1709 Blog: for all the copyright community

Monday, 25 May 2015

A new case for Sherlock Holmes

Illustration by Howard K. Elcock
The Estate of Sir Arthur Conan Doyle is suing Hollywood film producers over a soon-to-be released blockbuster movie which follows Sherlock Holmes during his retirement. The author's Estate, which has been involved in several high-profile legal battles, now claims that the plot of the new film "Mr Holmes" infringes on the Conan Doyle's short story, "The Adventure of the Blanched Soldier" published in 1926 in Strand magazine. Defendants to the action include Miramax studio, film distributor Roadside Attractions, and director Bill Condon, who previously directed "Chicago" and "Dreamgirls".  The movie - which stars Sir Ian McKellen as the fictional detective - is due to be released in the UK and the U.S in July. 

The complaint, filed in New Mexico, says: 'Reviews of early screenings, together with trailers released in the United States, reveal that the motion picture uses the same elements from Conan Doyle's copyrighted stories.' The film is based on the book "A Slight Trick of the Mind" and  the Author of the book Mitch Cullin,  and his publisher Random House, are also named as defendants.

A Slight Trick of the Mind is set in 1947 and the long-retired Sherlock Holmes, now 93, lives in a remote Sussex farmhouse with his housekeeper and her young son: "He tends to his bees, writes in his journal, and grapples with the diminishing powers of his mind. But in the twilight of his life, as people continue to look to him for answers, Holmes revisits a case that may provide him with answers of his own to questions he didn’t even know he was asking–about life, about love, and about the limits of the mind’s ability to know."  

Sir Ian as Sherlock Holmes
The alleged similarities include that 'Watson has remarried and moved out of Baker Street'. The Estate also suggests that the details of Holmes' retirement are developed from elements of the final 10 stories; another element is that Holmes possesses 'a personal warmth and the capacity to express love for the first time' saying 'Conan Doyle also changed Holmes in later life by giving him a gentleness and kindness Holmes did not possess in public domain stories,'

Holmes and Watson appeared for the first time in print in 1887 and all of the works are now in the public domain, except for the last 10 in the U.S. These were published from 1923 to 1927. In June 2014 the US Court of Appeals for the 7th Circuit issued its decision in Leslie Klinger v Conan Doyle Estate, in which upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that author Leslie Klinger was free to use material in the 50 Sherlock Holmes stories and novels that were no longer protected by copyright. Writing on behalf of the Court, Circuit Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain, its story elements - including its characters - slso do. Works derived from earlier works whose copyright has expired may nonetheless be protected, but copyright will only extend to the "incremental additions of originality contributed by the authors of the derivative works." 

Last year, the U.S Supreme Court refused to hear an appeal in the matter by the Estate, meaning that that only the final 10 volumes have copyright protection until December 31, 2022.  

Sunday, 24 May 2015

Of Copyright and Spiders

In early 2006 HRH the Prince of Wales successfully sued Associated Newspapers for breach of confidence and infringement of copyright after the Mail on Sunday published extracts from Prince Charles's journals recording his impressions on a trip to Hong Kong (see IPKat posts here and here). Naturally on this blog we are only concerned about the copyright aspect of that case.
It was not disputed that Prince Charles was the author of the journals. However Associated Newspapers tried to argue that he was not the owner of the copyright, and that in fact Crown Copyright existed in the journals. The trial judge (Blackburne J) dismissed this claim fairly quickly, accepting that Prince Charles was not a servant of the Queen or of her government, and that although he might have been deputising for the Queen during the visit, his journals did not form part of his state duties and therefore were not subject to Crown Copyright. The judge then went on in turn to reject the defence arguments that the newspaper extracts were not a substantial part of the original works, that there was a fair dealing defence of reporting current events or alternatively the newspaper was dealing fairly with the works for the purposes of criticism or review. The problem with the latter defence, as the judge pointed out, was that it required that copies of the original work had previously been issued to the public, and that was obviously not the case with the Hong Kong journal, given the other part of the claim, namely breach of confidence. And finally, in a somewhat desperate attempt to find some defence against the claim of copyright infringement, the defence tried to invoke the public interest defence under section 171(3) of the Copyright Designs and Patents Act (CDPA). Once more, the trial judge was unpersuaded. Although Associated Newspapers appealed against the decision at first instance, their appeal was dismissed and Prince Charles won the injunction he was seeking to prevent Associated Newspapers from publishing any more extracts from his journals.

So why have I dug up this case from nine years ago? Well readers in the UK will be aware that the Guardian newspaper recently won an extended 5 year battle which went all the way to the Supreme Court, to have a number of Prince Charles's letters (the so-called Black Spider memos) which had been sent to government ministers, released under the Freedom of Information Act. Although several different arguments were advanced as to why they should not be released, copyright was not one of them. Why not, given the success of this approach in the earlier 2006 case?
The simple answer is: section 50(1) of the CDPA 1988. This subsection says:
50 Acts done under statutory authority.
(1) Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright.

So because the Freedom of Information Act authorises (indeed requires) that certain information is released to a member of the public, assuming the request complies with the necessary criteria, any copyright in the materials divulged is not infringed by the release, even where the copyright owner has not given permission for it to be issued to the public. The only specific protection afforded by the FoI Act is that personal data, as defined by the Data Protection Act, is exempt from disclosure.

Section 50 CDPA is both powerful yet rarely cited in either the commentaries or in cases before the courts. It effectively gives Parliament the power to bypass copyright protections in circumstances where some other statutory aim is sought, without necessarily making that fact explicit when the new legislation is undergoing scrutiny in Parliament. This was the case with the Freedom of Information Act which contains but a single reference to copyright buried away in a 2004 amendment made necessary by the devolution of various powers to the Scottish Parliament.

Friday, 22 May 2015

Is Peggy Guggenheim’s Collection a Work of Art Protected by French Copyright?

Daily newspaper Le Monde reported recently about an intriguing case unfolding in the Paris Court of Appeals. The Guardian reported about the case here. The Paris court will have to decide whether the art collection Peggy Guggenheim spent years building should be considered a « œuvre de l’esprit » and, as such, be protected by the French droit d’auteur.

Peggy Guggenheim was an American heiress who spent all her life acquiring and building a contemporary art collection. She donated it, along with her Venetian palace, the Palazzo Venier dei Leoni, to the Solomon R. Guggenheim Foundation, which was created in 1937 by her uncle. Peggy Guggenheim’s collection is now shown at the Palazzo Venier dei Leoni, where Ms. Guggenheim’s ashes are buried. In her autobiography, Peggy Guggenheim expressed her desire to see her collection remain intact in Venice, and that nothing should be touched.

Her heirs filed a suit against the Foundation in France, where they live, claiming that the way it is now presenting the collection distorts the way Peggy Guggenheim meant to have it seen. They argue that the collection is not shown in its totality, that the garden has been modified, and that the Palace now boasts a cafeteria, which makes the Foundation a mere extension of the Guggenheim museum. They also consider that organizing parties in the garden where Peggy Guggenheim is buried is akin to violating her tomb.

The Paris Court of the first instance, the Tribunal de Grande Instance, rejected their claim in July 2014 because of res judicata. Indeed, the heirs had already filed suit against the Foundation under the same claim in the 90’s. The heirs had lost, but both parties found an agreement outside the courtroom. The heirs now claim that this agreement has not been respected and again filed suit against the Foundation.

Can an Art Collection be Protected by Intellectual Property?

It remains to be seen if the Court of Paris will debate this issue, as the judges may very well consider that the case has already been judged. If they do consider the case, could French law protect an art collection as a work of the mind?

Article L. 111-1 of the French Intellectual Property Code gives the author of a “œuvre de l’esprit”, a “work of the mind,” exclusive rights over the work. Bernard Edelman, a renowned intellectual property attorney, is representing Peggy Guggenheim’s heirs, and he argued this week that a collection may be considered a work of the mind.

Indeed, the Paris Court of appeals held in 1997 that the “Musée du Cinéma Henri Langlois,” dedicated to the history of cinema, is indeed a work of the mind under French law. It had been entirely the idea of Henri Langlois who had been in sole charge of its design. The Paris Court of Appeals noted in 1997 that:  

Henri Langlois ha[d] not only selected the objects and movie projections that form this exhibit but also imagined the presentation following an order and an original scenography; in particular, as reported in several excerpts of articles and publications related to the "Musée du Cinéma," Henri Langlois conceived the exhibition as a journey back in time in film history, which he staged in a cinematographic way; it is not a simple and methodical presentation of items relating to the history of cinema, but a resolutely personal creation, expressing both the imagination of Henri Langlois and his own conceptions of history of cinema, and reflecting thus his personality.”

Bernard Edelman had published an article in 1998 about this case, where he noted that the Henri Langlois Museum was particularly original as it was not only a collection of works of arts, but also a collection of objects, such as movie artifacts, and that the collection “invites to a kind of journey, a physical ambulation.” Does the Peggy Guggenheim collection invite visitors to such a journey?

Not in the opinion of Pierre-Louis Dauzier, the attorney representing the Guggenheim Foundation, who is quoted in Le Monde as arguing that "it is undeniable that the collector makes choices, he chooses to buy. Peggy Guggenheim was a muse of the art world, she bought a lot to support artists." But he added that the way she showcased the collection was"very didactic, unoriginal, nothing more than a compilation.” Peggy Guggenheim had "not given an aesthetic sense in which the collection should be presented," an argument which Bernard Edelman disagreed with, as he produced a plan made by Peggy Guggenheim on how the collection should be presented.

The case will be decided in September. 

Image is courtesy of Flickr user John Keogh under a CC BY-NC 2.0 license.

The Age of EU Copyright Reform? An event reminder

On Tuesday 26 May I am organising an event at the London offices of RPC, devoted to discussing everything EU copyright law and policy.

There are a couple of places still available to attend in person this event, which is also possible to follow via YouTube live streaming/video.

If you wish to register, just click here!

And here's the programme as it was originally advertised:

What future awaits EU copyright? What are the reform plans (if any) of the EU Commission? What is in the pipeline for the Court of Justice of the European Union (CJEU) in the area of copyright?

These and (many) other questions will be addressed during this 3-hour event that will take place on 26 May 2015 at the London offices of RPC!
On 6 May the EU Commission is due to unveil its own Digital Single Market Strategy, which includes plans to reform EU copyright. A draft version of this document has been already leaked. From this it would appear that areas for legislative intervention in the area of copyright are likely to encompass geo-blocking, exceptions and limitations, civil enforcement, and the role of internet service providers. Meanwhile numerous amendments have been presented to the draft Report on the implementation of the InfoSoc Directive, prepared by MEP Julia Reda. Following a vote in the Legal Committee of the European Parliament, her report will be subject to a final vote in plenary in early July.

Whilst the future of EU copyright policy, including possible legislative intervention, is (slowly) unfolding in Brussels, things are as busy as ever in Luxembourg, where the CJEU has been tackling (and will continue to do so) thorny issues such as digital exhaustion, hyperlinking, exceptions and limitations, and e-lending.
This event will review developments at both policy and judicial levels.
Places are limited (with some tickets available for full time students), so to provide everybody with the opportunity to discuss fully the present and future of EU copyright.

For those who cannot attend in person, it will be also possible to follow the event in either live streaming or at a later time via YouTube.

CDP points are also available!

New Approach to Conflicts between Pre-existing Works and Derivative Works under French Law?

The balance to be struck between the rights of the author of a pre-existing work and those of the author of a work derived therefrom is a recurring and vexing issue in French copyright law.

In theory, there is no balance; rather, the author of the pre-existing work is all powerful.  Section L.113-4 of the Intellectual Property Code provides that the derivative work is the property of its author, subject to the rights of the author of the pre-exsiting work.

It has been held that this means that the author of the derivative work needs the consent of the author of the pre-existing work both at the stage of creation of the derivative work as well as with respect to the various forms of exploitation thereof.  Naturally, such consent is ususally given in exchange for a share of the revenue generated by the derivative work.

Applying the principles to a recent case involving a painter's unauthorized incorporation of photographs into his work, the Court of Appeals had held that the resultant painting constituted an infringing work and ordered its author to pay €50,000 by way of damages to the photographer.

Surprisingly, on May 15th, the French Supreme Court, citing Article 10 (2) of the European Convention on Human Rights (freedom of expression), reversed this ruling, opining that : "in so holding, without explaining in a concrete fashion how the search for a just balance between the competing rights required the order it made, the court of appeals deprived its decision of a legal basis".

It is striking that the Supreme Court explicitly refers to a "just balance" of the competing rights. This new approach, if followed by the lower courts, would limit the power of the author of a pre-existing work.  A finding of infringement and damages would only be awarded after careful consideration of such a balance between his rights and those of the author of the derivative work. 

Link to ruling here

Wednesday, 20 May 2015

Spotify leak puts streaming royalties in focus

The Verge has published details of the hitherto unknown terms of the January 2011 deal between streaming service Spotify and Sony Music, one of the two big record labels. And it makes for fascinating reading. Perhaps what isn't surprising (given the then near start up nature of Spotify in 2011) is a contract laced with 'Most Favoured Nations' provisions for Sony. The basic deal consists of annual advances paid by Spotify and a 70:30 split of advertising revenues in favour of Sony: On gross revenues the detail shows the actual split of revenue varies from rights owner to rights owner, but labels are usually getting somewhere between 55-60% and publishers 10-15%. The Sony contact unsurprisingly puts the world's second biggest record company at the top end of the range, on a 60% split. 

There are some odd quirks - Spotify seems to have a 15% buffer zone in ad sales which it doesn't have to account to Sony (and therefor cannot be shared by Sony's artistes) to cover out-of-pocket costs paid to unaffiliated third parties for ad sales commissions (subject to a maximum overall deduction of 15 percent "off the top" of such advertising revenues). Sony seems to have its own ad spots it can sell to a value of $9 million annually. How Sony accounts on for the profits from this (and how it pays over any share of advances - if it does at all) to artistes is unknown. These label advances are controversial:  Some artists and managers say they are concerned that the label's demands on digital start-ups have prevented some new services from ever getting to market, which results in a market dominated by one or two main payers - Like Spotify in which both both Universal and Sony are believed to hold equity. But of more concern for artists is what happens to unallocated advance payments and whether larger advances (which labels generally benefit from) push down ongoing royalties - where artistes do share.

The other big question is how much Sony Music gets paid per stream, and well, it’s complicated! Section 10 of the leaked contract shows how Sony Music separated it's label fees into three distinct tiers — the ad-supported free tier, online day passes (which no longer exist), and Spotify’s premium service - and a somewhat complex formula governing payments to Sony. Spotify must pay $0.00225 per minimum stream, but this rises to $0.0025 per stream if growth targets are missed.  But as the Verge says "Even with this contract, it’s still difficult to tell how much artists are getting paid by Spotify. Sony Music is likely getting considerable payouts from Spotify each year, but what it does when it gets that money — and how much of those payments actually make it down to the artists — is still unknown. Some artists have clauses in their contracts to get a larger share of the streaming revenue, and some artists are still operating under CD-era contracts that only give them 15–20 percent of their streaming revenues." But a share of which revenues?

In a related theme - and noting the above splits in gross revenues with labels collecting up to five times as much as music publishers from streaming service revenues - PRS for Music chief executive Robert Ashcroft has delivered a speech at the PRO's 2015 AGM outlining a number of issues which he says have prevented publishers and songwriters getting "fair value" for their work. Among the obstacles highlighted by Ashcroft were the continued battle against piracy, unhelpful safe harbour legislation which has been used by the likes of YouTube to protect their business models (noting "This legislation was not intended to protect those that host, curate and distribute copyright material while claiming to have no knowledge of it on the grounds that their users, and not they themselves, have the knowledge and are responsible for clearing copyright."), and the shift from downloads to streaming, which Ashcroft said is not yet paying enough to songwriters. Music Week have published the whole speech

Monday, 18 May 2015

Not Laughing all the Way to the Banc?

Back in last December, Ben told us about the US Ninth Circuit's en banc hearing of the Garcia v Google appeal. Cindy Garcia is the American actress who seems to have been tricked into playing a role in the controversial film entitled Innocence of Muslims, and she appeared for around 5 seconds in a trailer for the film which was posted on Youtube. Her appearance in the trailer earned her a number of death threats, and she took Google (the owners of Youtube) to court to force them to take down the clip, claiming that she owned the copyright in her performance. She lost at first instance, but won on appeal, with Judge Alex Kozinski giving the lead judgment in that first appeal. 

Cindy Garcia in a scene from the trailer
This decision was widely criticised, not only for its idiosyncratic interpretation of the law, but because of the implications of it for movie making in general. If the decision of the Appeal Court was allowed to stand, any actor in a feature film could theoretically hold the producers to ransom by withholding permission to use their specific performance. Unsurprisingly the case was appealed to the full eleven strong panel ('en banc') of judges of the Ninth Circuit, and their decision was handed down today.

The latest appeal court opinion reverses the earlier decision and denies Miss Garcia any copyright in her performance. What's more the court was fairly critical of Judge Kozinski's decision. In particular they were critical of Kozinski's readiness to grant an injunction against Google, despite the fact that this action appears to have constituted prior restraint contrary to the First Amendment. Kozinski, who was also one of the eleven en banc panel of judges, did not take this criticism with a shrug of the shoulders, but instead launched into a robustly worded dissent, in defence of his earlier decision. At times his argument borders on the bizarre: he considers (page 35) that since the majority en banc decision says that an individual actor does not have a copyright stake in a scene in which he or she appears, therefore there is no copyright in the scene whatsoever. He then extends this argument to say that anyone (a 'dastard') who then obtains the footage of the scene before the final film is edited, could then publish it with impunity because at the rushes stage, no copyright exists. He then implies that the en banc decision is based more on the economic interest of Google than on the law "In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won't be a party to it."

But Judge Kozinski does not have a monopoly in dubious reasoning. The lead en banc decision, written by Judge Margaret McKeown, contains the statement "Garcia's copyright claim faces yet another statutory barrier: she never fixed her acting performance in a tangible medium ...". Most UK law students will be aware of a seminal English copyright case from 1900 known as Walter v Lane, in which the House of Lords ruled that the author of an idea does not necessarily need to be the person who actually records the idea in order for copyright to exist in the work. In that particular case, Lord Roseberry, a politician of the time, was making an ex tempore speech, but because a journalist from the Times newspaper was present and recorded the speech in shorthand, copyright therefore subsisted in the speech. It seems that US jurisprudence, at least in the Ninth Circuit, has yet to establish this particular piece of precedence. Clearly Miss Garcia's performance was fixed (how else can it have appeared on Youtube?) and it seems bizarre to think no copyright exists in the video itself. That is an entirely separate matter from whether Miss Garcia has standing to bring a claim of infringment.

But for all these quirks, the en banc decision does appear to be well grounded in law, and also in common sense. Let's see if the US Supreme Court is asked to look at the case!

More on the story from Techdirt here
and the Ninth Circuit's judgment here.

WIPO Magazine takes a look at copyright

The current issue of the World Intellectual Property Organization's WIPO Magazine is unusually heavily loaded with current copyright issues.  This magazine is not a serious professional read but provides generally short and cheerfully uncomplicated views or overviews of topics that can be of substantial professional or political importance. The contents of the WIPO Magazine don't necessarily endorse any official WIPO view of copyright, or any other IP right, but nor do they generally reflect views that are inimical to the range of positions taken by that organisation.

The first four features in this issue (officially dated April but released in May) go as follows:
  • Streaming and Copyright: a Recording Industry Perspective (here)
  • Safeguarding the Income of Musicians (here)
  • Music and the Movies: an Interview with Randall Poster (here)
  • Beastie Boys Verdict Underscores the Importance of Clearing IP Rights (here)
There could have been a fifth, but 3-D Printing is Here to Stay! (here) didn't mention copyright at all: instead, it focused on the first live concert played by musicians using instruments created by 3-D printing (a sample of which can be seen on the right)..