.com/watch?v=pdbvOqeBkq8

http://variety.com/2017/music/news/drake-sampling-lawsuit-jimmy-smith-copyright-jazz-1202449097/

See also Abilene Music, Inc. v. Sony Music Entertainment, Inc., 320 F. Supp. 2d 84 http://law.justia.com/cases/federal/district-courts/FSupp2/320/84/2468802/ (The 'Wondeful World' case )

and Acuff Rose Music v Campbell (1994) https://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc.  (the Pretty Woman case)

Thursday, 26 September 2013

It's time for CJEU fun again

Awww ... Two new copyright cases
to think (and dream) about
1709 Blog readers who also follow The IPKat will be already aware that there are two new exciting copyright references for a preliminary ruling awaiting a decision of the Court of Justice of the European Union (CJEU). 

The first reference is from Austria and concerns jurisdiction in online infringement cases. Case C-441/13 PEZ EJDUK is in fact all about interpretation of Article 5(3) of the Brussels I Regulation and what "where the place where the harmful event occurred or may occur" may possibly mean in the context of websites which host allegedly infringing materials (a photograph in this case). 

The question awaiting an answer is the following: 

'Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [the Brussels I regulation] to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed in that a photograph was kept accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled [Or. 2], there is jurisdiction only

- in the Member State in which the alleged infringer is established; and

- in the Member State(s) to which the website, according to its content, is directed?' [also known as 'intention to target', on which see - among other things - the recent Opinion of Advocate General JƤƤskinen in Case C-170/12 Pinckney (here, here, here)] 

As recalled by helpful and learned copyright resource Cyberleagle by 1709 Blog friend and Bird&Bird partner Graham Smith, this is just the latest in a series of recent references concerning internet jurisdiction. 

************************************

The second reference is Case C-419/13 ART & ALLPOSTERS INTERNATIONAL. This is a Dutch case concerning (alleged) transformative uses of copyright-protected works, seeking clarification about exhaustion of the right of distribution. 

Allposters used the works of rightholders represented by Dutch collecting society Pictoright by altering and reproducing them on canvas. Allposters argues that the works were significantly altered and disseminated to the public in a different form; therefore Allposters did not infringe the copyright of the rightholders (for an accurate synopsis see EU Law Radar ).

The Dutch Supreme Court has referred the following question to the CJEU:

'Does Article 4 [concerning the distribution right] of Directive 2001/29/EC (the Copyright Directive) govern the answer to the question, whether the distribution right of a copyright-protected work which has been sold and delivered within the EEA with the consent of the rightholder where the reproduction has been subsequently altered in respect of its form and is again brought into circulation?'

Sunday, 22 September 2013

US Post Office to Pay $685,000 in Damages

Gaylord's sculpture entitled The Column
The US Post Office has been ordered to pay a historic $685,000 to Frank Gaylord after it issued a stamp that infringed copyright in Gaylord’s war memorial statues.  

In 1990 Vermont-based sculptor, Frank Gaylord, was selected to create a memorial to veterans of the Korean War. The resulting monument is made up of 19 life size, stainless steel, statues of Korean War soldiers, and is situated in Washington D.C’s West Potomac Park.

The US Post Office stamp
In 2002 the US Post Office issued a stamp to commemorate the 50th anniversary of the Korean War. The stamp features a photograph of Gaylord’s statues in winter, surrounded by snow. The Post Office offered Gaylord no compensation, causing Gaylord to file a copyright suit in 2008.
 
The Federal Court of Claims initially held the re-use was a non-infringing, fair use. In particular, the court believed the Post Office’s use was transformative and unlikely to harm Gaylord’s market. The finding of fair use was reversed in 2010.
Frank Gaylord. Photo: Glenn Russell

The Federal Circuit Court of Appeals believed the use was not transformative as both works served the same purpose i.e. the commemoration of veterans. The decision was remanded to the Federal Court of Claims to determine the appropriate damage level.

On Friday, the court awarded the 88 year old Gaylord nearly $685,000. Previously the highest compensation the Post Office has paid an artist was $5000. The Post Office says it “respectfully disagrees” with the decision and is considering whether to appeal. For Westlaw users the judgement is number 5290438.