1709 Blog: for all the copyright community

Thursday, 25 August 2016

Appeal filed in 'Blurred Lines' case


It comes as no surpise that Pharrell Williams, Robin Thicke and TI have fied their appeal against the verdict in the 'Blurred Lines' case that saw them ordered to pay $5.3m (reduced from $7.3 million) and pay over 50% of songwriting and publishing revenues to the family of Marvin Gaye, after a jury ruled last year that their song copied Gaye’s 1977 hit 'Got to Give It Up'. Lawyers for the trio filed their opening brief with the Ninth Circuit Court of Appeals on 24th August, arguing that “if left to stand, the Blurred Lines verdict would chill musical creativity and inhibit the process by which later artists draw inspiration from earlier artists to create new popular music” and at the heart of their appeal is the argument that the Judge and indeed the jury shoud have simply considered the sheet music – the “deposit copy” filed with the the US copyright office - and not been influenced by the actual reciordings of either song. The "Blurred Lines" writers assert that when the court examined the two songs before the trial,  Judge John A. Kronstadt shoud have ruled that the case was not worthy of trial.

The brief states: “What happened instead was a cascade of legal errors warranting this court’s reversal or vacatur for new trial .... At summary judgment, the district court entertained expert testimony by musicologists for the Gayes who based their opinions entirely on the sound recording, not the deposit copy. The court correctly filtered out non-deposit copy and generic musical features from their testimony, but then erroneously failed to compare what remained to Blurred Lines .... At trial, the district court made things worse. While correctly excluding the Got to Give It Up sound recording itself, the court erroneously allowed the Gayes’ experts to testify about the sound recording anyway, including by playing their own musical excerpts based on the sound recording. The court then instructed the jury that it could consider all this testimony in its substantial-similarity analysis.”

This writer was expecting an appeal well before the recent decison in the 'Stairway to Heaven Case' where Led Zeppling where found not to have plagiarised a song 'Taurus' by Spirit - a decision must have boosted the appellant's confidence.

http://www.rollingstone.com/music/news/pharrell-robin-thicke-ti-appeal-blurred-lines-verdict-w436116

http://www.theverge.com/2015/12/9/9877706/robin-thicke-pharrell-blurred-lines-marvin-gaye-appeal

http://www.wipo.int/wipo_magazine/en/2015/05/article_0008.html

https://thump.vice.com/en_uk/article/we-talked-to-a-lawyer-about-how-the-blurred-lines-verdict-will-impact-copyright-law-in-dance-music

Friday, 19 August 2016

Judgment against Cox opens up ISP liability in the USA

Cox Communications has been ordered to pay a $25 million dollar penalty for copyright infringements to the music rights management company BMG by a federal judge. The ruling follows a jury decision which found Cox liable for illegal movie and music downloads by its customers. The company's behaviour amounted to wilful infringement of copyright in the eyes of the jury.

The Eastern Virginia District Court dismissed Cox’s appeal of the earlier verdict, and ordered Cox to pay BMG $25m in damages for copyright infringement - a ruling which may have widespread repercussions for online copyright infringement in the US. The court decided that Cox did not do enough to stop users pirating music from BMG, and therefore did not qualify for Digital Millennium Copyright Act (DMCA) ‘safe harbor’ protections.

Crucially, BMG provided evidence that its agent, Rightscorp,  had identified individual infringers and then alerted Cox to their wrongdoing - which Cox then failed to act on.  In a statement, Rightscorp said: “For nearly five years, Rightscorp has warned US internet service providers (ISPs) that they risk of incurring huge liabilities if they fail to implement and enforce policies under which they terminate the accounts of their subscribers who repeatedly infringe copyrights." adding “Over that time, many ISPs have taken the position that it was simply impossible for an ISP to be held liable for its subscribers’ actions – even when the ISP had been put on notice of massive infringements and supplied with detailed evidence.  “Although Rightscorp was not a party in this case, we are delighted with the outcome. The Federal District Court declared the liability of ISPs to be precisely what Rightscorp has been saying it is for years,” said Rightscorp CEO Christopher Sabec.

http://www.komando.com/happening-now/369676/this-copyright-case-should-worry-all-internet-users

http://arstechnica.co.uk/tech-policy/2015/12/rightscorp-wins-landmark-ruling-cox-hit-with-25m-verdict-in-copyright-case/

http://www.law360.com/articles/761632/cox-rails-against-25m-piracy-verdict-awarded-to-bmg

http://www.musicbusinessworldwide.com/isps-may-face-huge-liabilities-for-music-use-after-bmgs-25m-payout-from-cox/

Friday, 12 August 2016

Learning copyright long distance: the new edition of a popular course

The 1709 Blog has learned that the 2016-2017 prospectus of the Distance Learning Programme leading to a Postgraduate Diploma/Masters in UK, EU & US Copyright Law is now available online.

Organised by the Centre of European Law at King’s College London, this popular course allows participants to acquire detailed knowledge of copyright in a number of jurisdictions. In addition, it does not require participants to reside in London for the duration of the programme, thus allowing them to continue working and studying in their own cities and countries.  

More specifically, as explained by Prof Tanya Aplin (the Course Director),

"The programme provides tuition from one of Europe’s leading centres in European Law and is studied on a distance learning basis, thereby avoiding crucial time spent away from your place of work. Completing this rigorous programme will give you a competitive advantage in a difficult job market. 

The programme aims to provide you with an in-depth and up-to-date knowledge of the general principles of copyright law, mainly focusing on the law in the United Kingdom, the principles of United States copyright law and the major ‘copyright’ Directives of the European Union. Benefit from a highly relevant programme that will: 

• Introduce the main international copyright conventions in the field; 
• Deal with rights in literary, dramatic, musical and artistic works, films, sound recordings, broadcasts, cable programmes, computer programs and databases, performers’ rights and publishers’ rights; 
• Cover both theoretical aspects and questions which arise in practice, in particular concerning infringement and available remedies; 
• Include a unit devoted to the French and German laws on author’s rights and related rights; 
• Examine thoroughly United States Copyright Law in two units; 
• Conclude with the main challenges in the field of copyright, in particular those arising from international communication through satellite and the internet, and from digital technology generally. 

"Relaxing" on the copyright
exceptions chapter
The programme is spread over 8 months starting on 3rd October 2016 and ending with an examination at King’s College London in May 2017. The units will be dispatched at fortnightly intervals. These will take you systematically through the whole subject. Units will consist of text, suggestions for further reading, assignments, questions and model answers: annexes will contain reference materials. 

There will be three optional weekend seminars held in London in December 2016, February 2017 and April 2017 which will provide an opportunity for revision of the programme, for discussion, preparation for the examination and for you to meet fellow students and your programme tutors. 

In 2015 this Diploma/MA received on overall satisfaction rate of 100% (Russell Group average 85%) from the students in the PTES, Postgraduate Taught Experience Survey. The Dickson Poon School of Law, King’s College London was also rated top in the UK for world-leading research in the Research Excellence Framework 2014."

If you wish to learn more about the course and its details, click here.

Tuesday, 9 August 2016

APCA Conference: Call for abstracts/papers

The 1709 Blog has learned that the Asian Pacific Copyright Association (APCA), in conjunction with the Law and Technology Center at the University of Hong Kong, is organising a conference on "Copyright in the Asian Pacific: The Challenges and Opportunities", to be held at the University of Hong Kong Faculty of Law on 20-22 November 2016.

The conference has also a call for abstracts/papers. More specifically:

Abstracts of approximately 350 words should be sent to Susan Corbett via email at susan.corbett@vuw.ac.nz by 10th October 2016. Each abstract submission should include the author’s name, title and affiliation. Abstracts will be approved on a rolling basis.

The Conference theme is: Copyright in the Asian Pacific: the challenges and opportunities.

At APCA’s inaugural conference in November 2015, Professor Adrian Sterling presented a draft Asian Pacific Copyright Code for discussion. As is usual for international legal instruments, the Code is drawn in broad terms, leaving much discretion to individual States. The theme of this Conference will address additional possibilities for the Code - should it for example include specific minimum standards and /or exceptions for the protection of indigenous culture; orphan works; Internet and other digital works; cultural heritage; education and libraries, etc. If so, what form should these minimum standards and/or exceptions take? Conversely, are there matters that should be omitted from the Code and left entirely to the legislatures of individual States?

Further details about the conference, including registration and accommodation options, will be available shortly on the APCA website www.apcacopyright.org.

Monday, 8 August 2016

Do machines work better than humans? You can find out by helping research!

The 1709 Blog has heard about an interesting research project on automated notice-and-takedown currently being undertaken at the University of Southampton by PhD student Pei Zhang.

Pei is now looking for volunteers to validate her conclusions.

Here's what Pei writes: 

"I am a PhD student in Computer Science at University of Southampton. I am doing an interdisciplinary research on how technologies can help verify copyright infringing activity on web pages in the context of notice-and-take-down procedures. 

I need 4~6 legal experts with a good working knowledge of intellectual property law for the evaluation phase of my system. You are thus invited to take part in a simple experiment which will help to refine my system. 

For a more detailed description of my research see the recent paper I presented at WebSci16’ Conference in May.

The experiment takes around 1.5~2 hours. 

During this experiment, each expert will be given 15 webpages and key information about copyright works that may be accessible through these webpages. Based on your knowledge and understanding, you are expected to give ratings of how likely you think there is a copyright infringement on each webpage and then to fill in a Questionnaire to explain the reasons for your rating. The experiment is carried out anonymously.

You will receive a £40 Amazon voucher and a huge thank you for your time and efforts!

Please email me asap at pz2g12@soton.ac.uk with a short bio (or a link to a short bio) if you have a bit of spare time before the end of September!"

Thursday, 4 August 2016

THE COPYKAT - the macaque is back

New research from the UK's Intellectual Property Office (IPO) shows that internet streaming services such as Spotify and Netflix have resulted in online piracy falling to its lowest rate in years.The research shows that that 15% of internet users illegally accessed films, music and other material between March and May. This is down from 18% a year ago and was the lowest recorded rate in the five years the study has been carried out. Muasic, TV and films dominate piracted material. 
Naruto by ...... ??

We have repeatedly reported on Naruto, the rare crested macaque that took the now internationally famous 'selfie' - and the recents and unsuucesful arguments by animal rights group  PETA (People for the Ethical Treatment of Animals) to persuade the courts that the monkey should be considered the author and copyright owner of the photo saying "While the claim of authorship by species other than homo sapiens may be novel, 'authorship; under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto". US District Judge William Orrick was unimpressed and ruled that the monkey, who borrowed British photographer David Slater's camera and took the selfies, cannot own the copyright in the pictures. During a brief hearing the judge, dismissing the suit, stated: "I'm not the person to weigh into this. This is an issue for Congress and the president. If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that."  Now the group has filed an apeal with the 9th Circuit Court of Appeals. More here and here.


An infringement case against rapper Ghostface Killah has been revived after a judge ruled that composer Jack Urbont could move forward with the case. The initial lawsuit was dismissed, but in April, 2015 judges for the 2nd Circuit Court of Appeals overturned that decision. Urbont, who created the theme song for the 1960s TV version of Iron Man, filed a lawsuit in 2011, claiming Ghostface sampled the Iron Man Theme twice on his 2000 album 'Supreme Clientele'. Now Judge Peter Hall has ruled that Urbont could argue he owns the rights to the Iron Man Theme, and also suggested Ghostface and the songs' producer RZA may have infringed on the audiovisual rights for the tune, because the Iron Man track was never officially released as a single and was likely lifted from the Marvel Super Heroes show, according to RollingStone.com.


LeBron James by Keith Allison
Tattoo artists Solid Oak Sketches have lost an important battle in their claim against the animators behind the NBA 2K video game series - which feature  several NBA stars including James, Kobe Bryant and Eric Bledsoe - tattoos and all! The tattoo designers were seeking actual damages in an amount to be determined at trial, or statutory damages and attorneys' fees — but a New York federal judge on Tuesday ruled out the latter. "[I]n order to obtain statutory damages and attorneys' fees, a plaintiff must have registered its copyright prior to the alleged infringement," U.S. District Judge Laura Taylor Swain wrote. And the copyrights in the tattoos were not registered until 2015 - AFTER the alleged infringements began in 2013 with the Judge saying "[W]hen the same defendant infringes on the same protected work in the same manner as it did prior to the work's registration, the post-registration infringement constitutes the continuation of a series of ongoing infringements" The judge also dimissed a claim of willful infringemet by 2K Games and Take-Two Interactive Software, saying willfulness is not relevant to analysis of Section 412 of the Copyright Act, which imposes a bright-line rule barring statutory damages and fees if the first act of infringement happened before the work was registered.

The U.S. Copyright Office has criticized the Federal Communications Commission's plans to open up the market for pay-TV set-top boxes, FCC Chairman Tom Wheeler has been pushing for new FCC rules to open up the market for the costly set-top boxes, currently dominated by cable and satellite pay-TV providers, to let in new entrants such as Alphabet Inc.’s Google. .Mr. Wheeler’s plan has prompted strong objections from pay-TV providers and TV-program producers. They argue that the current plan could upset their carefully-negotiated contractual arrangements with pay-TV providers on issues such as channel placement and advertising. The letter from the Copyright Office appears to back those concerns, saying, “As currently proposed, the [FCC] rule could interfere with copyright owners’ rights to license their works as provided by copyright law” adding that Copyright Office is “hopeful that the FCC will refine its approach as necessary to avoid conflicts with copyright law and authors’ interests under that law.”

Its not April Fool's day is it? Anyway, the lawyer of a 90-year-old woman identified as Hannelore K, who mistakenly started filling in an art exhibit in the form of a crossword puzzle, now claims that she holds the copyright of the "new" work. The 1977 creation by the 20th-century artist Arthur Köpcke was lent to Nuremberg’s Neues Museum by a private collector, and is said to be worth around £70,000 and the woman, a retired dentist, said that she started filling in the artwork's crossword puzzle because it bore the phrases "Insert words" and "so it suits." Whilst the artwork has been clensed of her additions in biro, the lawyer has had to rebutt a police investigation into his client's behaviour and has now said that far from harming the work in question, his client has increased its value by bringing the relatively-unknown Köpcke to the attention of a wider public. Moreover, her "invigorating re-working" of the exhibit further increased its worth. Indeed, Frau K.'s lawyer claimed that her additions meant that she now held the copyright of the combined artwork - and that, in theory, the private collector might sue the museum for destroying that new collaborative work (made without his permission) by restoring it to its original state. More on Arts Technica here. Image by Chip Griffin. 

Tuesday, 2 August 2016

High noon for Getty Images as a photographer bites back

Image by Carol M Highsmith
When LCS, a company acting for stock photographic image agency Alamy, sent photographer Carol M Highsmith a $120 settlement demand for using one of 'their' images without permission, things were about to get messy. The image in question was actually Highsmith's own work, displayed on her own website. Highsmith has now responded with a $1bn lawsuit against the massive Getty Images.

Carol Highsmith is a 'richly published photographer best know  for capturing 'Americana'. Highsmith’s images have been publicly available through the Library of Congress since 1992, and the only thing the artist asks is that people credit her when using them. But why is her claim for $1 billion dollars? Well after this ill fated episode was started by Alamy,  Highsmith discovered that Alamy and Getty Images were apparently "representing" some 18,000 of her images.

Seattle-based Getty Images is the world famous multi national agency that controls an enourmous archive of stock images - and it is known to be vigilant in protecting its rights and the rights of its clients. The company scans the web in search of instances where people have used its images without obtaining an appropriate license and pursues the alleged infringer for money. Alamy decribes otself as "the world’s largest stock photo collection". Only here Ms Highsmith wasnt actually a client - and Alamy didnt own or control the rights to the images - and nor did Getty.


One of Carol Highsmith's images
TorrentFreak said that what followed was "a typical copyright-troll operation. Those supposedly using content without permission receive a scary letter from Getty agents warning that all kinds of terrible things might happen if Getty decides to take the case to court. All this can be avoided, however, if the supposed image pirate pays a cash settlement."
One such letter was received in December 2015 by the This is America! Foundation, a non-profit set up by Carol Highsmith, a long-established US-based photographer. Penned by a company calling itself License Compliance Services (LCS) on behalf of  Alamy. The letter said:

“We have seen that an image or image(s) represented by Alamy has been used for online use by your company. According to Alamy’s records your company doesn’t have a valid license for use of the image(s)” adding “Although this infringement might have been unintentional, use of an image without a valid license is considered copyright infringement in violation of the Copyright Act, Title 17, United States Code. This copyright law entitles Alamy to seek compensation for any license infringement.” The company demanded $120 to settle the dispute,

Highsmith says she explained her position to LCS - primarily that she was the author and was the first legal owner of the copyright in the image. However, she also revealed that she had donated this and thousands of other images to the Library of Congress and makes them available to the public to reproduce and display for free. At the end of December 2015, Highsmith received confirmation from LCS that the case against her had been dropped. However, Getty and Alamy reportedly continued to make available more than 18,000 of Highsmith’s other photographs on their websites.

Highsmith's lawsuit states: “Nowhere on its website does Getty identify Ms. Highsmith as the sole author of the Highsmith Photos. Likewise, nowhere on its website does Getty identify Ms. Highsmith as the copyright owner of the work” and “Instead, Getty misrepresents the terms and conditions of using the Highsmith Photos by falsely claiming a user must buy a copyright license from Getty in order to have the right to use the Highsmith Photos” and “The Defendants are not only unlawfully charging licensing fees to people and organizations who were already authorized to reproduce and display the donated photographs for free, but are falsely and fraudulently holding themselves out as the exclusive copyright owner and threatening individuals and companies with copyright infringement lawsuits that the Defendants could not actually lawfully pursue.”

Highsmith says that Getty is liable for statutory damages of up to $468,875,000.

Getty commented "We are reviewing the complaint. We believe it is based on a number of misconceptions, which we hope to rectify with the plaintiff as soon as possible. If that is not possible, we will defend ourselves vigorously” adding “LCS works on behalf of content creators and distributors to protect them against the unauthorized use of their work. In this instance, LCS pursued an infringement on behalf of its customer, Alamy. Any enquiries regarding that matter should be directed to Alamy.” 

http://www.loc.gov/pictures/collection/highsm/

http://www.vocativ.com/345960/photographer-hits-getty-images-with-1-billion-copyright-lawsuit/

https://torrentfreak.com/photographer-files-1bn-copyright-claim-against-getty-images-160728/

https://torrentfreak.com/getty-images-bite-back-in-1-billion-copyright-dispute-160801/

http://www.amateurphotographer.co.uk/latest/photo-news/getty-set-fight-1billion-copyright-lawsuit-90415

Tuesday, 12 July 2016

The abyss that stared back: Vantablack’s copyright conundrum

Vantablack
A few months ago our friend Alberto Bellan at the IPKat discussed the very question whether it is possible to own a colour, especially when this is Vantablack, ie the "blackest black ever existed".

Today The 1709 Blog is delighted to host a guest contribution by Divya Mirlay (Christ College, Bangalore) on the specific copyright implications surrounding Vantablack.

Here's what Divya writes:

"Oscar Wilde in his inimitable fashion once said, “mere color, unspoiled by meaning, and unallied with definite form, can speak to the soul in a thousand different ways.” Ironically, Wilde’s eloquent description of color resonates with the British art maestro Anish Kapoor’s description of the complete absence of color, which goes by the name Vantablack. 

A unique material composed of millions of incredibly small nanotubes grown on a metal surface, Vantablack is recognized by the Guiness World Records as the World’s Darkest man-made substance. In an interview, Mr Kapoor describes the unique qualities of Vantablack’s use in art and the powerful responses it evokes. 

This unique material has recently surfaced in the context of a potential copyright row. According to Surrey NanoSystems, a British company that developed the material, Mr. Kapoor alone possesses the exclusive license to use Vantanblack in artistic creations. 

Appalled by the apparent monopolization of a colour, several in the creative world have vehemently opposed it. The protection afforded to colours under the intellectual property regime has been hoarsely advocated by several MNCs in the past- be it Cadburys purple or T-Mobiles magenta. 

The exclusive ownership of colours by individuals, particularly in the context of artistic works, though rare, is not unheard of. What is still in a state of flux however, is the copyright protection of colour.

The man that ‘bought’ blue

The oft-touted precedent for the ownership of color is that of International Klein Blue (IKB), a hue mixed by the French artist Yves Klein in 1960. IKB was developed by suspending dry pigments in synthetic resins, resulting in the individual particles of the pigment retaining their brightness and intensity over time. 

In this regard, Klein received the Soleanu envelope from the French Patent office, ie a system peculiar to the French patent system. Whats interesting is that Klein’s patent did not extend to the colour or the binding medium, but was limited to its chemical concoction. Vantablack, on the other hand, is licensed exclusively to Kapoor Studios UK for its use in the field of art.

Gold and Vantablack
The norms of owning colour

Some sources claim that Mr Kapoor now owns a copyright in respect of Vantablack.  The copyright protection of a colour has not surfaced yet. As stated above, Klein’s rights over IKB pertained to a patent, not copyright. 

Other instances of ownership of colors are largely in the domain of trade marks. US courts have seen a plethora such cases-the first being In Re Owens-corning FiberglassCorporation, where the Court of Appeals for the Federal Circuit ruled that in limited circumstances, a color that has become associated with a specific manufacturer can qualify as a registrable mark. The appellants in this case were given the right to prevent competitors from using the color pink in their insulation products. This marked the first time a company in the US was granted a trade mark for a particular colour. 

Nearly a decade later, the US Supreme Court in Qualitex Co v Jacobson Products Co, Inc, held that there existed no objection to the use of color alone as a trade mark, when the colour has attained a secondary meaning and therefore identifies and distinguishes a particular brand.  

Ever since, the courts have dealt with several cases pertaining to the protection of colours as trade marks, especially in the context of pharmaceutical trade dress. Vantablack, however, cannott be protected by trade mark as the question of any secondary meaning identifying it with any particular brand does not arise.

Just black and white
A colourful dichotomy?

The idea-expression dichotomy forms the foremost axiom of copyright law. In this regard, “ideas, sentiments or creations of the imagination” are often contrasted with "the language, idiom, style, or the outward semblance and exhibition" of such creation.  However, the boundary between an idea and an expression is at times unclear, and as posited by Judge Learned Hand, “nobody has been able to fix the boundary, and nobody ever can.” 

The question in this case is whether a colour forms an idea or an expression. What is to happen if colours are considered as expressions of ideas? Say, red for danger, white for peace, white and gold/blue and black for consternation, etc. These colours, much like words, form common property to the human race, and are therefore as susceptible to private appropriation as air or sunlight. [(Holmes v. Hurst, 174 U.S. 86 (1899)] The purpose of limiting copyrights to expressions, and not ideas is to prevent the monopolization of the latter. Only when arranged in an original form, can they merit copyright protection. As held in an Indian landmark ruling, every expression does not ipso facto become protectable, and must pass the test of originality, which requires the exercise of skill, labour and judgment in creating the work.  A colour alone is lacking in originality, and its protection would arguably result in monopolization of an idea which would strike at the foundations of copyright law.

Additionally, certain countries (US for instance) require fixation of the work in a tangible medium as a prerequisite for copyright protection. Therefore, ideas, plots, themes, and, arguably in the same vein, color cannot be copyrighted on this ground alone. 

As the requirement of tangible fixation is optional under the Berne Convention, certain countries have opted not to include this requirement in their domestic laws. The Indian Copyright Act, 1957 (Act) for instance, makes no such mention. Section 13 of the Act lists the classes of original work over which a copyright subsists, which includes artistic works, defined under section 2( c ) as: (i) a painting, sculpture, drawing (including a diagram, map, chart or plan), engraving or photograph; (ii) work of architecture; (iii) any other work of artistic craftsmanship.

A colour by itself would not form an artistic work under the aforementioned section. Only when used in a painting, sculpture, drawing, etc, can a copyright be claimed. Section 16 of the Act further prevents the entitlement of copyrights or any similar rights except in accordance with the provisions of the Act. It therefore would not be plausible to categorize Vantablack as an ‘artistic work', thereby making it unfit for copyright protection.

Like Klein, SurreyNanoSystems could patent the material. The company’s FAQ portal states that Vantablack is not a paint or pigment, but comprises of a functionalized forest of millions upon millions of nanotubules, grown at 750 degrees centigrade. 

Vantablack has diverse industrial applications in aerospace technology, touch screens, ultra light wiring, etc. The material appears to check the boxes of novelty, non-obviousness and utility, thereby making it patentable. Thus, if Vantablack was to be monopolized in any manner, it would be more palatable as a patent, rather than copyright."