DCMA abuse results in $25,000 bill

The reckless glory of charging in .....

In our CopyKat of the 4th March 2015 we alerted 1709 readers of the mistaken and misguided attempts by Germany's Total Wipes Music Group to remove entirely legal content published by the likes Walmart, Ikea, Fair Trade USA and Dunkin Donuts using the DMCA takedown procedure. Now it seems there might be some real remedies for those at the receiving end of fraudulent and disingenuous DMCA takedowns after WordPress owner Automattic scored what seems to be a notable court victory. 

The case relates to an article and blog by U.K. based Oliver Hotham, a student, journalist and blogger who in 2013 published an interview with the anti gay-rights group called Straight Pride U.K.  Straight Pride "believes that the tide of Gay rights has gone too far, and that now heterosexuals have become the oppressed minority".

The organisation had answered some of Hotham’s questions by sending him a "press release" (which Hotham said he had to amend to correct appalling spelling and grammatical mistakes) but after some publicity, Straight Pride’s press officer, one Nick Steiner, seemingly decided that the Group didn’t now want their views to be known and requested that the article be removed. Hotham refused to delete the article which prompted Straight Pride to threaten and then file a takedown notice with Wordpress. The claim appeared to be based around the fact the Group felt they owned the copyright in their press release and this would prevent a journalist using that to answer questions which he had posed the Group and which prompted the very same release to be sent back to him. Hotham subsequently accused Wordpress of allowing Straight Pride UK to censors his work.  This Blog covered that curious tale here. 

But Hotham may have been a bit quick in criticising Wordpress as it transpired that owner Automattic subsequently decided to bring two actions under s512(f) of the DMCA for bogus DMCA notices and Automattic filed two separate lawsuits seeking damages against third parties for "knowingly materially misrepresenting" a case of copyright infringement against two Wordpress blogs: The first involved an attempt to remove a series of articles on the RetractionWatch site, run by Ivan Oransky and Adam Marcus, that were critical of cancer researcher and physician Anil Potti, who at the centre of a medical research scandal. 

The second of the lawsuits was aimed at Straight Pride U.K.’s press officer, Nick Steiner. Despite Stiener's domicile, given the fact that Automattic is headquartered in the U.S., and the law in question only applies to the U.S.,  Automattic filed their suits in California

..... May not always be the best idea 

And now United States District Judge Phyllis J. Hamilton has issued her ruling as, awarding Hotham $960 for “work and time,” $1,800 to Automattic’s employees for “time spent,” and $22,264 to cover Automattic’s attorney fees.

It may be a phyrric victory as Steiner has been untraceable, and the main Straight Pride U.K. site is no longer active (and in fact closed down a couple of years ago when we first covered this story, when the website suddenly seemed to be mysteriously undergoing 'reconstructive surgery'). But since Automattic's avowed intention was to "step up and protect freedom of expression and fight back against DMCA abuse",  the fact it may prove difficult to collect the sums awarded may not be that important.  “Good laws become bad when people abuse them” said Automattic founder Matt Mullenweg, adding "And this was always the main purpose of pursuing this case — to stop people abusing a well-meaning law."

Judge Hamilton wrote: The report and recommendation was filed on October 6, 2014. During the intervening time, plaintiffs Automattic, Inc. (“Automattic”) and Oliver Hotham (“Hotham”) have been attempting to serve defendant Nick Steiner (who resides in the United Kingdom) with a copy of the report and recommendation, but have to date been unsuccessful. 

“We tried to track down Nick Steiner, but didn’t succeed,” said Paul Sieminski, General Counsel at Automattic, in a statement to VentureBeat. “We’re disappointed by that and by the fact that he’ll probably never pay the judgement. So DMCA abuse may go unpunished this time. But, we’re heartened that our case makes some good new law for future cases. There’s very little case law in this area, and previously *no* case law about what damages were available if a plaintiff were to win. It’s important here that the court held that we could recover attorneys’ fees and costs of suit, which were by far the biggest piece of damages.”

Sieminski added: “We wanted to see how these cases played out first,” he said. “The lawsuits were very time consuming and expensive to bring, and Automattic will likely never collect on the judgment. This case also sets the precedent that Automattic will stand up for our users, and fight back against DMCA abuse. Hopefully that, along with the rule that victims can collect damages (especially costly attorney’s fees), may cause future DMCA abusers to think twice before they pull the same stunt.”

http://venturebeat.com/2015/03/09/wordpress-wins-in-court-over-fraudulent-copyright-takedown-notices/

Images:  The Relief of the Light Brigade by Richard Caton Woodville (1856-1927) and Balaclava by Elizabeth Thompson, Lady Butler (1846-1933):

Blurred Lines - whilst we wait for the Jury to give it up ...........

Robin Thicke’s hit, Blurred Lines, has caused controversy not only for its lyrics, but also for its musical provenance after Marvin Gaye’s children alleged that Blurred Lines infringed copyright in Marvin Gaye’s Got To Give It Up resulting in a trial before the Californian District Court. As readers may recall the litigation arose after Pharrell Williams, Robin Thicke and Clifford Harris, Jr., pre-emptively sought declaratory relief that Blurred Lines did not infringe copyright in Gaye’s Got To Give It Up, following accusations by the Gaye family of unlawful similarities between the two works.

Now a jury must decide.

In their opening statements, both attorneys used exhibits on the first day of trial. Thicke’s attorney Howard E. King told the jury in his opening statement: “We're going to show you what you already know: that no one owns a genre or a style or a groove. To be inspired by Marvin Gaye is an honorable thing” and played the “Blurred Lines” video, first telling panellists that there were two versions produced. Earlier, Gaye family lawyer Richard S. Busch told the panel that the two songs are “very similar and, at some points, identical,” and that Thicke and Williams admitted in interviews that “Got to Give It Up” was the template for “Blurred Lines”. Busch played a “mash-up” of a segment of Gaye’s “Got to Give It Up” vocals placed over a portion of the “Blurred Lines” melody, played by an electronic keyboard — in an attempt to demonstrate how similar the two elements were. Thicke, facing away from the jury, mouthed the words, “No way,” and shook his head.

The Gaye’s expert musicologist had studied the sheet music and sound recordings of the two works and identified eight “ substantially similar” features which “ surpass the realm of generic coincidence”. The Gayes argued that it was improbable that a third-party work would contain all of these features in a “ similar constellation” – and that those similarities in Blurred Lines must therefore be indicative of unlawful copying.

U.S. District Judge John A Kronstadt told attorneys for both sides that they would have three days each to present their cases before the jury. The case began with testimony from Thicke and this primarily suggested that whilst there may be similarities in chord sequences between the two songs, those are just chord sequences that appear in lots of pop records.

Thicke treated the jury to a medley of several song. Thicke used an electronic keyboard to sing along to a short mix of tunes that included U2's  "With or Without You," Alphaville's "Forever Young," Bob Marley's "No Woman, No Cry," Michael Jackson's "Man In The Mirror" and The Beatles' "Let it Be" to demonstrate  that songs with little in common can be seamlessly stitched together - and to undermine the Gaye's 'mash up' of "Blurred Lines" and "Got to Give it Up," played to the court during the first day of the copyright infringement trial. Attorneys for Marvin Gaye's three surviving adult children hoped to use the mash-up to show that "Blurred Lines" is a rip-off of the Motown soul singer's 1977 track.  In response to Thicke's evidence, Busch went through a list of structural similarities between 'Blurred Lines' and 'Got To Give It Up', all of which Thicke said were just "standard formats", although when put on the spot he did struggle to name many other songs that employed said standards.

According to the federal copyright trial, the two sides have agreed on an exact figure of $16,675,690 in profits from the song. Frankie and Nona Gaye had tallied the alleged damages at approximately $40 million - including a claimed $4 million from 50 percent of the publishing earnings of Blurred Lines and the Gayes are seeking damages for a reduction of the fair market value of the worth of licensing Got to Give It Up and they are also targeting touring money too, with about $11 million apparently attributable to the song's success.

The Gaye family also claim that Thicke and his estranged wife Paula Patton's co-written track Love After War plagiarised their father's song After the Dance. That song, according to testimony, brought home $895,374 in profits.

Despite an earlier indication from the trial judge that the case must focus on the song and not the sound recordng of Gaye's classic, the Gaye family's attorney  Richard Busch had continued to argue that 'Got To Give It Up' composition is represented by the recording and thus this should be at the heart of the case, and, if jurors conclude that elements of that recording are directly replicated in 'Blurred Lines', that must constitute copyright infringement. Busch complained that King was trying to confuse the jury by repeatedly declaring that the sound recording of 'Got To Give It Up' is owned by the Motown label and not the Gaye family. In a new motion to the court,  Busch said that the Gaye family had never claimed to own the sound recording, and this was just an attempt by King to confuse the jury over the distinction between the copyright in the sound recording itself, and the copyright in the song as captured in the sound recording, saying: "The Gaye Parties have never claimed ownership of the Motown sound recordings, but the Thicke parties have committed copyright infringement by copying the musical composition as embodied in those sound recordings. The jury simply will not understand that fine distinction unless specifically instructed. [King's comments are] confusing, wrong, and entirely prejudicial" and "The sound recording is not irrelevant, as has been continually stated by the Thicke parties during the trial, and the jury is being confused and will likely believe, unless this matter is clarified, that the Gayes have no rights in the musical composition as embodied in such recording. This will further reinforce the improper remarks by the Thicke parties noted above, and will continue to prejudice the Gaye parties. These blurred lines must be sharpened and focused".

Thicke had  cited "Got to Give it Up" as an inspiration in interviews after the single's release. But in a deposition, Thicke said he overplayed his part in the creation of the song and was drunk and on Vicodin when it was recorded. Pharrell Williams said in deposition two days before Thicke's that he had composed the melody and written the lyrics for the hit, and that Thicke had 'embellished' the origins of the song. Thicke and co-writers Pharrell Williams and rapper TI deny copying the song.  

Pharrell Williams

The court then heard testimony from Pharrell Williams who explained the process of creating "Blurred Lines" over the course of one night at a recording studio.

Williams confirmed Robin Thicke's own testimony that it was Williams who primarily composed the later song. The 41-year-old Williams testified that Marvin Gaye and 70s soul were part of the musical milieu in which he grew up but that he'd never seek out to "take something of someone else's when you love him." Williams said after the song was released, he saw similarities between "Blurred Lines" and Gaye's work but said that wasn't a conscious part of his creative process.

Richard S. Busch, who represents the Gaye family, asked Williams whether he felt "Blurred Lines" captured the feel of the era in which Gaye recorded. "Feel," Williams responded. "Not infringed."

In closing argumets Busch said “This is the last place the Gaye family want to be" adding  “Marvin Gaye left his songs to his children,” he said. “They’re here protecting his legacy.” Busch argued that Williams and Thicke “created a song from ‘Got to Give It Up’ and in doing so copied ‘Got to Give It Up.’ We’re asking justice for the Gaye family. Is there anything wrong with that?”

Howard King opened his final argument by telling jurors that his clients prohibited him “from saying anything negative about Marvin Gaye or his legacy.” King said the lawsuit stems from a “mistake” by the late singer’s ex- wife, Jan Gaye, who compared the feel and ambience of the two recordings rather than the sheet music — which the judge ruled is the central issue in the case. “Any of us are free to build on ‘Got to Give It Up’ — as long as we don’t copy the notes of ‘Got to Give It Up,”‘ the attorney said. “The Gaye family doesn’t own a genre or a groove.”

The eight-member civil jury will resume deliberations this Tuesday.

http://reason.com/blog/2015/03/05/pharrell-williams-testifies-in-blurred-l

http://abcnews.go.com/Entertainment/wireStory/jury-resumes-deliberations-blurred-lines-copyright-case-29443199

http://ipkitten.blogspot.co.uk/2015/02/blurred-lines-sound-alike-litigation-in.html 

http://mynewsla.com/hollywood/2015/02/24/jury-chosen-copyright-suit-robin-thicke-blurred-lines/ 

Weatherley welcomes review of online copyright sanctions in the UK

Mike Weatherley

Mike Weatherley MP has welcome the UK's Intellectual Property Office's report into criminal penalties for copyright crimes. Weatherley had highlighted the disparity between penalties for offline and online copyright infringement, with copyright crimes leading to up to ten years custody for physical piracy - but a maximum of two years if the crime takes place online. The IPO has confirmed this and has now suggested that UK copyright law should be amended so that serious online copyright infringement is treated in a similar way to offline activities that those activities result in similar levels of harm to copyright owners. Responding to Weatherley, who had previously been Prime Minister David Cameron's advisor on IP, IP Minister Baroness Lucy Neville-Rolfe wrote: "I am writing to update you on the study commissioned by the Intellectual Property Office into criminal sanctions available for online copyright offences. I know that you have taken a keen interest in this matter and that you have pressed for action to be taken to address what you felt was an anomaly in the level of penalties available for online copyright offences" adding "Given the uncertainty surrounding the potential impact brought by the increase to custodial sentences, the Government agreed to commission an independent review of the issue. In assessing the need to amend legislation, researchers have since analysed a range of a conviction data, consulted with a range of stakeholders, and considered the impact of recent interventions in this area" although she then added "The report points towards there being some logic to increasing custodial sentences for serious online copyright offences. However it does emphasise the need for appropriate safeguards to ensure ordinary members of the public, whose copying is not motivated by criminal intent, are not inadvertently caught by any amended provision".

Welcoming the IPO's report, Weatherley told reporters: "It is encouraging that evidence shows the need for legislation to change in order to harmonise penalties for physical and online offences. Bringing about this change has required significant pressure on Government, but I am pleased that this report once again entrenches the fact that the UK is leading the way on IP enforcement".

Weatherley went on to say: "I hope that the Government after the next election will ensure that the recommendations in the report are adopted and that overdue changes in legislation are on the horizon. Additionally, I believe that the introduction of an IP Director General would hugely benefit the UK and be an important figure for international IP collaboration".

Copydan and fair compensation for multifunctional media: CJEU rules

The Court of Justice of the European Union (CJEU) yesterday ruled in Case C‑463/12 Copydan Båndkopi v Nokia Danmark A/S in the latest in a series of responses to requests for preliminary rulings conernning private copying levies. This ruling, in response to a reference from the Danish Østre Landsret back in October 2012, is a long one; it has however been covered in exemplary fashion on the IPKat weblog by Tom Ohta, here.

The national proceedings involve an action brought by rights-holders' body Copydan Båndkopi against Nokia for payment of a private copying levy in respect of memory cards imported into Denmark. In short, the CJEU considered fair compensation in the context of multifunctional media. It also looked at the distinction between media and components in the application of the private copying levy and the prospect of there being an exemption from payment on the basis that the prejudice to rights-holders might be minimal. The judgment reviews earlier CJEU case law including C-467/08 Padawan , C-521/11 Amazon.com and C-425/12 ACI Adam.

Dentist Claiming to Own Copyright in Patient’s Negative Comments about Her Misused Copyright Law

Ben mentioned yesterday in his post this case about a dentist using copyright to suppress speech. Going to the dentist is not particularly pleasant, but, at least, one does not usually expect to have to consult a copyright attorney before sitting in the chair.

However, patients of a Manhattan dentist had to sign, before being able to receive any treatment, including emergency treatment, a confidentiality agreement which assigned to the dentist and her dental practice a copyright over any comments made about her or her practice.

One of these patients was not satisfied by Defendant’s dental services and wrote about his dissatisfaction on Yelp and other sites allowing users to comment about services. According to the complaint, Defendant unsuccessfully asked these sites to remove Plaintiff’s comments, sent Plaintiff invoices purporting to charge $100 per day for the posting of these comments, and threatened to file a copyright infringement, breach of contract, and defamation suit if the comments were not removed from the sites.

Several of the dentist’s patients filed a class action suit in November 2011 in the Southern District of New York (SDNY), claiming that, even if Defendant does indeed own the copyright in these comments, they were not infringing under the fair use defense of Section 107 of the Copyright Act. Defendant moved to dismiss but the motion was denied on March 27, 2013, by Judge Paul A. Crotty from the SDNY.

On February 27, 2015, Judge Crotty rendered a default judgment in favor of Plaintiff. The case is Lee v. Makhenevich, 1:11-cv-08665 (SDNY).

For Judge Crotty, the comments posted by Plaintiff were not infringing as they were fair use. Also, for the SDNY,

“[o[btaining the promise by plaintiff… in the [m]utual [a]greement to [m]aintain [p]rivacy… not to publish criticism of defendants, the [a]greement's purported assignment of copyrights, and the assertion of copyright claims by defendants for the express purpose of preventing the dissemination of [plaintiff]’s [c]ommentary, constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.”

Judge Crotty also ruled that

“[Plaintiff]’s  assignment and promise in the [a]greement not to publish criticisms of defendant… are null and void for lack of consideration… [that Plaintiff]'s assignment and promise in the [a]greement not to publish criticisms of defendants are null and void for unconscionability… [that] [t]he [a]greement is a deceptive act or practice in violation of Section 349(a) of the New York General Business Law… and [that] [Plaintiff’]'s [c]ommentary is not actionable defamation under New York common law. “

I will only write about the copyright issues in this case.

Using Copyright to Suppress Speech

This case is interesting because it is a textbook example of a case where a party is using copyright to attempt to suppress speech.

The agreement signed by Plaintiff read, in part, that in consideration for the dentist to agree not to provide any lists of patients or personal information to any marketing companies, the patient would “assign… all Intellectual Property rights, including copyrights, to Dentist for any written, pictorial, and/or electronic commentary.” The agreement claimed that dentists are able to provide such information to third parties because of a “loophole” in HIPAA, the federal medical data privacy law, and added further that “Dentist feels strongly about Patient’s privacy as well as the Practice’s right to control its public image and privacy.” The agreement would last five years from the date of the dentist’s last service to the patient, or three years after the termination of the dentist-patient relationship.

HIPAA, however, forbids covered entities, such as MDs and dentists, from disseminating patient information for marketing purpose, so there is no need for such agreement to protect patient’s privacy.  The complaint argued that, since there are no “loopholes” in HIPAA, the assignment was null and void for lack of consideration. Judge Crotty agreed.

In his March 2013 order, Judge Crotty referred to all these actions as “aggressive and threatening conduct.” Indeed they were.

After Plaintiff had published negative comments on both Yelp and DoctorBase, he first received a letter from “North East PC/Attn Urgent/Legal” [catchy title, eh?] threatening him with a $100 000 lawsuit because he had violated the agreement. The letter, signed “Corporate Practice”, informed Plaintiff that the letter “shall serve [him] as the only notice prior to litigation” and contained a draft of a complaint which appeared ready to be filed, if the Plaintiff did not comply with the letter’s demands. The office of the dentist also sent Yelp and DoctorBase DMCA takedown notices, telling them that the dentist owned the copyright in the comments and asking them to take the comments down.

On October 17, 2011, Plaintiff received a letter from Defendant’s attorney, which stated that his comments posted online included damaging inferences which denigrate, defame, and cast aspersions upon the dentist and the dental office” and that “according to The Ethics of Medical Justice / Dental Justice Agreements, under the Code of Internet Ethics, your comments are not considered constructive commentaries but rather as personal attacks to the office's well-being and reputation.” Medical Justice is the company which had written the agreement used by Defendant. The Center for Technology and Democracy filed a complaint in November 2011 with the Federal Trade Commission asking it to investigate Medical Justice, and the company has since stopped proposing such agreements to dentists and MDs.  

Copyright Registration

But after having claimed that the comments infringed her copyright, and after having threatened to sue Plaintiff for copyright infringement, Defendant argued that there could not be a copyright infringement suit at all. In her memorandum of law to support her motion to dismiss, Defendant had claimed that the suit had to be dismissed because a copyright registration is a pre-requisite to any copyright infringement suit, but that Defendant had not registered her copyright in the comments.

Judge Crotty noted though,  in his March 2013 order,  that Plaintiff does not claim that his own copyright has been infringed, but, rather, that his comments “about Defendants' hardly defensible practices are subject to copyright protection. Defendant’s argument that the copyright must be registered before relief turns the law upside down.”

Fair Use

Instead, Plaintiff claimed that “non-commercial use of copyrighted materials for criticism and comment is a paradigmatic fair use that is not infringing” and that “[t]he posting of [his comments]… can have no effect on their potential market or value because no such value exists.” On February 27, Judge Crotty agreed on that point.

Misuse 

Plaintiff also sought a declaration that the agreement’s promise not to publish criticisms, the purported acquisition of copyrights in the comments, and the assertion of copyright claims, constituted breaches of fiduciary duty, violations of dental ethics, and were subject to the equitable defenses of unclean hands and copyright misuse.

Judge Crotty agreed with Plaintiff on these points as well, and awarded him $4,766 in damages. 

THE COPYCAT - takedowns, takeaways and turnarounds

Is Aereo on the way back? Eight months after losing its legal battle with television networks, the failed watch-TV-on-the-Internet startup held an auction for its assets - and interestingly its trademarks and customer list, which went to TiVo for the bargain price of $2 Million.  What could TiVo do with these assets?  Well on Forbes Bill Rosenblatt suggests this: "Here’s an intriguing possibility: TiVo could be looking into offering an Aereo-like service but one that’s licensed by TV networks".

German-based Total Wipes Music Group hit the news recently after issuing a number of mistaken (and in hindsight rather ill judged attempts) to remove entirely legal content published by the likes Walmart, Ikea, Fair Trade USA and Dunkin Donuts using the DMCA takedown procedure - to seemingly protect content it manages. The company apologised on its Facebook page on 23rd February saying: "Due to technical servers problems on the first February week our script sent hundreds DMCA to hundreds domains not related at all any copyrights of our contents. It was our fault, no doubts about it. The DMCA is a serious issue and it must be carefully managed. We contacted most of these domains but it was too late, the DMCA had already been sent. Google rejected most of these wrong DMCA but we totally understand the damage of it for small and medium companies that have to remove and manage them manually. It was a bug just on that week. However, our Antipiracy system has been taken down a week ago in order to add more improvements and avoid any future sending of wrong DMCA. Our apologies again for all sites involved and thanks to all persons that reported us the issue. However, it seems a glitch happened again, this time in the form of a attempt to protect an album called "Cigarettes" on the Mona label - which ended up targeting  an article on how use PGP on the Mac - published by none other than the EFF - which was a duly removed by Google. But TorrentFreak has an interesting take on this - and apart from amending legislation to allow for habitual abusers of the DMCA and other notice systems to be banned - shouldn't those who issue mistaken takedown notices be subject to damages - and criminal charges? With the headline "Monopoly Fraudsters Need To Go To Jail With Heavy Damages, Torrent Freak opines: "It’s a complete mystery why this isn’t a criminal behavior. The fact that it isn’t is why it continues and harms innovation, creativity, free speech, and the Internet. The Swedish Pirate Party had a very clear policy on crimes like this: if you lied about holding an exclusive right to something, the same penalty that would have applied to an infringer of that exclusive right would instead apply to you. This is only fair, after all: you are infringing on the distribution of a creative work by dishonest means. For repeat offenders, or organizations that committed this crime on a commercial basis or commercial gain, like that idiot record label in the TorrentFreak story – they would be declared criminal organizations and have all their assets seized. The individuals doing so for commercial gain would go to jail for a couple of years". The Total Wipes website currently says this" The Public Area of this website is undergoing upgrading works. We apologise for any inconvenience caused. Thank you for your patience.

MegaUpload founder Kim Dotcom has returned to court in new Zealand in an attempt secure more of the monies seized when his former company was shutdown by US authorities in 2012. Prosecutors in America, and the US music and movie industries have argued that, if their civil litigation against MegaUpload is successful, that money will be needed to pay damages to copyright owners. Dotcom had been granted around $15,000 a month from funds seized in New Zealand to cover living costs, Dotcom now says he is "broke and destitute", and needs to increase his monthly allowance to $152,000, plus extra monies to cover legal fees of up to $3 million. His New Zealand legal team quit last year because over unpaid fees and the court is bound to ensure the Mega founder's new legal reps can be paid as he continues to fight efforts by the US to extradite him to face charges of criminal copyright infringement there.

In the U.S. a picture by Robin Morris which was previously exhibited at the Trunbull Library has been removed amidst claims that bogus worries about copyright were being used to censor the work by those who objected to the painting on religious grounds - not least because the painting contains a reppresentation of Mother Teresa alongside several famous women in history, including Margaret Sanger - the birth control activist, sex educator and founder of Planned Parenthood. The Library said they were not insured against claims of copyright infringement, and explained the take down saying "In recent weeks, independent organizations have alleged potential copyright infringement with the use of Mother Teresa’s image in one of the pieces of artwork”. The Gallery also said it was concerned it lacked covef for any potential liability should the paintings be damaged, stolen or destroyed. The Town's first Selectman Tim Herbst said “After learning that the Trumbull Library Board did not have the proper written indemnification for the display of privately-owned artwork in the town’s library, and also being alerted to allegations of copyright infringement and unlawful use of Mother Teresa’s image, upon the advice of legal counsel, I can see no other respectful and responsible alternative than to temporarily suspend the display until the proper agreements and legal assurances are in place,” adding. “I want to make it clear that this action is in no way a judgment on the content of the art but is being undertaken solely to protect the town from legal liability based upon a preliminary opinion from the town attorney.” The owner of the pictures, Richard Resnick, recently has sent the Library and the Town an email, stating the Town would not be responsible for any legal action or damage to the paintings. More here.

A U.S. dentist who used a privacy agreement to assert a copyright claim over a peeved patient's review of his practice to try and censor critiism online has lost a court case. The patient, who claimed he had been over charged and that the dentist had "screwed up submitting his claims to his insurer", has now been awarded $4,766.00 after a default judgement by a U.S. District Court in the Southern District of New York. The Judge said that no copyrght claim could be made as the review was fair use, and held that the prohibition against negative criticism, along with the use of copyright claims to prevent the review from being seen constituted  "breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.” More here and the judgment here.

Rappers Wu-Tang Clan have set up a website to run the auction for their album, 'Once Upon A Time In Shaolin' whioch has been released with a single pressing of the 31 track, 128 minute record - the person places the highest bid will buy the lone CD and the box that contains it. And according to the record's producer Cilvaringz, after a 88 year holdback - the owner of the physical CD will be assigned the copyright in the recording as well and could choose to release the album. Cilvaringz told Forbes: "After 88 years the copyright, which includes public and commercial rights, automatically transfers to the owner of the work. [But] it will still be his or her choice at that [point] to release it or not release it". This week 200 people attended the sole public airing on the album at in a heated dome outside New York's MoMA PS1. Guests and journalists were forced to put their cell phones in plastic bags at the front desk to avoid the 13-minute album excerpt from leaking.  According to Wu-Tang leader the RZA, bids have reached $5 million.

Copyright Law and More

Copyright Law and More is the catchy title of a special course that will be running at UCL, University of London from Monday 18 May to Friday 22 May 2015. The venue is UCL's lovely and historical Faculty of Laws building, Bentham House, Endsleigh Gardens, London WC1H 0EG.

Billed as a CPD Course Meeting the Legal Needs of the Creative Industries of the 21st Century, it is organised by UCL's Institute of Brand and Innovation Law (IBIL) and the course convenor is our old friend and one of the original team of 1709 Bloggers, IP consultant Amanda Harcourt.

Full details of the programme, the faculty, the massive CPD haul (and the cost: is that why it's called "Copyright Law and More"?) just click here.

A picture of perplexity in the Museum of Brands

Attending a British Brands Group reception in London's fascinating Museum of Brands this evening, I had the pleasure of meeting its founder, the legendary Robert Opie (right). Robert was expressing his concern that thoroughly accurate photographs which he had taken of (presumptively out-of-copyright) advertisements, and which he has used in his books, had apparently been reproduced without authorisation by a third party which was now selling the copies.

Together with veteran intellectual property barrister Christopher Morcom QC, I found myself trying to explain to an increasingly incredulous Robert the circumstances in which a photograph of an advertisement might -- or might not -- either constitute an infringement of copyright or be an original work in its own right, and when another person might be able to make use of it for his own purposes. I told him about cases such as Bauman v Fussell and Temple Island v New English Teas (the celebrated "Red Bus" case) and it occurred to me that I was describing things that seemed quite normal to me because I have lived with them for my entire professional life while they seemed astonishing and arbitrary to Robert because they didn't accord with what he felt was common sense and what he knew to be the way people do things in real life.

Robert was particularly surprised to discover that copyright notices in published works did not have the force of law and that, even though they stated with absolute clarity that no one was allowed to store, reproduce or do anything else with a work, this was not actually what the Copyright, Designs and Patents Act 1988 says.

In the end, Robert appealed to us and asked: "Is there a slim book -- and I mean a slim book -- that just says clearly and simply what the legal position is?"  Offhand I couldn't think of one, but it occurred to me that some of the readers of this weblog who are not lawyers but have to take legal decisions might have some suggestions or preferences.  If so, please post them below and I'll be happy to forward them to Robert.