1709 Blog: for all the copyright community

Thursday, 26 February 2015

Loser pays? This might be buyer or seller when it comes to artists' resale royalties says CJEU

Judgment was given today in Case C-41/14 Christie's France SNC v Syndicat national des antiquaires, a reference from the French Cour de Cassation for a preliminary ruling from the Court of Justice of the European Union (CJEU). This was not one of the most taxing copyright-related cases to demand the court's attention and the CJEU was able to dispense with it, from start to finish, in just over 13 months -- an impressive performance if one recalls that, only a few years ago, judgments in intellectual property cases often took twice that length of time.  The case is summarised with exemplary clarity by the Curia press release, reproduced below for your convenience:
The cost of the royalty that has to be paid to the author on any resale of a work of art by an art market professional may be borne, definitively, by the seller or the buyer

Although under EU law the royalty is, in principle, to be paid by the seller, the Member States may specify another person from among the professional persons referred to in Directive 2001/84

The resale right is defined in an EU Directive [Directive 2001/84 on the resale right for the benefit of the author of an original work of art] as the right of the author of an original work of art to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work. That right applies to all acts of resale involving art market professionals (salesrooms, art galleries and, in general, dealers in works of art) as sellers, buyers or intermediaries.

Christie’s France, the French subsidiary of the multinational firm Christie’s, regularly organises auctions of works of art. A resale royalty is payable in respect of some of those sales. Christie’s France has provided in its general sales conditions that, for certain lots marked in its catalogue, it will collect from the buyer, for and on behalf of the seller, the amount representing the resale royalty.

The Syndicat National des Antiquaires (SNA) takes the view that, in placing the onus of the resale royalty on the buyer, Christie’s France’s general conditions amount to unfair competition. Christie’s France considers that the Directive states without further clarification or restriction that the royalty is payable by the seller and thus does not preclude a contractual arrangement regarding responsibility for the payment of the royalty. Hearing the case, the Cour de cassation (Court of Cassation), France, has asked the Court of Justice whether the seller is always definitively to bear the cost of the resale royalty or whether it is possible to depart from that rule by agreement

In today’s judgment the Court declares that the Member States alone may determine the person liable for the royalty. Although Directive 2001/84 provides that the person by whom the royalty is payable is, in principle, the seller, it none the less allows for a derogation from that rule and thus leaves the Member States at liberty to specify another person from among the professional persons referred to in the Directive who, alone or with the seller, will assume liability for the payment of the royalty. The person who has been designated in that way by national law as the person by whom the royalty is payable may agree with any other person, including the buyer, that that other person will definitively bear, in whole or in part, the cost of the royalty, provided that a contractual arrangement of that kind does not affect the obligations and liability which the person by whom the royalty is payable has towards the author. The Court points out that such a derogation is in keeping with the Directive’s objective of bringing to an end distortions of competition in the art market, since the harmonisation concerned is limited to those domestic provisions which have the most direct impact on the functioning of the internal market. For the purpose of achieving that objective, thus circumscribed, it is necessary to make provision as to the person liable for payment of the royalty and as to the rules for establishing the amount of the royalty. However, such provision is not necessary with regard to the question as to who, definitively, will bear the cost of the royalty.

The Court does not exclude the possibility that such a derogation may to some extent have a distorting effect on the functioning of the internal market. However, such an effect is only indirect since it arises as a result of contractual arrangements that are independent of the payment of the royalty to the author, for which the person by whom the royalty is payable remains liable.
Given that Article 1(4) of the Directive reads
"The royalty shall be payable by the seller. Member States may provide that one of the natural or legal persons ... other than the seller shall alone be liable or shall share liability with the seller for payment of the royalty",
it is difficult to see how even the CJEU was going to persuaded to give a different ruling,

There's also a Katpost from fellow blogger Eleonora here, which you are invited to read if you feel in need of further inspiration.

Monday, 23 February 2015

The CopyKat - trolling tonight

Freeplay, the US-based library music company, which has been providing music for bedroom filmmakers for their YouTube videos, has filed litigation against four 'multi-channel networks', accusing the the firms of abusing licences they had designed for user-generated videos to circumvent having to pay for the music used in their commercial content. The companies being sued include some of the big guns in the growing MCN space: Disney's Maker Studios, DreamWorks Animation's Awesomeness, Big Frame and BroadbandTV Corp. Two more - Machinima and Collective Digital Studio - which launched pre-emptive strikes against Freeplay last week, are set to receive countersuits from the music rights owner in due course. Freeplay offers a licence to amateur video makers that allows them to use music from the Freeplay library free of charge, on the condition Freeplay is able to subsequently monetise that content on YouTube using Google's Content-ID system to collect ad revenues. But Freeplay charges commercial content producers $250 a year for a licence - and says that licence is designed for personal Youtube channels - NOT MCNS. Freeplay say they used the audio fingerprint technology TuneSat to locate their music on numerous MCN-operated channels all being used without the right licence. The lawsuits allege that Freeplay contacted the four MCNs about licensing the music, but that they were not willing to negotiate. The suits seek unspecified monetary damages and demand that the infringement cease. Machinima and Collective Digital Studio argue that Freeplay is deliberately confusing amatuer video makers into using the free sync music from Freeplay's libraries - only to be subsequently invoiced, or threatened with legal action when the usage is classified as commercial. The MCNs go as far call Freeplay's approach 'copyright trolling'. More on Variety here.

And more on alleged trolling - this tme its all about a Australian wine maker called Stephen Moignard who has designed an algorithm called Plfer to hunt down "substantially similar" text across multiple websites and serve demand letters to alleged copyright infringers. TechDirt is of the opinion that Plfer's detection algorithm bears many similarities to commercial plagiarism detection software, albeit with a few tweaks that allow it to bypass web formatting and other obstacles that might throw off comparisons. TechDirt also have some queries about Mr Moignard's maths and interpretation of the law - and all in all its a very interesting read, even for luddites like the CopyKat. The beta site for Plfer is here and the value of copyright infringements currently 'detected' is a whopping $1,413,463,665.

And finally on this: Two people targeted by one of Rightscorp's anti-piracy programmes in the U.S. say that the somewhat controversial company has violated America's Telephone Consumer Protection Act by sending them automated calls and text messages without permission. In a lawsuit filed with the federal court in Georgia, Melissa Brown and Ben Jenkins deny downloading any copyright infringing content, but say Rightscorp broke communication laws by following up an initial letter with calls and texts attempting to gain a settlement for alleged infringements.

The Daily Mail reports that a German historical society is set to publish an annotated edition of Hitler's controversial tome Mein Kampf after the book's copyright expires later this year. The Munich Institute for Contemporary History (IfZ) says it will publish a two-volume edition of the book in which the Nazi leader outlines his anti-Semitic beliefs and plans for world domination. The new volume will consist of a total of 2,000 pages. However just 780 of these will contain Hitler's original text - the rest will be comments from contributors and the work will also contain a new introduction and index. Copyright in the book is held by the State of Bavaria. In January 2012 the 1709 blog reported that the District Court of Munich I (LG München I) had issued a preliminary injunction on behalf of the Bavarian state government, prohibiting the planned publication of commented excerpts of Mein Kampf by British publisher Peter McGee because of the copyright. The injuction was subsequently upheld. Bavaria also indicated that Germany's anti-Nazi laws might be a bar publication - now more pertinent as copyright expires 70 years after Hitlers death in 1945.  In Decmnber 2013, reversing a pervious postion, The Bavarian governor's chief of staff, Christine Haderthauer, said the book amounted to incitement to hatred and the government would file criminal complaints if anyone tried to publish the book when the copyright expired.  In 2012 the then President of Germany's Central Council of Jews said he hoped that the reprints would ‘demystify" the book. "I'm an Internet junkie myself" he said. "Everyone can already find the book on the Web." However, an American Jewish group countered saying the publication plans could be morally offensive and last year Dieter Graumann, president of the Central Council of Jews in Germany, said that he was strongly opposed to the book going on sale. 

Vivian Maier - self portrait
The epic battle over who owns the copyright in the photography of Chicago nanny Vivian Maier has had a couple of new skirmishes, Maier, who had a 'secert life' as a photographer, snapped over 150,000 images in and around Chigago from the 1950s onwards. Maier made no attempt herself to sell or exploit her intimate and often-gritty photography of everyday people, rich and poor, and often submitted the films she took for developing under false names. She never registered any copyrights in her images. A few years ago interest in her work exploded, and prints of her photographs from this bygone era have sold for thousands of dollars.John Maloof, a 33-year-old former Chicago real estate agent who features in and co-directs the Oscar nominated documentary Finding Vivian Maier and who has a large collection of her work, is facing a claim that might stop him exploitating the images and indeed the film. In 2007 Maloof bought a box full of Maier's negatives at auction for $380 from a repossessed storage locker and he now owns the vast majority of her work, more than 100,000 images that are mostly in negatives or undeveloped film. He traced Maier's whereabouts to the Chicago area in 2009, but too late - she had recently died at the age of 83. 1709 readers will know only to well that possession of the negatives and prints is not ownership of the copyright in those images.  the 1976 U.S. Copyright Act automatically gave federal copyright protection to works that were created but neither published nor registered before January 1, 1978 and that terj extends for 70 years after the death of the author. And Maloof seems to have found an heir who "assigned" him copyrights. Now enter Virginia-based David Deal, a longtime commercial photographer who read about Maier as he completed a law degree: he has sparked the legal fight by filing a notice in a Chicago probate court identifying a relative of Maier who lives in France, retired bureaucrat Francis Baille, a first cousin once removed who apararently had never heard of his increasingly famous relative. Maloof counters by saying  Maier's closest relative is one Sylvain Jaussaud, also described as a first cousin once removed. Jaussaud, who did know Maier and appears Maloof's film, apparently signed over the copyrights in Maier's work to Maloof. And now another party has joined into the tussle: Cook County, which represents Maier's estate (in the interim), woud seemingly hold all copyrights at the moment in the abscence of any assignment by Maier herself. It appears Cook County lawyers are speaking with Maloof and we can only hope that a sensble solution can be reached so this extraordinary body of work doesn't get locked away. More here and a September article on the IPKat by Marie-Andree Weiss here and on Art & Artifice here.

The Oscars are out so a couple of film updates to finish: Director Dan Gilroy, Bold Films, Open Road Films and NBC Universal Media have been accused of copyright infringement amid allegations that the plot of the Oscar-nominated movie 'Nightcrawler' was lifted from a film by a Utah filmmaker Richard Dutcher. Dutcher has filed a lawsuit in Salt Lake City's US District Court, claiming Nightcrawler bears striking similarities to his 2007 movie 'Falling', about a freelance news videographer who scans police radio channels and captures footage of a murder in progress (which on paper sounds remarkably similar to the excellent Nighcrawler). Dutcher's film, which was written in 1999, only received a limited release in Los Angeles and Salt Lake City, but he is convinced it gave Gilroy the idea for his 2014 crime thriller, which stars the creepy but magnifcent Jake Gyllenhaal in the lead role. We shall see. 
 And a woman who filed a lawsuit against Disney’s ‘Frozen’ in late 2014 over alleged copyright infringement of her life memoirs (no, seriously!) has perhaps unsurprisingly  had her case thrown out by a Judge. Isabella Tanikumi decided to take legal action against Disney because, in her view, the film’s story ripped off her real-life memoirs, titled ‘Yearnings of the Heart’, which revolved around her family’s lives in the mountainous areas of Peru.  U.S. District Judge William Martini disagreed stated that the themes appearing in Frozen and Yearnings of the Heart are expressed differently. All the themes that Tanikumi listed are general plot ideas and themes that are not protected by copyright law and the judge noted no substantial similarities between the two works. More here.

At the Oscars, Birdman picked up best picture, best cinematography, best original screenplay and best dirrector (Alejandro González Iñárritu); 
Eddie Redmayne picked up best actor for his role as Dr Stephen Hawking in The Theory of Everything and Julianne Moore collected best actress for Still Alice. J K Simmons won best supporting actor (in Whiplash) and Patricia Arquette won best supporting actress (in Boyhood). Whiplash also picked up Ocsars for best editing and best sound mix and The Grand Budapest Hotel won Oscars for best production design, best costume design, best make up and best original music score by Alexandre Desplat . The Imitation Game won best adapted screenplay and Interstellar the award for achievement in visual effects .Best Song gong went to John Legend and Common for 'Glory', the theme song from 'Selma'  More here.

Saturday, 21 February 2015

Fox News Motion for Summary Judgment Denied in 9/11 Photograph Fair Use Case

On February 10, Judge Edgardo Ramos from the Southern District of New York (SDNY) denied Fox News Network’s motion for summary judgment of a copyright infringement suit filed by the copyright holder of an iconic 9/11 photograph. The case is North Jersey Media Group Inc. v. Jeanine Pirro and Fox News Network, LLC.

Plaintiff is North Jersey Media Group, the publisher of New Jersey newspaper The Record. It holds the copyright of the widely published photograph of three New York firefighters raising the American flag near the ruins of the World Trade Center.  This photograph was taken on 9/11 by photojournalist Thomas E. Franklin while on assignment from The Record. It has since geneated more than $1 million in licensing revenue.

On September 11, 2013, a Fox News employee posted this photograph on the Facebook page of one of Fox’s television shows, Justice with Judge Jeanine, and chose to associate it with another iconic photograph, taken by Joe Rosenthal, which shows four U.S. Marines raising the American flag on Iwo Jima, during World War II.  The two images were not otherwise altered, but the employee juxtaposed #neverforget on the images before posting them on Facebook.

Plaintiff contacted Fox News on September 13, 2013, asking the photograph to be taken down. The posting was deleted a few days later. In October 2013, Plaintiff filed a copyright infringement suit against Jeanine Pirro, aka Judge Jeanine, and against the network. Defendants moved for summary judgment, claiming fair use. The SDNY denied the motion, after having examined the four fair use factors set forth by Section 107 of the Copyright Act.
The Purpose of this Truck is to Gather News 

First Fair Use Factor: Purpose and Character of the Use

The Supreme Court explained in 1994 in its Campbell v. Acuff-Rose case that, under this first factor,  courts must assess whether the new work merely supersedes the original work or if it “instead adds something new, with a further purpose or different character [and] alter[s] the first [work] with new expression, meaning, or message, … in other words, whether and to what extent the new work is "transformative.”

Defendants argued that their use was transformative as it drew a parallel between 9/11 and Iwo Jima and, as such, had to be categorized as comment under Section 107, which lists comments as one of the categories of use which may be protected by fair use. Defendants also argued that adding the hashtag #neverforget “signaled FoxNews’ participation in an ongoing, global discussion” about 9/11, and that they had altered the original work by using a cropped lower-resolution version of it.
Judge Ramos was not convinced by these arguments, as these changes were “barely discernable” (sic) and because Second Circuit case law requires more changes for the use to be transformative. Judge Ramos gave as examples the works created by Richard Prince from Patrick Cariou’s photographs of Rastafarians used by Richard Prince to create his “Canal Zone” series, noting that Prince had varied the portions of the original works used, and had also changed the scale and medium of the original works. 

One remembers that the Second Circuit had found twenty-five out of thirty of Prince’s works to be transformative in Cariou v. Prince. Judge Ramos concluded that the 9/11 photograph was even less transformed by Defendants than the five Prince works which the Second Circuit did not find to be transformative. It is interesting to see how the thirty works at stake in Cariou were used by Judge Ramos as visual fair use “benchmarks” to assess whether a particular use is transformative enough to be protected by fair use. 

Judge Ramos also noted that “#neverforget was a ubiquitous presence on social media that day [and that] [t]hus Fox News ‘commentary, if such it was, merely amounted to exclaiming “Me too.” The first factor was found to favor Plaintiff.

Second Fair Use Factor: Commercial Use and Nature and of the Work

Fox News operates for profit and Judge Jeanine’s Facebook page “is intended to capture revenues for the network.” Therefore, the use of the protected work was commercial. However, Second Circuit courts, when assessing fair use, discount the fact that almost all newspapers are published for profit. Doing otherwise would mean that commercial uses are presumptively not protected by fair use. That was not the intent of the Congress, according to the Supreme Court (Campbell, at 584).

Instead, courts consider that “the more transformative the work, the less important the commercial purpose.” As Judge Ramos did not find Defendants’use to be transformative, the second factor had thus to be carefully weighed. He concluded that there was “at least a question of material fact as to whether Fox News posted [the combined photographs] for the purely expressive purpose of commenting on the events of September 11, 2001, or whether it did so for the  commercial purpose of promoting the [Judge Jeanine] program.” Therefore, this point would have to be debated in court.

Courts distinguish expressive works from factual works in their analysis of the nature of a work, and that leads to a discussion on the nature and even the scope of copyright protection of photographs depicting current events. Defendants claimed that the copyright in the photograph taken by Thomas Franklin had to be limited “to Franklin’s decisions in taking the photograph” and that “Plaintiff cannot claim ownership in the firefighters’ actions, the expressions on their faces, their ashen uniforms, or the American flag.” Plaintiff instead claimed that the work “involved many creative decisions,” such as the lens chosen and the orientation of the photograph.
How do I love the th(r)ee (+ 1) factors? Let me count the ways.

Judge Ramos found that the second factor favored a finding of fair use, noting that Franklin “did not create the scene or stage his subjects.” Judge Ramos cited the Southern District of Florida Katz v. Chevaldina case, where the plaintiff had registered the copyright in a photograph representing him in an unflattering way and then filed a copyright infringement suit against a blogger who had used it to illustrate blog posts criticizing the plaintiff. The Southern District of Florida had found “no evidence that the photographer influenced, at all, the Plaintiff’s activity, pose, expression or clothing” and that, therefore, the second fair use factor weighted in favor of defendant.

The Katz v. Chevaldina case in on appeal in the Eleventh Circuit, and our case is likely to go to trial. Therefore, the issue of copyright protection afforded by works of photojournalists may be further debated this year in US courts.

Third Fair Use Factor: Amount and Substantiality of the Portion Used

Judge Ramos quoted the recent Second Circuit Authors Guild v. Hathi Trust case, where the court quoted the Supreme Court in Campbell:  “[t]he crux of the inquiry is whether ‘no more was taken than necessary.’ Judge Ramous concluded that this factor was neutral, as it was not clear whether Defendants could have used less of the protected work and still make sure that the public would recognize the iconic 9/11 photograph.

Fourth Fair Use Factor: Effect on the Market

Judge Ramos quoted the Second Circuit Cariou case, where the court noted that what matters when assessing this factor is “not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work” (emphasis in original). For the Second Circuit, a defendant in a copyright infringement cases has usurped the market if her target audience and the nature of the infringing content are the same as the original work. Courts must also consider whether the use is transformative.  

This illustrates that the four factors are not compartmentalized: whether a use is transformative (first factor) may determine the nature of the work (second factor), which may in turn determine the effect on the market (fourth factor). In our case, Judge Ramos weighted against a finding of fair use, as Fox News did not substantially transform the original work, and also because Plaintiff still derives significant licensing revenue from the protected work.

Judge Ramos denied Defendants’ motion for summary judgment. The issue of fair use will have to be decided in court, unless the parties decide to settle. 

Image of truck courtesy of Flickr user (vincent desjardins) under a CC BY 2.0 license.

Image of Four courtesy of Flickr use George Redgrave under a CC BY-ND 2.0 license

Friday, 20 February 2015

Australians consult on "VCAP" system

The Australian Rights Holders and ISPs announced today that they are consulting on a draft Code to combat online Copyright Infringement, along similar lines to the UK's Creative Content UK project (fka VCAP or the Coluntary Copyright Alert Programme).

As set out in their press release here:

The draft Code, published by Communications Alliance for public comment, is the product of an intensive development process by Internet Service Providers (ISPs) and a broad alliance of Rights Holders from the music, film, television and performing arts industries.

The draft Code is scheduled to be submitted in final form to the Australian Communications and Media Authority (ACMA) in April this year for registration – in line with the timeline requested by the Federal Government in December 2014.

The Code creates a Copyright Notice Scheme through which residential fixed internet users who are alleged to have infringed copyright online will receive an escalating series of infringement notices designed to change their behaviour and steer them toward lawful sources of content. [Sounds very similar to the UK system announced last July]

The Scheme has a strong emphasis on public education and does not contain explicit sanctions against internet users, but does provide for a ‘facilitated preliminary discovery’ process through which ISPs can [in the sense of "may" or "are required to"?] assist Rights Holders who may decide to take legal action against persistent infringers. [it has not been suggested that this type of process will form part of the UK proposals]

The Scheme contains strong safeguards against any threat to the privacy of internet users and allows an account holder who receives three infringement notices in a 12 month period to have the validity of the allegations independently reviewed. Several key issues are still under discussion between Rights Holders, including elements of the funding arrangements for the Scheme and the volume of notices anticipated to be sent during the Scheme’s initial 18 months of operation.

Communication Alliance CEO, John Stanton, praised the cooperative spirit and energy shown by Rights Holders and ISPs to reach agreement on the draft.

“These issues are complex and while both industries want to eradicate online copyright infringement, it has proved very difficult in the past for Rights Holders and ISPs to agree on the shape of a notice scheme.”

“Much work remains, but publication of a draft Code is an important milestone toward greater protection for the legitimate rights of the creative industries,” he said.

Rights Holders involved in the Code development include APRA AMCOS, ARIA, Australia Screen Association, Copyright Agency, Foxtel, Free TV Australia, Music Rights Australia, News Corporation Australia, Village Roadshow Limited and World Media.

Chris Woodforde, the representative of many of the Right’s [sic] Holders during the negotiations said “The creative industries believe that the implementation of an effective code is an important step in protecting creative content in the online environment. The release of the draft code for public comment is important in achieving that goal. The creative industry representatives will continue to work with the Government, ISPs and other stakeholders to implement the code and address the serious issue of online copyright infringement.”

A Copyright Information Panel (CIP) will be created to oversee the Scheme and to coordinate the public education program, including via a dedicated website. [but unlike in the UK, there is no mention of government money to achieve this]

Consumer representative body ACCAN and the Internet Society of Australia are among the stakeholders involved in the Code development process.

Members of the public and other stakeholders are encouraged to comment on the draft Code by submitting comments here
http://www.commsalliance.com.au/Documents/public-comment. The deadline for public comment is 23 March 2015. Public comments will be taken into account before the Code is finalised and submitted to the ACMA.

The effectiveness of the Code will be independently evaluated 18 months after its commencement.

Thursday, 19 February 2015

IPO Copyright Notices, like Number 3 buses...

Very exciting news that the IPO has published another in its series of copyright notices here.

It is in fact an updated version of an earlier notice issued in January (which we may have missed on this blog) entitled "Performance of Live Music" and comes hot on the heels of the notice about knitting and sewing patterns.

As the IPO explains "This notice provides advice for people who may wish to perform music live. This notice is not meant as a substitute for legal advice on particular cases, but it can help readers understand some of the issues involved. It is not a conclusive view of the law - only a decision of the court can provide that." 

Like most copyright practitioners, I am all for providing more accessible information to the public about copyright, but looking at this notice, I wonder whether it is right to do so at the expense of accuracy.

Take, for example, the following extract from the notice.

The responsibility for holding licences to allow the public performance of live music falls to venues where the performances take place, for example a pub, club or village hall. 

I always understood that the primary restricted acts in copyright law were (in this case) performing or playing music in public or authorising others to do so, so that one might say that the primary responsibility for holding licences falls to the performers.  It is undoubtedly true that venues are potentially liable for secondary infringement, but that requires at least a degree of knowledge (there is a defence for a venue owner who believes on reasonable ground that the performance would not infringe copyright) and only applies to places of public entertainment.  

What the IPO seems to have done is to conflate the law with practice - the sentence quoted above is immediately followed by:

Provided that the venue that you are performing in has an up to date public performance licence from PRS then in almost all cases no further action is necessary in order to perform the music and lyrics from a published copyright work. 

which is undoubtedly true and reflects the practical reality of how public performance of live music is licensed:

What do readers think?  Are they willing to excuse the misleading statement of law on the basis that it accurately reflects the reality of licensing practice?

CLA-DACS payback dispute: a reader asks ...

The following passage, posted in mid-December on the Association of Illustrators (AOI) website (here), has been drawn to this blogger's attention by one of our readers:
"Payback royalties derive from licences that are negotiated by the Copyright Licensing Agency (CLA), and DACS shares these royalties with other parties such as publishers - which amount to over £4 million per year for Payback claimants.

Payments are made as part of a long-standing agreement between DACS and the CLA, but CLA have told DACS that they believe that they are no longer bound by this agreement. DACS has insisted that the existing agreement must continue until its scheduled end date of September 2017, to help manage the transition to any new arrangements and protect claimants incomes in the interim. So far the CLA has not accepted this. This dispute has the potential to affect Payback in 2015 and beyond".
Our reader wants to know if anything has happened since. If anyone knows, can they assist by posting a comment below.

Wednesday, 18 February 2015

Jean Nouvel Sues the French Music Complex He Designed, Claiming Breach of His Moral Rights

French newspaper Le Monde reported last week that architect Jean Nouvel is suing the Philarmonie de Paris, claiming that its premature inauguration of a building he designed is a breach of his moral rights. 

Jean Nouvel won in 2007 an international competition launched to design the Philarmonie de Paris building, financed 100% by public money, the French government and the city of Paris. It is a cultural complex dedicated to music located in the Parc de la Villette area of Paris, featuring a concert hall and exhibitions spaces. The Orchestre de Paris is its resident orchestra and it will also host other orchestras, dance companies, and exhibitions.

The building was inaugurated last January 14. The same day, Jean Nouvel published an editorial in Le Monde, where he explained that he did not attend the inauguration because he believes that the building has been opened to the public too soon, without fine tuning its acoustics. The architect also claimed that the project managers cut corners to save money during its completion, and the result is that “[t]he architecture is martyred, the details sabotaged, so taxpayers will have to pay, once again, to correct these aberrational decisions.” Mr .Nouvel claimed that the inauguration of the building was “premature” and claimed a breach of his moral rights. 

He then filed suit against the Philarmonie de Paris in the Tribunal de Grande Instance de Paris (TGI).  Both parties presented their arguments on February 13. According to the Le Monde article, Mr. Nouvel is not asking for damages, but is asking the TGI to order the Philarmonie de Paris to make adjustments to twenty-six areas which are not, according to him,  in compliance with his original design, among them the foyer, the parapets, and reflectors in the concert hall. As long as these modifications are not made, he is asking the Philarmonie de Paris not to use his name and his image in connection with the project. 

Droit Moral of Architects
Building and Judging Both Requires Balancing Skills

I did not find the complaint, and thus I cannot discuss the arguments of both parties. However, while architects are indeed considered authors under French intellectual property law, their droit moral is not without limits, due to the utilitarian nature of their creations. Therefore additional considerations, such as public safety, may trump the architect’s moral rights. For instance, the French Supreme Civil Court, the Cour de cassation, held on January 7, 1992, that “the practical use of a building commissioned to an architect prevents him to try to impose an absolute inviolability on his work, to which its owner has the right to make changes when it becomes necessary to adapt it to new needs. Nevertheless, it is for the judicial authority to assess whether these alterations to the architectural work are legitimized, given their nature and their importance, under the circumstances which forced the owner to undertake them.” 

The Cour de cassation provided in 2009 a balancing test to be used by judges in these cases. They must “determine whether by their nature and importance, the changes made did or did not exceed what was strictly necessary and were or were not disproportionate to the aim pursued by the owner.”

Judgment is expected in the spring, and we’ll report on it then.

Image is courtesy of Flickr user U.S. Geological Survey under a CC BY 2.0 license

The CopyKat - A spliffing new case for Mr Prince!

Photographer Donald Graham has sent cease-and-desist letters to the 'appropriation' artist Richard Prince and the Gagosian Gallery, requesting that they stop displaying or disseminating any artworks or other materials that include Mr. Graham’s images. 1709 readers will remember Mr Prince from the 2013 U.S. case of Cariou v Prince where Mr Prince largely succeeded with his fair use defence after 'transforming' Mr Cariou's photographs of Rastafarians in Jamaica. The new complaint, which was first reported by the website Hyperallergic, stems from a work shown last Autumn at Gagosian in the exhibit “New Portraits” (see image) which featured ink jet prints of images that Mr. Prince had taken from Instagram. The work shows Mr. Graham’s photograph “Rastafarian Smoking a Joint, Jamaica” as it appeared on the Instagram feed of a third party, with the comment “Canal Zinian da lam jam” added by Mr. Prince as a caption. Yes, he added a caption to an Instagram grab. In Prince's earlier case, the US Court of Appeals for the 2nd Circuit broadly supported Mr Prince's transformations, saying "Here, our observation of Prince's artworks themselves convinces us of the transformative nature of all but five, which we discuss separately below. These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs. Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince's crude and jarring works, on the other hand, are hectic and provocative." Could the same apply on these facts? The CopyKat thinks not - but it's all good publicity! More on Artsbeat here

PPL, the UK collection society which licenses use of recorded music on behalf of performers and record companies, brought 230 High Court cases against operators of leisure establishments for alleged copyright infringements in 2014, an increase of 10% on last year, according to analysis by the City law firm RPC. As this Blog has previously noted, The Football Association Premier League also increased the number of High Court cases it launched in 2014. It brought 36 cases, compared with five in 2013, as FAPL and Sky focussed pubs allegedly infringing copyright by broadcasting matches without an appropriate licence. More here.

BRICS (Brazil, Russia, India, China) countries accounted for only 5% of global copyright license revenue for authors and composers in 2013, according to a report from the International Confederation of Societies of Authors & Composers (CISAC). The CISAC Global Collections Report also quotes industry data estimating the Chinese advertising market as one of the fastest growing in the world. Advertising revenue is a key reference indicator in determining collective licensing tariffs. Much of the growth in advertising revenue comes from online advertising, with the China Internet Network Information Center (CNNIC) separately reporting that China now has 649 million Internet subscribers.

Swedish songwriters have joined their UK counterparts in criticising the way in which the digital streaming pie is currently shared out, pointing out the unfair and unsustainable way in which royalties stemming from streaming services are being shared between different stakeholders - in particular the large share taken by record labels on their own behalf, and on behalf of recording artistes. Earlier this month Marty Bandier, head of Sony/ATV Music Publishing, used the Grammy's to argue that songwriters and publishers have been given an unpalatably small portion of the digital music pie, and the British Academy Of Songwriters, Composers And Authors (BASCA) launched a campaign called The Day The Music Died which stated that as the recorded music industry has shifted from CDs to downloads to streams, "songwriters and composers are now finding their livelihoods under dire threat". This view is now echoed by 133 Swedish writers who say the returns from the likes of Spotify and Deezer mean ""very few songwriters will be able to afford to create music other than as a hobby". CMU Daily estimated that in a typical business model, 30% of the income from subscription and advertising revenues are taken by the streaming service to cover non royalty costs, overheads and its own profit, record labels take 55-60% of gross revenues, leaving at the most 10-15% for songwriters and publishers - if that - with one report backed by CISAC saying the songwriting share can be as little as 3% and recommending upping the revenues shared by rights holders to 80% and rebalancing the shares taken for recorded music and the songs to an equal footing. More on the Guardian Blog by songwriter Helienne Lindvall and on potential US reforms here.

So what to do? Well here's a solution (maybe .......): Qtrax, which at one time looked like being a leader in the digital music market only to see its much lauded bubble, launched at the MIDEM conference in 2008, well and truly burst as the major labels refused to deal, is back!  Qtrax is an advert-supported music player that "for the first time allows the users to download, stream and create a personalised radio channel all from one place" - and, crucially, all for free - that is relaunching at the end of the quarter with the twin aims of cracking down on music piracy and - yes, here's the twist - ensuring artists get paid for their work.  The all new Qtrax will launch the Artist Manifesto and 30% of equity in the company will be set aside for an 'Artists Trust', while  an additional 10% of royalties will be paid directly to artists and songwriters whose content is available on the service with Qtrax boss Allan Klepfisz telling The Telegraph: "There is something very wrong with the current model. The current economic structure is not likely to ever compensate the artist... But it's not that difficult for a paradigm shift to occur. Traditionally the record companies get equity in digital services, but no one has asked on behalf of the artists. This could become a de facto way of doing business".