THE COPYKAT

Hello to Robo Lawyer - created to make hyperlinking easy - and the website describes Robo as follows: "​I am Robo Lawyer programmed to help reduce legal risks related to publishing hyperlinks on the Internet. I am currently programmed to help you if you are from European Union. I know the EU law and the rulings of the Court of Justice of the EU, especially the ruling in the famous GS Media case." Robo lives as a chatbot in Messenger, so you need a Facebook account if you fancy a chat. The creator is Tomasz Zaleski (Eversheds Sutherland Poland). 

Songwriter? Lyricist? Need some help with copyright? Going for a Song tells the story of Tina and Ben, a music composer and a lyricist who create an original song and discuss how to market it. This new tool helps musicians learn how UK copyright law regulates different aspects of the journey of a song, from its creation to its distribution.

A motion to dismiss has been filed by attorneys representing Cher in the copyright infringement case filed against her by graphic designer Moshik Nadav concerning the artwork and in particular the graphics on the cover of Cher's Closer To The Truth release. The 2013 album was Cher’s 25th studio release. Nadav’s suit, in the Southern District of New York, names Cher, Warner Bros. Records, a design company and the albums’ art and design director as defendants and seeks $5 million in damages. According to Nadav's complaint, two logos that appear on Cher's album infringe on the copyrights to his Paris and Paris Pro logos, which he claims were created using his typography, featuring “artistic elements, such as swashes having various thicknesses, end drops and unique lettering.” Section 202.1 of the US Copyright Act, which gives examples of works not copyrightable, including “mere variations of typographic ornamentation, lettering or coloring" but here Nadav says Cher's work is substantially similar to his own logos - and he has obtained copyright registrations for those - but this looks like an uphill battle. More here.

Alleged KickassTorrents owner Artem Vaulin's defence team have said he will appeal last week's extradition ruling. Lead counsel Ira Rothken stresses that the refusal of the Polish court to grant bail and the unprecedented allegations violate the human rights of his client. The team is confident that they can book a positive outcome on all fronts. Last week a Polish court ruled that Vaulin could be extradited to the United States.

California’s Supreme Court is set to decide if the state’s copyright law protects the performing right as part of the sound recording copyright - an important question as federal copyright law only protects sound recordings released post 1972. It was in California where the Turtles secured their big win, with a court there ruling that there was a general performing right for sound recordings, a landmark ruling that forced both Sirius and Pandora to agree settlements with the wider record industry, especially once a New York court indicated there was likely a performing right under that state’s copyright law as well - but that new York decision has now been overturned on appeal.  Now the Nine Circuit Court Of Appeal has asked the California's Supreme Court to rule on the matter once and for all. Requesting the opinion the Ninth Circuit said this “is warranted if there is no controlling precedent and the California Supreme Court’s decision could determine the outcome of a matter pending in our court” and “This appeal not only meets both criteria, but also presents an issue of significant public importance”. The Californian court does not have to accept the question.

One of the more incredible allegations about Prenda Law, the copyright-trolling operation that sued people for downloading movies online, was that the lawyers behind it might have created and uploaded some of the porn in question simply as a way to catch more offenders. Now ArtsTechnica tells us this may well be true, and despite repeated denials by the Preda lawyers, in a new update it seems they were indeed making movies:  "Steele pled guilty in Minnesota to federal charges of "conspiracy to commit mail and wire fraud" and to money laundering. And guess what? In 2011, Team Prenda had in fact become porn producers (They continued to have other "real" clients at that time as well.)" and "On at least three separate occasions in Chicago, Miami, and Las Vegas, Steele and [Paul] Hansmeier... contracted with adult film actresses and produced multiple short pornographic films" 

Torrentfreak also updates us on trolls, saying "A copyright troll that terrorized service providers over alleged copyright infringement is set to forfeit the very assets that made its entire campaign possible. After losing an aggressive lawsuit against Giganews, Perfect 10's multi-million dollar bill will now be satisfied by the Usenet provider liquidating the adult publisher's intellectual property".  Perfect 10 was originally an adult entertainment magazine that also operated a subscription website featuring images of women. In November 2014, the U.S. District Court for the Central District of California found that Giganews was not liable for the infringing activities of its users. Perfect 10 was ordered to pay Giganews $5.6m in attorney’s fees and costs and this was upheld on appeal.  

Florida appellate court to hear Turtles' appeal

The Florida Supreme Court will hear arguments beginning on April 6th in the copyright-infringement lawsuit filed by founding members of the 1960s rock group the Turtles against SiriusXM satellite radio.

Flo & Eddie Inc., the California-based company whose principals are Turtles vocalists Mark Volman and Howard Kaylan, filed the lawsuit in 2013 alleging copyright infringement involving music made prior to 1972. Flo & Eddie have won suits against SiriusXM in California and New York (the later subsequently over turned) but a federal district court judge in Florida sided in 2015 with the satellite broadcaster, finding nothing in Florida statutes or common law dealt with copyrights of recordings made before 1972 (and the federal Copyright Act).

Judge Darrin Gayle said that "Florida is different"  (from New York and California) saying "There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts." Declining to fill the void in the state's legislation the Judge said "If this Court adopts Flo & Eddie’s position, it would be creating a new property right in Florida as opposed to interpreting the law" adding that it's the job of the Florida state legislature to address the issue, and that a decision to plug the gap would bring up a host of other issues such as resolving who sets and administers licensing rates, who owns sound recordings for dead artists and what exceptions there might be to a public performance right.

The case went to the 11th U.S. Circuit Court of Appeals, which asked the Florida Supreme Court to take up the issues involving state law. 

In December 2016, a majority in New York's highest court ruled that Sirius XM did not have to get permission, or pay compensation, to the owners of pre-1972 music recordings in order to play their tracks in the case brought by the owners of The Turtle's 1967 hit "Happy Together."  The Court of Appeals determined that New York common law does not recognise a "public performance right" in their decision in Flo & Eddie v. Sirius XM Radio. The Court of Appeals' ruling comes in response to a certified question from the U.S. Court of Appeals for the Second Circuit, which inquired in April whether New York's common law provides copyright protections for recordings not covered by federal law. Southern District Judge Colleen McMahon had denied Sirius' motion for summary judgment in 2014, finding that New York common law did provide a public-right performance 

That ruling came ust weeks after a settlement between the Turtles members and SiriusXM in a related lawsuit in California. U.S. District Judge Phillip Gutierrez ruled against SiriusXM in 2014, holding that California state law, as it is written, gives the master recording owner exclusive performance rights.

http://www.newsherald.com/news/20170201/supreme-court-to-hear-turtles-copyright-case

http://the1709blog.blogspot.co.uk/2016/12/sirius-xm-triumph-in-new-york-appellate.html

http://the1709blog.blogspot.co.uk/2015/06/siriusxm-prevail-in-pre-1972-claim-in.html

Sirius XM triumph in New York appellate court

New York's highest court has ruled that Sirius XM does not have to get permission, or pay compensation, to the owners of pre-1972 music recordings in order to play their tracks in the case brought by the owners of The Turtle's 1967 hit "Happy Together." 

The Court of Appeals determined that New York common law does not recognise a "public performance right" in their decision in Flo & Eddie v. Sirius XM Radio. The Court of Appeals' ruling comes in response to a certified question from the U.S. Court of Appeals for the Second Circuit, which inquired in April whether New York's common law provides copyright protections for recordings not covered by federal law. Southern District Judge Colleen McMahon had denied Sirius' motion for summary judgment in 2014, finding that New York common law did provide a public-right performance 

The ruling comes just weeks after a settlement between the Turtles members and SiriusXM in a related lawsuit in California. That settlement, which also covers class action claims on behalf of other performers, called for payouts of up to $99 million (an amount that is likely to be reduced as a result of  this ruling). U.S. District Judge Phillip Gutierrez ruled against SiriusXM in 2014, holding that California state law, as it is written, gives the master recording owner exclusive performance rights.

In Florida a court found that there was no state law to protect pre-1972 recorded works.  U.S. District Judge Darrin Gayles ruled in favour of SiriusXM's saying he understood why his judicial colleagues in other states ruled differently, noting that California and New York are creative centres of culture, and laws have been enacted there to protect artistic rights, but that there was no legislation or case law supporting such a property right in Florida and nor would he create one saying that it must be the job of the Florida state legislature to address the issue, and that a decision to plug the gap would bring up a host of other issues such as resolving who sets and administers licensing rates, who owns sound recordings for dead artists and what exceptions there might be to a public performance right. 

In a similar approach, the New York Court of Appeals (in a split 4-2 decision) said that whilst it understood the anomalies in copyright laws, it should be up to Congress to define the public performance rights sought by creators of the Turtles' music, as it did for post-1972 recordings under the federal Copyright Act of 1976.

Judge Leslie Stein for the majority noted that the digital age, satellite technology and now the internet had allowed subscription music on-demand services such as Sirius to become lucrative and this has distorted the previous "symbiotic" relationship between artists and broadcasters, where it was advantageous to both sides to play music recordings publicly saying for the majority:

"Indeed, it would be illogical to conclude that the right of public performance would have existed for decades without the courts recognizing such a right as a matter of state common law, and in the absence of any artist or record company attempting to enforce that right in this state until now […]. Simply stated, New York’s common-law copyright has never recognized a right of public performance for pre-1972 sound recordings. Because the consequences of doing so could be extensive and far-reaching, and there are many competing interests at stake, which we are not equipped to address, we decline to create such a right for the first time now. Even the District Court here, while finding the existence of a common-law copyright of public performance in sound recordings, acknowledged that such a right was “unprecedented,” would upset settled expectations, and would “have significant economic consequences” … Under these circumstances, the recognition of such a right should be left to the legislature."

Stein was joined by Judges Eugene Pigott Jr., Eugene Fahey and Michael Garcia.

Judge Jenny Rivera wrote in a dissent that the common-law right of public performance in New York has always been recognised as a "broad and flexible" one that the court should now extend to the pre-1972 sound recordings in the new age of satellite broadcasting saying 

"I reject a parochialism that justifies turning a blind eye to the exploitative practices of today's music industry made possible by technological advances and that, as a consequence, excludes from our common-law copyright in sound recordings a quintessential property interest in the use of these works," 

Judge Sheila Abdus-Salaam joined in Judge Rivera's dissent. Chief Judge Janet DiFiore took no part in the decision.

However Judge Fahey wrote a concurring opinion in which he said he believed that the common-law right of public performance should apply to the on-demand services sold by Apple Music, Spotify, Rhapsody and Amazon's Music Unlimited where consumers hear one song at a time from massive catalogues without downloading the individual songs, as listeners can through iTunes. Fahey said, in his view, pre-1972 public performances are protected in such on-demand "rental or lease" use of the songs.

In a related but separate matter, Capitol Records (now part of the Universal Music Group) has said it will appeal to the Supreme Court of the United States to answer the questoin of whether 'safe harbor' provisions brought in by the Digital Millennium Copyright Act should apply to pre-1972 sound recordings. In June the Second Circuit court ruled in favour of the Vimeo, saying that exempting older recordings from the safe harbour principle would “defeat the very purpose Congress sought to achieve in passing [it]”. The Second Circuit then refused to rehear the case in August and now Capitol has filed papers with the Supreme Court. arguing that “Section 301(c) of the Copyright Act explicitly protects state law remedies for infringement of pre-72 sound recordings until February 2067”.

http://www.newyorklawjournal.com/this-weeks-news/id=1202775173003/Court-Rules-That-NY-Common-Law-Does-Not-Protect-Pre1972-Sound-Recordings?mcode=1202615036097&curindex=4

http://www.rollingstone.com/music/news/siriusxm-settles-turtles-copyright-lawsuit-for-99-million-w452890

http://fortune.com/2016/12/20/siriusxm-turtles-appeal/

http://www.completemusicupdate.com/article/capitol-takes-safe-harbour-on-pre-1972-recordings-case-to-supreme-court/

http://the1709blog.blogspot.co.uk/2014/09/1972-and-all-that-but-does-turtles-win.html

http://the1709blog.blogspot.co.uk/2015/06/siriusxm-prevail-in-pre-1972-claim-in.html

http://the1709blog.blogspot.co.uk/2013/08/turtles-probe-murky-soup-of-pre-1972-us.html

Turtles settle 'Pre-1972' case against Sirius XM

Members of 1960s rock group The Turtles have settled their action against Sirius XM in California over what the band claimed were unpaid royalties for the use of 'Pre 1972' copyrights. The terms of the settlement were not disclosed. The filing of settlement papers was noted by both The Hollywood Reporter and National Law Journal.

The Turtles

But in related news, New York’s highest court has now heard oral arguments in the case, which was brought by the owner of The Turtles’ 1967 hit song “Happy Together” against Sirius XM Radio. The issue at the heart of the case was  whether the copyright holders of recordings made before 1972 have a common law right to make radio stations and others pay for the use of the recordings (in the US, federal copyright law does not allow for the collection of what is called 'needletime' for post 1972 sound recordings. The lawsuit was filed by Flo & Eddie Inc., the company controlled by two founding members of the band that owns the rights to the recordings. Sirius XM argues it’s not required to pay royalties for recordings made before the federal Copyright Act was changed in 1972 to establish limited protections for recordings. The case was referred to the New York Court of Appeals from the federal appeals court.

In California US District Judge Philip Gutierrez had already ruled that Sirius was liable under state copyright law. Two former band members of The Turtles, working as "Flo & Eddie," were representing a class of thousands of owners of pre-1972 music recordings.

In another interesting development, a new case has arising involving royalties for the use of music by broadcasters (rather than sound recordings) which are payable in the USA and are collected by four collection societies. The two largest PROs representing the performing rights in songs – ASCAP and BMI – are regulated by so called 'consent decrees'.  However, there are also two other smaller performing rights organisations in the US – SESAC and the much newer and privately owned Global Music Rights – which sit outside the consent decrees. And now America’s newest performing rights organisation, Global Music Rights, is being sued by the US radio industry in a bid to force the rights agency to submit to independent arbitration to set the rates broadcasters must pay to play the songs it represents.

http://arstechnica.com/tech-policy/2016/11/just-before-trial-the-turtles-settle-copyright-suit-against-sirius-xm/

http://www.musiclawupdates.com/?p=5525

The CopyKat

Kim Davis, the county clerk in Kentucky who was jailed for five days for refusing to give marriage licenses to same-sex couples may now face a copyright lawsuit. At a post-release rally with Republican presidential candidate Mike Huckabee, the Survivor recording of "Eye of the Tiger" was played to 3,000 people —and this immediately produced a furious reaction from a band member. "NO! We did not grant Kim Davis any rights to use 'My Tune -The Eye Of The Tiger" wrote Survivor frontman Frankie Sullivan on the band's Facebook page. Sullivan had previously sued Newt Gingrich (the Republican politician and Speaker of the House of Representatives who was a Republican presidential hopeful) in 2012 for using "Eye of the Tiger" at one of his political events - the case was later settled.

The EFF have filed a friend-of-the-court brief in the Court of Appeals for the Ninth Circuit, arguing against a district court decision that upheld state law copyrights in pre-1972 sound recordings. The EFF recently filed a similar brief in the Second Circuit - both cases were victories for  Flo & Eddie, aka The Turtles (pictured right) who successfully persuaded district courts that state copyright law restricts public performances of pre-1972 sound recordings in their battle against SirusXM. A similar action in Florda failed - here the court found there was no state law to protect pre-1972 sound recordings. 

Now here's a thing - hackers targeting pirates: TorrentFreak reports that several prolific torrent uploaders have received an alarming message claiming to be from the legal department at major label Warner Music UK. The email accuses the user of copyright infringement and urges uploaders to delete their torrents and accounts, which some have done in response. However .... on closer inspection the threatening email appears to be fake say TorrentFreak, who received a full copy of the grammatically inept message which was sent to email addresses associated with the uploaders’ torrent site accounts - although how the sender accessed those addresses is unknown. A few weeks ago KickassTorrents warned its users against phishing attempts, in which malicious parties attempt to obtain the personal details of users.

On June 11, 2015, the Advocate-General Pedro Cruz Villalón delivered his Opinion in HP Belgium v. Reprobel now pending before the Court of Justice of the EU (CJEU, case C-572/13). This Opinion and the underlying case raise one important issue: Is it permissible for a national copyright law to allocate a portion of the fair compensation for reproductions exempted under Article 5(2)(a) and (b) of the 2001/29 Infosoc Directive directly to publishers, although they are not listed among the initial holders of the reproduction right under Article 2 of the Infosoc Directive? Now the European Copyright Society, as a group of academics concerned about the copyright reforms envisaged in the European Union as well as by the interpretation and development of the law by the CJEU, has shared its view on this matter of principle: And its ALL HERE!

Piracy is still a big issue in New Zealand, but the recorded music, film and TV industries say the process to hold infringers accountable is too lengthy and too costly. Just one complaint has been laid, and upheld with the Copyright Tribunal so far this year, compared with 4 last year and 18 in 2013. To successfully complete a complaint against someone allegedly illegally downloading, rights holders have to identify the illegal downloader and file a notice with their Internet Service Provider (ISP). The ISP then passes the notice to the account holder with each notice costing $25. Three notices are required within a 12-months before a complaint can be laid with the tribunal and pay a $200 fee. It's all too complex and too expensive say content owners.

WORDS - they are important - we all know that: Now TorrentFreak has published an interesting opinion piece from Rick Falkvinge (a founder of Sweden's Pirate Party) on how words are used in the debate about the remit and reach of copyright: One mistake that geeks and techies often make, but PR professionals and lobbyists never make, is the observation that words don’t just have a precise meaning – they also have a positive or negative chime to them. Therefore, lobbyists try very hard to establish a language where everything they want is described in words with a positive chime." and Rick makes the point "This is why I insist on calling governmentally-granted private monopolies that interfere with property rights “industrial protectionism” - this and and much more here.

And finally, what is said to be the USA's largest illegal music file-sharing site, Sharebeast.com, has been seized and shut down by the Federal Bureau of Investigation (FBI). A US Department of Justice (DOJ) domain seizure notice first appeared on Sharebeast.com on Friday September 11th. Visitors to the domain arwew now confronted by a notice which states that the FBI has taken control of the site 'pursuant to a seizure warrant issued by a United States District Court'. Sharebeast's related sites such as mp3pet.com and albumjams.com also display the notice. More on MBW here.

The CopyKat - that not quite so secret TPP Agreement is back in the news

China's copyright regulator has said that the online music copyright situation has improved since it ordered music providers to remove unlicensed songs in July. Music steaming services had removed more than 2.2 million unlicensed songs as of Friday, said the National Copyright Administration (NCA). Internet companies have also improved their efforts in copyright cooperation, said the NCA. However many commentators such as Billboard saying piracy remains a major issue saying "Well, that deadline has passed, and sites like VeryCD, which allows illegal downloads, and the popular QQ for streaming, are still up and running and still serving up artists like The Beatles". 

Torrent Freak have led with an article headlined "iTunes illegal under UK cpoyright law": TF reached out to the UK Intellectual Property Office, which provided some very clear answers on the recent decision in BASCA v Secretary of State for Innovation and Skills [2015] EWHC 1723 (Admin) saying: “It is now unlawful to make private copies of copyright works you own, without permission from the copyright holder – this includes format shifting from one medium to another,” a spokesperson informed us. The IPO specifically notes that copying a CD to an MP3 player is not permitted. TF says this  means that iTunes’ popular ripping feature, which Apple actively promotes during the software’s installation, is illegal.

The Trans Pacific Partnership Agreement (TPP) continues to attract interest and comment - almost all negative. The latest leaks have revealled that there is a widening disagreement between member nations on the deal’s 'draconian' copyright and intellectual property (IP) provisions which appears to be a split between the USA and almost all of the other 11 potential signatories on a number of copyright provisions. The 12-nation trade pact would put nearly 40 percent of global trade under a trade agreement aimed at spurring growth and closer trade ties between the Asia Pacific region and Western Hemisphere countries. The US's moves to extend the term of copyright beyond life of author plus 70 years is being resisted as are the text that allows authorities to seize and destroy equipment that infringe copyright, as well as “materials and implements relevant to the infringement” such as computers or servers that host such materials. The leak reveals that the U.S. is opposing a measure that would limit these laws to goods “predominantly” used in infringement, instead calling for the seizure and destruction of equipment that committed only 'minor infractions' of these laws according to the International Business Times. TechDirt takes a different tack, looking at the USA's resistance to 'fair use' provisions with the headline "Why Does The TPP Repeatedly Require Stronger Copyright, But When It Comes To Public Rights... Makes It Voluntary?" saying what the USTR is really proposing is a limit on fair use by proposing a rule that would act as a ceiling for the kind of fair use-like protections for the public and making any provisons (in effect) voluntary by using the qualifications that signatories 'shall endeavour' to bring in a fair use scheme - almost all other provisions in the next must be incorporated into signatnories' domestic laws. A Canadian perspective here.

The EFF say this: "For starters, countries are resisting U.S. negotiators' audacious proposal to distort trade secrets law into a weapon against hackers, journalists, and whistleblowers. There are two new proposals in this leaked text, one of which the U.S. itself supports, to allow countries to adopt a narrow safe harbor for whistleblowers in respect of information that exposes a violation of the law. But this is far from enough. The safe harbor isn't compulsory and it doesn't apply to leaks of information that are of vital public interest, but that don't expose illegality—such as the TPP text itself. Another important area of dissent from the U.S. negotiators' hard line appears in the Enforcement section of the IP chapter, in which every single country is now lined up against the U.S. in favor of a remedy for victims of wrongful copyright abuse" with the EFF posing the question "one has to ask why the U.S. administration wishes to prevent its trading partners from adopting a basic protection for victims of copyright trolls that already exists in U.S. law".

Those Turtles

The New York State Broadcasters Association has filed an amicus brief in the Second Circuit U.S. Court of Appeals in case betwewen sixties pop stars the Turtles (Flo & Eddie - Howard Kaylan and Mark Volman) and SiusXM, contesting the lower court's assertion in dicta that the performance rights being established under common law might apply to broadcast radio as well and  arguing that New York state law does not support a common law performance right in sound recordings and saying that upholding such rights would be "impractical and destructive."  "(T)he District Court’s sweeping alteration of the law is unsupported by prior case law, legislative history at the federal level, and the history of the recording and broadcasting industries in New York State," the NYSBA says, adding that "broadcast radio is fundamentally different from satellite radio; broadcast radio is not subscription based and has been a fixture in the music industry for decades.  In fact, broadcast radio is the very medium that made Respondent’s music famous by disseminating it to the public at large at no cost." The brief also argues that "the District Court fashioned a new common law performance right in sound recordings that heretofore never existed," the brief asserted that radio airplay sells music and that common law copyrights for sound recordings have never included performance rights but only against unauthorized reproduction.  And the brief argued that ruling to expand the imputed performance right would result in "financial distress for broadcasters, perverse incentives for artists, and uncertainty for everyone". More here and here. Having prevailed in Claifornia and New York in establishing that state laws protect the public performance of pre-1972 sound recording,  the litigants lost their claim for common law protection of pre-1972 sound recordings in Florida where the judge said no law existed to protect such rights and that the coirt was not disposed to create a new property right which is a matter of the legislature.

Ray Charles

And finally, the United States Court of Appeals for the Ninth Circuit has 'breathed new life' into a case highlighting an interesting intersection of the worlds of estate planning and copyright law. The case in question was initiated in 2012 by the Ray Charles Foundation against 7 of the musician’s 12 children, to block their attempted terminations of copyrights in 51 of Charles’ songs, including “I Got A Woman” and “Hallelujah, I Love Her So.” to get the return of the copyrights. The charitable Foundation was Charles’ sole heir and received the entirety of his estate, including the rights to receive royalties for his songs.  Charles' children, each got a trust worth $500,000 apiece shortly before his death and were required to sign written contracts effectively waiving their rights to any other inheritance. Regular readers will recall the termination right the children are attempting to assert is created under the U.S. Copyright Act of 1976 which allows an artist or his surviving heirs to terminate a copyright 35 years after it was granted.  The Ninth Circuit has now reversed the lower court’s dismissal of the Foundation claim, ruling that the foundation had standing since it receives royalties from the copyrights held by Warner/Chappell Music and so had  standing as a “real party in interest” ruling “It is undisputed that copyright ownership lies with Warner/Chappell, but just as the termination notices affect Warner/Chappell’s ownership of copyrights, they also directly affect the foundation’s right to royalties” and “The foundation is the sole recipient of royalties flowing from Charles’s copyright grants and effective termination would deprive it of the right to receive prospective royalties. We thus have little difficulty concluding that the foundation is litigating its own stake in this controversy.": (Ray Charles Foundation v. Raenee Robinson et al., case number 13-55421, in the U.S. Court of Appeals for the Ninth Circuit.). 

The CopyKat - gazing across the pond

A U.S. judge in California has allowed a class action lawsuit to proceed against satellite-radio company Sirius XM Holdings Inc over the payment of royalties for pre-1972 tracks. The ruling by U.S. District Judge Philip Gutierrez marks another win for members of the 1960s band the Turtles, known for the hit "Happy Together," and means the company could face claims from a broader group of artists. "Sirius XM treats every single owner of a pre-1972 song the same, namely it doesn't pay them, so it was appropriate for this court to grant class certification," said Henry Gradstein, attorney for Flo & Eddie Inc, a company controlled by founding Turtles members Howard Kaylan and Mark Volman. Sirius XM had argued against certification because it said damages would be difficult to calculate accurately for different members of the class. Gutierrez rejected that argument saying "a class action is superior to individual litigation to the fair and efficient adjudication of the present controversy." More here.

In Jamaica, The House of Representatives has started to debate amendments to the Copyright Act to strengthen legal protection for creators of intellectual property.  Investment, Industry and Commerce Minister, Anthony Hylton opened the debate on the Copyright (Amendment) Act, 2015. Among some of the proposed changes is the extension of the rights of companies to their work from 50 to 95 years. the proposed amendments also seek to provide certain exemptions that will give blind and visually impaired people greater access to copyrighted work. More from the Gleaner here.

Back in the USA, Techdirt has a fairly damning review of the actions of 'copyright troll' Malibu Media. Techdirt tells us "Federal district court judge Timothy Black appears to have had enough of Malibu Media and its copyright trolling practices. In two separate cases this week, Judge Black issued "orders to show cause" (more or less judicial language for "I think you've done something really bad and here's your last chance to show me otherwise) that go beyond the usual level of "Hey, it appears you've been acting naughty" to a full blown recitation of all of Malibu Media's questionable practices". Much more here.

The U.S. National Music Publishers' Association (NMPA) has filed a lawsuit in the US District Court for the Southern District of New York, alleging copyright infringement against Wolfgang’s Vault, which hosts many thousands of hours of live concert recordings which it disseminates on websites such as YouTube, Music Vault, Concert Vault and Daytrotter. The NMPA claims the online live concert audio and video platform does not have proper licensing in place for the content it hosts. The NMPA says "Hopefully, this lawsuit will bring publishers and many iconic songwriters the revenue they deserve for the use of their music.”


And finally, US music collection society BMI has published an analysis of Judge Louis L Stanton's recent decision in the rate court which raised the royalty Pandora had to pay BMI members, noting that the ruling judge clearly stated that, even though the directly negotiated deals between publishers and broadcasters were put on hold by the courts, the "direct licenses between Pandora and Sony and Universal for the 2014 calendar year were the best benchmarks because they are the most recent indices of competitive market rates". The big publishers wanted to pull from the collective licensing system in the USA for digital rights but the courts decided their relationship with ASCAP and BMI was 'all or nothing' - all in or all out. Judge Stanton decided that Pandora, the digital radio service, must pay 2.5 percent of its revenue to BMI, which collects public performance royalties on behalf of songwriters and publishers. More from the Hollywood Reporter here.

The CopyKat - The Sky's the limit in new football deal

Sky is paying £10 million per football match in a new deal with the England's Premier League. As the market digested the £4.176bn Sky is paying over three years for 126 live matches each year it seemed that many analysts think that Sky has overpaid. Sky’s share price fell by 5%, the biggest faller in the FTSE 100. The deal is an 83% increase over the cost of the existing contract and  includes a new Friday night slot.  BT’s shares, by contrast, were up by more than 4% in early trading on Wednesday. It will pay a total of £960m compared to £738m for two packages which would include 42 games each season, which is £7.6m on a per game basis, a rise of 18%. BT will show matches on Saturday evenings and and a handful of Sunday and midweek slots. The new contract which totals £5.136 billion begins in 2016. The combined figure for the 2013-2016 seasons was £3 billion, and for the 2010-2013 seasons was £1.8 billion.

Hmmmm - maybe ..........

Andrus Nomm, a 36 year old Estonian who lives in the Netherlands, and one of a small group of ex MegaUpload staffers who are facing extradition to the US for involvement in the running of the controversial file-transfer company, has pleaded guilty to criminal copyright infringement charges and has been sentenced to a year and a day in a U.S. prison. Nomm pleaded guilty in U.S. District Court for the Eastern District of Virginia to conspiracy to commit felony copyright infringement. District Judge Liam O’Grady accepted the guilty plea and imposed the sentence. Nomm is the first defendant to face charges in the U.S. in the Department of Justice’s long-running copyright infringement case against Megaupload, and Nomm voluntarily waived his right to fight extradition. The plea is “a significant step forward in the largest criminal copyright case in U.S. history,” Assistant Attorney General Leslie Caldwell said in a statement.  Speculation remains that he had done a deal with prosecutors, and will agree to testify against his former colleagues, including Kim Dotcom. Prosecutors agreed to a light sentence for his guilty plea, the DOJ said in a press release.The DOJ has accused the operators of Megaupload of running websites that wilfully reproduced and distributed movies and other products protected by copyright. In court papers, Nomm agreed with prosecutor estimates that the cost of Megaupload’s infringement was more than $400 million. The final indictment charged the defendants with conspiracy to commit racketeering, conspiracy to commit copyright infringement and conspiracy to commit money laundering. In addition, the defendants are charged with five counts of criminal copyright infringement and five counts of wire fraud. More on PCWorld here.

A New York federal judge has agreed to certify an interlocutory appeal by SiriusXM against the ruling that gave state copyright law protection to pre-1972 sound recordings.  As a result, the 2nd Circuit will now address the legal issue that copyrights in pre-1972 sound recordings didn't cover the right to exclusive public performance - a position successfully challenged by Turtle's musicians Flo & Eddie of The Turtles who filed filed 2013 lawsuits in California, Florida and New York.

And the latest skirmish in who pays what for streaming music in the U.S. has kicked of in a court in New York. Its a legal battle over what royalties the Pandora streaming service should pay American collecting society BMI. Against the backfrop of the major publishers seeking to withdraw their rights from BMI (And ASCAP) so they can licence streaming services direct, this case concerns the terms of BMI's current licence - Pandora wants to pay 1.75% of its revenue to BMI, while the collecting society wants 2.5%. Whilst Pandora wants to maintain the status quo, somewhat oddly given the background, BMI will argue that it should be able to increase the rate from 1.75% to approach the rates the majors have achieved.

The 9th U.S. Circuit Court of Appeals has reversed a decision in a copyright lawsuit against two members of the Four Seasons and developers of the group’s Tony Award winning biographical musical “Jersey Boys.” Donna Corbello sued Frankie Valli and fellow Four Seasons band member Robert Gaudio in 2011 for copyright infringement, claiming the musical was based in part on an unpublished autobiography of Four Seasons band member Thomas DeVito that her late husband Rex Woodard ghost-wrote. Although initially registered in DeVito's sole name, Corbello amended the US copyright registration so Woodard and Devito were co-owners. She said she deserved to share in the profits from the musical's success.  The appellate court said there was contradictory evidence about whether Valli and Gaudio executed an agreement with DeVito to produce the play in time to avoid termination of their ownership rights but that “a co-owner of a copyright must account to other co-owners for any profits he earns from licensing or use of the copyright.” The case will now be sent back to Nevada federal court to determine if the musical infringes the autobiography, and Corbello is entitled to royalties from the theatre show which has run since 2005 and the Clint Eastwood film of 2014. More here and in the Hollywood Reporter here.

The CopyKat - looking backwards, looking forwards

Jerry Fisher, a photographer in Sioux Falls South Dakota, was interested in 3D printing and 3D image capture. So he went and photographed two local bronze casts of Michelangelo statues, one of Moses which is on display at Augustana College and is co-owned by Augustana and the City of Sioux Falls, and another of David (yes, the really famous one!), which is in a local city park. He blogged about his efforts to take the photos and turn them into 3D printer plans but came up against Augustana College when he uploaded preliminary model of Moses onto socia media: Fisher was promptly asked to take the Moses model down by The College who felt they had propriety over the statues (and were 'uncomfortable' with this use) and (supposedly) that their legal depatrment was of the opinionn that the College owned copyright(s) in the statues, Now Public Knowledge has provided Fisher with the answer that he already suspected was true - the College does NOT own a copyright in a 16th century reproduction statue by Michelangelo (!) and Public Knowledge's Michael Weinberg explained "Let’s get one thing out of the way right now: Augustana College had no legal right or basis to threaten Fisher with the specter of infringement. There is no copyright protection for a sculpture that was created at the dawn of the 16th century by a sculptor who died 450 years ago. All of Michelangelo’s work is firmly in the public domain. If fact, copyright didn’t even exist during Michelangelo’s lifetime. From the moment he sculpted his Moses anyone could copy, remix, and build upon it for any reason, without having to ask permission."  More on 3DPrint.com here.

James Bond, 007, the iconic master spy, is now available for more dangerous assignments from Canadian writers, thanks to a copyright quirk that allows the writing and publication in Canada of original material based on Bond creator Ian Fleming’s work. The Canadian press have noted that as of January 1st this year, the original writings of Fleming, a former British naval intelligence agent who published 12 novels and nine stories featuring 007 between 1952 and 1966, have entered the public domain. That’s because Canada’s view of copyright is that it extends for 50 years after the death of a writer. Fleming died in 1964. More on the Globe & Mail here.

Silhouette comparisons of Jacobus Rentmeester's photo of Michael Jordan,
left, and Nike's Jumpman logo, right. Taken from court documents

Phortographer Jacobus Rentmeester is suing Nike in the federal court in Oregon for copyright infringement. Not only is he asking for profits associated with Nike's Jordan brand, which generated $3.2 billion in retail sales in 2014. He also is seeking to halt current sales and plans for the brand's future. Wow! Rentmeester says he staged and shot the picture of Michael Jordan in his Olympic warm-ups in 1984 for an issue of Life Magazine .As he was a freelancer, Rentmeester retained the rights to the copyright.  After it was published, Nike's Peter Moore, who designed the first Air Jordans, paid $150 for temporary use of Rentmeester's slides. Rentmeester says Nike then used his carefully choreographed picture using Jordan's left hand to 'slam dunk' the ball, to recreate the shot with Jordan in Bulls gear with the Chicago skyline in the background, but that it was essentially still his work and his suit says "Mr. Rentmeester created the pose, inspired by a ballet technique known as a 'grand jete,' a long horizontal jump during which a dancer performs splits in mid-air," the lawsuit says. "The pose, while conceived to make it appear that Mr. Jordan was in the process of a dunk, was not reflective of Mr. Jordan's natural jump or dunking style." This photo in turn was transfomed into a 'jumping' Jordan logo - and having threatened to sue Nike back in 1985 for the use of the Jordan logo based on his photo,  ESPN says that Rentmeester agreed Nike could use the logo for two years on billboards and posters in North America, for which he was paid $15,000. The Jumpman image also was featured as a tag on the Air Jordan I shoes, which sold for $65 a pair. In 2005 Nike withdrew an advert for its skateboard brand due to its similarity to artwork for a record by punk band Minor Threat.   This could be an interesting case - and reminds the CopyKat of the recent decision by Mr Justice Birss in Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1 where infringement was found, and the decision by a Korean appellate court that found that the 'recreation' of a photograph of a natural scene of pine trees on an island set against a skyline could not be infringement - although neither of those cases took 28 years to get to court ......

and to end ..... the 'pre-1972' story about copyright in sound recordings in the USA keeps on giving - and now Zenbu Magazines LLC,  the owner of recordings by Hot Tuna, New Riders of the Purple Sage and the Flying Burrito Brothers, is seeking class-action status for suits filed in U.S. District Court in Northern California, arguing that services such as Apple’s free iTunes Radio, and Sony’s Music Unlimited - which charge subscribers to access their service - have copied tens of thousands of  pre-1972 recordings onto their servers, transmitted them and performed them without seeking permission or paying performance royalties or licensing fees to the copyright owners. Rdio Inc and Google Play are also in the firing line.  Sound recordings weren’t brought under the protection of federal copyright law until 1972 so are protected by state laws and some services, notably SiriusXM, haven’t been paying performance royalties to artists to play these older works prompting claims from both artists (with Flo & Eddie from the Turtles leading the charge), record labels and collection society SoundExchange. More here.

The CopyKat - can Batman land a knockout punch for actors in copyright spat?

Those pesky Turtles

It seems SiriusXM has decided to rely on the 1940 case of  RCA v Whiteman et al to persuade  U.S. District Judge Colleen McMahon to reconsider her view that SiriusXM should be paying royalties from the broadcast of pre-1972 sound recordings by The Turtles and other acts. In that case Judge Learned Hand for the Second Circuit Court of Appeals wrote that state law should not let performers, once a phonograph was sold, control how and when it was played saying "we think that the “common-law property” in these performances ended with the sale of the records and that the restriction did not save it; and that if it did, the records themselves could not be clogged with a servitude." Judge McMahon says the 1940 case "might require her to rethink the ruling." More on the series of cases brought by the Turtles' Flo & Eddie here. 

Cisco Systems has said it will initiate a legal action against its fast growing rival, Arista Networks, accusing the company of patent and copyright infringement. Cisco has alleged that Arista has violated its patents and copyrights linked to its networking equipment. With copyright, Cisco's claims tha Arista has not only copied the Cisco product features, but has also apparently copied the language in Cisco's operating manuals - with typos and grammatical errors and all. More here.

Sol-seom by Michael Kenna

A case from South Korea where the plaintiff, Gallery Kong, a Korean image agency representing the interest of professional photographer Michael Kenna, has lost an appeal in a copyright infrngement lawsuit against Korean Air. The dispute concerns a photograph Kenna took of a small island in Gangwon Province under the title of “Island of Pine Trees.” He took the photo February 2007 while coming back from a photo shoot and spent about one and a half hours walking along the embankment to find an appropriate spot for shooting and produced the now famous black-and-white image called “Sol-seom” (meaning an island of pine trees). Korean Air used a similar colour image taken by an amateur photographer in a 2011 TV commercial - resulting in the lawsuit.

The Korean Air image

 

But it was not the same image - and the appellate court upheld the trial judge saying “Creative works using the same natural scenery like mountains, trees, and stones tend to be similar and thus the range of its creativeness is bound to be limited” and  “Given the fact that the object in the photograph is a natural one, a creativeness claim about it is weak and minor adjustments like taking a picture from a different angle can’t be taken as creative elements”. They also commented that the two pictures (one taken by Michael Kenna and the other by an amateur) are different in terms of volume and direction of light and the way the picture was taken. As to the claim by the plaintiff that the pictures are similar in their first impression, the judges answered, “The plaintiff’s work gives an impression of an Oriental ink-and-wash painting while the amateur’s exudes dynamism at the time of sunrise, which are fundamentally different.”

It's an interesting approach, but post the CJEU's Inforpaq decison it seems contrary to the decision made by Sir Colin Birss in Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1 -although here the claimant had manipulated a photograph of the House of Parliament to created a disticntive predominalty black and white image with a red routemaster bus on Westminster Bridge, which was then recreated by the defendant. Judge Birss (as he was then) considered the scope of photographic copyright by reference to three aspects which could be considered 'original': (i) Residing in specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on; (ii) Residing in the creation of the scene to be photographed; (iii) Deriving from being in the right place at the right time -  and with a nod to Infopaq - found for the claimant.

Cindy Lee Garcia, the actress who got death threats for her role in a trailer for the rather horrible Innocence of Muslims before taking action against Google to enforce a takedown notice - and convincing the majority of the 9th Circuit Court of Appeals (with the ruling from Chief Judge Alex Kozinski) that actors could have a copyright interest in their performances - has now attracted amici support from SAG-AFTRA, the Actors Equity Association, the American Federation of Musicians and other associated talent labour groups in the entertainment industry. They say that an actor can indeed have a copyrightable interest in a performance that's separate and apart from the interest anyone else holds in a motion picture. SAG-AFTRA and the other performer's guilds have argued for the originality of acting performances to be protected and say that a performance can be considered a pantomime or dramatic work under Section 102 of the U.S. Copyright Act. The brief argues that usually each actor adds something new to the character he or she performs saying "Google and its amici argue that the actor is basically a puppet — an automaton that merely does as the director instructs, reading the words the writer writes, depicted as the cinematographer sees him or her. But this is clearly not the case. The actor imbues the character with originality. Compare, for example, the various actors who have played the character Batman on the big screen — each actor brought something different to their performance of the character that, even when masked in full costume, Christian Bale’s performance stands apart from Michael Keaton’s, or Val Kilmer’s, or George Clooney’s or even Adam West’s television appearances. And the recent casting of Ben Affleck to play the role sparked considerable debate among fans of the character" and "While a director or cinematographer may help guide the actor’s performance, particularly in connection with stage directions, it is the actor’s own original expression that the audience sees" says the brief. Facebook, Twitter, IAC and Pinterest had all requested permission to file an amicus brief supporting Google's position. The dissenting judge in the 9th Circuit, Judge N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "An actor's performance, when fixed, is copyrightable if it evinces 'some minimal degree of creativity ... no matter how crude, humble or obvious it might be".  More in the Hollywood Reporter here

In Australia Attorney General George Brandis and Communications Minister Malcolm Turnbull have written to major copyright holders to urge them to come up with ways to discourage people from infringing copyright online. It's a carrot and stick approach with ministers saying that if the code of practice is not agreed with 120 days, the government will impose its own rules to crack down on illegal downloading and streaming of material on the internet. The planned code of practice “will include a process to notify consumers when a copyright breach has occurred and provide information on how they can gain access to legitimate content,” Mr Turnbull said. The Australian government will also amend the Copyright Act so copyright owners can seek a court order to block a website operated from overseas that Australians use to access content unlawfully although some commentators say the planned scheme would be open to abuse by content owners - Dr Matthew Rimmer told TechWorld "There are a number of whistleblowing sites that have a large number of copyright materials on them" adding  "A site like Wikileaks, for instance, could certainly be targeted under these laws." More here.

And finally an interesting case from the world of music sampling. A US Judge has thown out a case against rapper Jay Z over the use of just one word 'oh' - from a recording and song by Eddie Bo called The Hook & Slings  in his track and video Run This Town with the court saying "Run This Town bears very little and perhaps no similarity at all to Hook & Sling Part I. The melody and lyrics are entirely different. The lyrics do not contain the word “oh.” .. [It appears] only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener. "This does though seem to sidestep the ruling made in Westbound Records and Bridgeport Music v No Limit Films (September 2004) by the 6th Circuit Court of Appeals: here the court posed the question “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?” The Court’s answer to this was in the negative” and the court added “Get a license or do not sample – we do not see this as stifling creativity in any significant way” although that decision can istelf be contrasted by US District Judge Alison Nathan's more recent decision in the Tuf America v Beastie Boys case in 2013 .  More here. and more on music sampling here.