1709 Blog: for all the copyright community

Saturday, 5 September 2015

Update: City of Inglewood Cannot Assert Copyright in Council Meeting Videos

I wrote last month about the case of City of Inglewood v. Joseph Teixeira, where the city of Inglewood in California filed suit against one of its residents who had used parts of videos of its council meetings to create his own videos criticizing decisions made by the council or some of its members, and posted them online under the name “Dehol Truth.”

On August 20, 2015, Judge Michael W. Fitzgerald granted Defendant’s motion to dismiss, finding that Plaintiff was barred as a matter of law from claiming that the videos were infringing its copyright, and that even if Plaintiff could claim copyright infringement, Defendant’s use would be fair.
The City May Not Assert Copyright Protection Over City Council Videos

While Section 105 of the Copyright Act bars the federal government from protecting any of its works by copyright, it applies only to the U.S. government, and the issue of copyright protection for works of state and local government is governed by state law. Judge Fitzgerald found that “California law establishes a strong presumption in favor of public access to public materials and places,”citing as example the California Public Records Act (CPRA) which, as noted by the Supreme Court of California in Filarsky v. Superior Court, was enacted “for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies.
Judge Fitzgerald was persuaded that the California court of appeals County of Santa Clara v. Superior Court case applied. In this case, the court found that a California public entity may not assert copyright in one of its works, in the absence of “an affirmative grant of authority to obtain and hold copyrights.”
Even If They Would be Protected by Copyright, the Use of the Videos Would be Fair
Judge Fitzgerald found that each of the four fair use factors were in favor of Defendants.
The first factor, purpose and character of use, was in its favor. Section 107 of the Copyright Act gives criticism or comment as examples of fair use of a work protected by copyright. For Judge Fitzgerald, Defendant’s purpose in creating his videos “falls directly within two of the categories explicitly referenced in §107: criticism and commentary.”
While Plaintiff had argued that Defendant had merely republished council meeting videos, Judge Fitzgerald found the videos at stake to be “highly transformative,” explaining that “[t]he clips are carefully chosen and heavily edited” and that Defendant “juxtaposes them with other materials, puts his own commentary over and around them, and used specific clips to underscore and support the points he makes in his videos.”
For Judge Fitzgerald, Defendant’s videos “constitute core First Amendment protected speech,” citing several cases, such as National Rifle Ass’n of America v. Handgun Control Federation of Ohio and Consumers Union of United States, Inc. v. Gen.Signal Corp.,  to support his well-settled assertion that “[t]he fair use doctrine generally provides a greater scope of protection when the works involve matters of public concerns.”
Even if the original videos would be protected by copyright, their “barely creative nature” would make this protection very narrow, and thus the second fair use factor, the nature of the original work, was also in Defendant’s favor. As for the third factor, the amount and substantiality of the portion used, Judge Fitzgerald noted that Defendant had used only parts of the original works, and that he had added each time his own written or oral commentary at the bottom of the screen. As such, the third factor “strongly favors a finding of fair use.” As for the fourth and last factor, the effect of the use on the potential market, it also “strongly favors” Defendant, as [Surprise Surprise!] “there is no market for the City Council Videos and the accused works are not a substitute for the original works.”

This decision leaves, however, one question open: why, oh why, did the City of Inglewood think it would be judicious to file such a suit? 

Image is courtesy of Flickr user DRs Kulturarvsprojektunder a CC BY-SA 2.0 license.

Sherlock Holmes case settles

In May we reported that after a series of ill advised attacks on writers properly using what were clearly public domain stories and materials featuring the iconic fictional detective Sherlock Holmes, the Estate of Sir Arthur Conan Doyle had nevertheless decided to sue a Hollywood film producer a new movie which follows Sherlock Holmes during his retirement. The author's Estate claimed that the plot of the new film "Mr Holmes", starring Sir Ian McKellen and based on the Mitch Cullin novel "A Slight Trick of the Mind" infringed 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. The action was filed with the United States District Court of New Mexico.

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 - also 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."  The Supreme Court refused an appeal.

But there is a difference here: the allegation was that material had been copied from a work that was still in copyright:  "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. The alleged similarities included that development that 'Dr Watson has remarried and moved out of Baker Street'. The Estate also suggested that the details of Holmes' retirement are developed from elements of the final 10 stories; that  Cullin's book copies the development 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'. The Estate also claimed that Cullin's book copied entire passages from copyrighted stories and even used the same address for Watson found in  “The Adventure of the Illustrious Client” which is still protected.

Now Benjamin Allison, the attorney for the Arthur Conan Doyle Estate, has told TheWrap that it has reached a settlement in principle with filmmakers: The terms of the settlement are still unknown, but Cullin’s novel will cite the use of copyrighted material moving forward. Law360 confirms that papers have been filed to settle the case. 

In a somewhat more friendly approach than earlier legal actions and public statements, Mr Allison went on to say “We admire both the book and the movie — and we have told the defendants that” adding “But much of the setting, plot and especially the character and emotional makeup of Sherlock Holmes as an older man come straight from copyrighted stories. Those stories are among the most original and creative works of modern fiction, and they should not be ripped off just because older Conan Doyle stories are in the public domain.”

The film has grossed close to $17 million since its domestic (US) release on July 17.


Friday, 4 September 2015

EPIP goes to Glasgow

This Blogger was very pleased to attend (part of) this week's conference of EPIP - the European Policy for Intellectual Property Association (an organisation which deserves to be better known outside of academic circles), hosted by University of Glasgow and, in particular, by CREATe, the RCUK Centre for Copyright and New Business Models in the Creative Economy.

The University has strong links to Glasgow's creative renaissance, which were reflected upon in the Conference's opening remarks from the Vice-Chancellor.  This was followed by a keynote from Ian Hargreaves reflecting on his Report and its legacy, to which Julia Reda gave a thoughtful response, cautioning against "policy-based evidence making" in IP, as opposed to the more conventional "evidence-based policy making".

The tensions between policy development and evidence were very much in evidence throughout the event - both in plenary sessions and in some of the parallel panel sessions I attended (and in one instance, chaired).  You can read the full programme and abstracts of all of the papers here.  More about CREATe here and more about the event here and EPIP should be here [although the link seems to be down at present].

Also worth mentioning is the launch of the CREATe Copyright Evidence Wiki - bookmark that page for a reference point at which to start looking for academic papers exploring particular aspects of copyright.

Overall, I found the event a fascinating insight into a part of the copyright (and broader IP) world with which I rarely interface.  Other attendees also described the event as fascinating, stimulating

What was notable to this author, one of few present from outside of academia and policy-making (nods to the smattering of others, including Spotify, Microsoft, the BFI and PRS) is how much more needs to be done to bring together those undertaking the large volumes of research into copyright (and other IP) topics with actual policy-makers and, especially, with the world of those who make a living directly or indirectly from the copyright-related industries.   This was a theme which, it appears, was echoed in Professor Pamela Samuelson's closing speech (judging only from tweets and other indirect reports - I was back in London working for clients by then!), where she also observed the surprisingly limited amount of debate around the DSM issues (the notable exceptions being an insightful paper from Giuseppe Mazziotti of Trinity College, Dublin, delivered without slides following a technical glitch; and a piece of empirical research on iTunes and geographical availability of content which, while interesting, appeared to raise as many questions as it answered.

Olympic no go for Sano as logo to go in copying k.o.

Kenjiro Sano's design for the Tokyo Olympic's official logo has been dropped after a claim by the Belgian designer Olivier Debie who argued that the design was very similar to one he created for the Theatre De Liege. When we first noted this spat, we cast some doubt on the words of IOC vice-president John Coates who told a meeting of the Olympic management: "The IOC and Tokyo have checked all the copyright registers prior to this launch and that logo in Belgium isn't protected". Now the governor of Tokyo has said he felt 'betrayed' over the affair.

Mr Sano's denials of copying have been somewhat undermined by other question marks over his work: Firstly it appears that he used uncleared photographs 'borrowed' from the web for his presentations to the Olympic Committee, but perhaps more importantly, the Times reports that he has now admitted that a range of promotional bags produced for brewer Suntory contained copied images, blaming staff at his studio. A zoo is Nagoya is also reportedly checking similarities between its own Sano designed logo and the logo of a museum in Costa Rica. Tokyo organizing Committee head Toshio Muto announced at a press conference that the logo had been withdrawn by Sano. He said the Committee would "respect the decision" and develop a new design. In the meantime, the Tokyo Olympics would use a logo from a past bid. More on CNN here.

CCIA releases white paper on US copyright reform

As 1709 Blog readers may be aware of, debate is currently being undertaken in the US regarding possible reforms in the area of copyright. Among other things, the House Judiciary Committee could see substantive copyright reform legislation introduced before the end of this year.

To participate in such a discussion, a few days ago the Computer and Communications Industry Association (CCIA) released a white paper on Copyright Reform for a Digital Economy along with webinar by author and CCIA Vice President Matt Schruers.

As reported in the relevant press released, according to Mr Schruers “Technological innovations have changed the U.S. economy by rapidly reducing the cost of content creation, distribution, and discovery. In an information economy, copyright reform is no longer a conversation about a few specific industries; it’s a conversation about how we regulate most of the nation’s industry — including many of our most successful export sectors. As policymakers consider reform measures, they will need to accommodate new technology and provide business certainty within the constraints of a complex existing copyright system and international obligations”.

Thursday, 3 September 2015

Fox News Anchor Claims Violation of Right of Publicity in Toy Hamster “Harris Faulkner”

Harris Faulkner, a Fox News anchor, is suing toy company Hasbro, for false endorsement, unfair competition, and violation of her right to publicity, claiming that Hasbro used her likeness without authorization to create a “Harris Faulkner” toy hamster, which is part since 2014 of Hasbro’s “Littlest Pet Shop” line. The case is Harris Faulkner v. Hasbro, 2:15-cv-06518.
The complaint details two decades of Plaintiff’s experience and notes that Plaintiff does not endorse any products, as this “would be a breach of journalistic ethics, would directly harm her professional credibility, and would be in violation of her contractual obligations to her employer.”

The fact that this toy is manufactured and sold by Hasbro “is extremely concerning and distressing to [Plaintiff].” The toy is labeled a choking hazard, and this made Plaintiff “extremely distressed [as] her name has been wrongly associated with a plastic toy that is a known choking hazard that risks harming small children.” Also, “Hasbro’s portrayal of Faulkner as a rodent is demeaning and insulting.”Since this is back-to-school season, perhaps this could be a useful line for parents asked to shelter their kid’s class gerbil for the weekend: rodents are bad, not cute, little Timmy, say bye bye to gerby!
New Jersey Recognizes a Common Law Right to Publicity
New Jersey does not have a right of publicity statute, but has a common law right of publicity. The complaint does not cite any case law, nor does it go into the details of what are the elements of a common law right of publicity claim in New Jersey, so I did some research. New Jersey recognizes a right to publicity since 1907, date of the Edison v. Edison Polyform Mfg. Co. case, where Thomas Edison successfully claimed that defendant could not use “Edison Polyform” as the name of a painkiller he manufactured, even though he had bought the painkiller formula created by Thomas Edison himself. However, Defendant had not followed exactly the original formula, and also had used Thomas Edison image in its advertising, thus creating  the false impression that the famous inventor had endorsed the product.
Under this case law, Plaintiff in our case could claim that Hasbro used her name without authorization. However, she would need to prove that plaintiff meant to use HER name, not a generic HARRIS FAULKNER name. The complaint claims that Plaintiff is “uniquely named” but Faulkner is, after all, also the name of a famous writer, and Harris is still a pretty common name, albeit not for a woman. I must confess that I did not know Plaintiff’s name until today, and believe that she is mostly known by regular Fox News viewers and by television and media buffs.
Defendant would have to explain to the court why it chose this particular name for its toy. If, say, the Hasbro main designer is named Joe Harris, and he wrote his MA thesis on “Hamsters in the Works of William Faulkner,” this may get the attention of the judge.
But imitating a person is also considered to be a right of publicity violation in New Jersey, as recognized by the District Court of New Jersey in 1981 in the Estate of Presley v. Russen case, and so, in our case, Plaintiff could argue that the toy imitates her, if she can convince the court that the toy bears at least some resemblance to her.
Is there a physical resemblance between the anchor and the toy?

The complaint states that the toy “bear[s] a physical resemblance to [Plaintiff]’s traditional professional appearance, in particular the tone of its complexion, the shape of its eyes, and the design of its eye makeup.”
I would be hard-pressed to find much physical resemblance, if any, between Plaintiff and her eponymous toy, which arguably resembles Kimba, Bambi, and other big round- eyed kawaii toys (see here or here), and also resembles human-like manga characters. Granted, I studied law, not zoology, but this toy does not even look like a rodent. The plastic creature on the right looks like Simba with a comb-over, and the one on the left looks like a cat with a bad case of pink-eye. So, I would say there is no physical likeness between the anchor and the toy. What do you think?
Calculating Damages in Right of Publicity Cases
Plaintiff is asking the court to award her $5,000,000 in damages, which include actual damages and profit earned from the use of her name, likeness, identity or persona. I recently found this not- so-recent (2008) but interesting article on how to calculate damages in right of publicity cases. Its author, Lawrence E. Heller, notes that “[d]etermining which methodology a plaintiff can effectively use to meet the burden of proving that the defendant’s profits are attributable to the unauthorized use of the plaintiff’s image can be problematic” and offers some clues, among them a “trailer test”, where consumers are asked to spend poker chips on products bearing Plaintiff’s images and on others which do not. This is a rather interesting method, but could be quite costly. Other methods are also described.
Hasbro will probably move to dismiss. I will keep you posted.

The CopyKat - keeping bang up to date with the technoKats

Facebook has responded to criticism from top web video creators who have accused the social networking giant for failing to prevent Facebok users  from posting their videos without permission.  Facebook already has a technology partner, Audible Magic, that helps it identify unauthorized video content through audio fingerprinting and Now the company is introducing a video matching technology product designed to quickly identify videos uploaded by people that are duplicates of videos already uploaded directly by the creators. As it stands, the new technology will not be fully automated. Creators will have access to a Web-based dashboard that will allow them to identify videos they’d like to monitor. If the system finds a matching video, the creators then have the option to report the clips to Facebook. More here.

Having recently 'upgraded' to Windows 10 operating system  I can't say that I am that impressed with Microsoft at the moment. The new software is counter intuitive - clunky - and all the bad things that Microsft should probably avoid developing when faced with the growing dominance of all things Apple. What I didn't notice was that Microsoft had recently announced further steps to protect Windows 10. Luckily Ian Dowling at Reddie & Grose did and in a very good article on digital piracy, Ian notes that according to an updated End User License Agreement from Microsoft, "Windows 10 will allow Microsoft to download software updates or configuration changes, including those that prevent access to services, playing counterfeit games, or using unauthorised hardware peripheral devices. Presumably in an attempt to roll out such countermeasures against all users, Microsoft has been offering free upgrades to Windows 10 to all users of Windows 7 or 8.1, including those running non-genuine versions of the operating system, seemingly an attempt to lure copyright infringers into its anti-piracy net." 

The DRM protection on Netflix's ultra-high definition content has been broken for the first time, allowing pirates to upload a 4K episode of Breaking Bad to a private torrent site - a mighty 18GB of high quality piracy. TorrentFreak reports that iON uploaded the episode to a private torrent tracker. It has already been downloaded a few times and is expected to make it to public providers eventually.  Leaked drafts of the 4K copy protection agreement between Sony and Netflix reveals that the streams are generally well-protected. They also include a watermark so that leaks can be traced back to the source.

And so it comes to this: ABS Entertainment, which owns a catalogue of golden oldie recordings, including tracks by Al Green, has filed lawsuits in both California and New York against US radio giants CBS, iHeartMedia and Cumulus, claiming the broadcasters are infringing its copyrights by playing pre-1972 repertoire without licence. The radio firms are expected to argue against any suggestion that they need licences to play pre-1972 sound recordings, with CBS Radio already saying it will "vigorously defend" the lawsuits. You can read more on this whole topic, and the current claims brought by Flo & Eddie of the Turtles , the claims brought by the record labels and much much more on pre-1972 copyright legal shenanigans on CMU here

Thanks to a recent contract with Sony Music, Russia's Zvooq has become the country's only fully licensed and independent music service. The platform was already licensed by Warner Music and Universal. Currently, Zvooq uses a freemium model - incorporating both ad-sponsored and subscription tiers -- and is planning to introduce a new subscription model for the market, in which a specific advertising brand will pay for subscriptions of selected users.
And what of those MegaUpload servers - locked away and unused ever since the anti-piracy investigations into Kim Dotcom and his team? Well, the US government doesnt need them and doesn't want them and doesn't want to pay for them .... United States Attorney Dana Boente has now said: "The government has already completed its acquisition of data from the Carpathia servers authorised by the warrant, which the defendants will be entitled to during discovery. As such, there is no basis for the court to order the government to assume possession of the Carpathia servers or reimburse Carpathia for 'allocated costs' related to their continued maintenance". TorrentFreak says that Boente told the court "The United States continues to request that the court deny any effort to impose unprecedented financial or supervisory obligations on the United States related to the Carpathia Servers".

The online system used to register initial copyright claims at the U.S. Library of Congress has failed after scheduled maintainence on August 29th - with no solution to the problems with eCO on the horizon. sight. This means users will have to revert to 'snail mail' and post in paper copies of registration forms for the time being. The eCO website informs users that there is no "estimated time for service resumption." A spokesperson told FCW that the CIO team is "working to restore the system as quickly as possible."

A Canadian firm which had been releasing low cost CDs of public domain recordings by the Beatles, the Beach Boys  and the Rolling Stones, amongst others, is accusing two major record labels of using their clout and their combination of both recording and music copyrights to circumvent provisions of Canadian copyright law that had put some recordings by the Fab Four and others into the public domain. The term of copyright protection for sound recordings for Canada was extended from 50 years to 70 years this year. The extension was not applied retrospectively, so gives the extended term of protection to recordings from 1965 onwards. Now record label Stargrove has filed a 408 page complaint with the Canadian Competition Tribunal claiming market interference by the vertically integrated music giants, Universal and Sony, who have blocked releases of public domain sound recordings: It is alleged their publishing arms (for Sony this is Sony/ATV) instructed the local music collection society Canadian Musical Reproduction Rights Agency (CMRRA) to refuse mechanical licences for the compositions included in the recordings. The complaint says the refusal of licences means that rights holders are denying Stargrove mechanical licences on the usual trade terms (contra to Section 75(1) of the Competition Act), and that the moves are a violation of the illegal price maintenance provisions (Section 76 of the Competition Act) designed to keep Stargrove out of the market and maintain market share and higher pricing, and a further violation of Section 77 of the Competition Act. Stargrove has asked the Competition Tribunal to order a stop to the violations and to enter into an agreement on standard trade terms. More here.

And finally - here's a novel way to have a go at those who might, and might not, be illegally streaming or downloading movies. U.S. attorney Carl Crowell has taken the unusual step of using Oregon's"going equipped" state laws against them on behalf of movie company clients - in effect trying to argue that mere possession of Popcorn Time software (a service that has been called the "Netflix for Torrenting") is a criminal act under Oregon state law ORS 164.235 which bars the possession of "burglary tools" and which says that a person commits the crime of possession of a burglary tool or theft device if the person possesses a burglary tool or theft device and the person (a) Intends to use the tool or device to commit or facilitate … a theft by a physical taking; or (b) Knows that another person intends to use the tool or device to commit or facilitate a … theft by a physical taking. In the UK ISPs have been ordered by the High Court to block access to websites hosting Popcorn Time software. More on TechDirt here.

Wednesday, 2 September 2015

Neighbouring rights and Fascist Italy: a challenging article

Life is full of surprises. Volume 5 issue 3 of the Queen Mary Journal of Intellectual Property (QMJIP) has just been published, and with it comes news of its choice of free-access-for-all-readers article: it's "Protecting the musicians and/or the record industry? On the history of ‘neighbouring rights’ and the role of Fascist Italy". The author is Copyriot anti-copyright blogger Rasmus Fleischer (Department of Economic History, Stockholm University) and the abstract reads like this:
"The early history of the so-called ‘neighbouring rights’, as part of the history of copyright, has so far been given very little attention by scholars. This article sheds light on a European contest over the rights in sound recordings during the 1930s, 1940s and 1950s. This forms an important part of the background to the Rome Convention of 1961. The article first looks separately at how musicians’ unions and the record industry were raising different demands for protective legislation, motivated by the use of new electronic media. At the beginning, no one imagined that these protections would be bundled together as ‘neighbouring rights’. While the International Labour Organization (ILO) put great efforts into creating a convention protecting only the performers, another actor turned out to be more influential in the long run, proposing a hierarchical bundling of rights in which only record companies were entitled to compensation for the use of recordings. This actor was the Fascist government of Italy. The article argues that there are some continuities from the legal philosophy of Italian Fascism to the system of ‘neighbouring rights’ established in the Rome Convention".
A good deal of effort has gone into identifying and evaluating source materials and, while not every reader of this blog may subscribe to the author's feelings about copyright or some of the comments contained in this article's lengthy Conclusion, it is a worthy contribution to discussion and debate about the balance of power and politics that has either shaped the copyright law we have to day or has allowed it to take that shape.