Plaintiff's suit re copyright infringement re novel and play with somewhat widely differing treatments of fictional trial of Judas, dismissed at summary judgment. Fees to be awarded to defendant as suit was held to be objectively unreasonable.
Background of Joltid's copyright suit against Skype here; link to text of decision here.
Plaintiff takes video footage of Madoff on a yacht in 2003. Lets Fox News show it for a bit for $10,000. Fox exceeds the license period, plaintiff complaints, Fox pays another $50k, exceeds license period again, plaintiff sues.
IDEA v PETA (SDNY August 298 2009): Plaintiff, no doubt aware that statutory damages are only available for post-registration copyright infringements that are not part of a continuing, ongoing series of infringing acts of the same kind as those engaged by defendant prior to the effective date of registration, alleged in its amended complaint that:
Upon information and belief, PETA has commenced new infringements, and prepared and exploited new and materially different Infringing Materials since the effective date of registration of copyright in the Work, which acts are not part of a continuing, ongoing series of infringing acts of the same kind as those engaged in by PETA prior to the effective date of registration of the copyright in the Work, but instead are separate infringements postdating the effective date of registration of the copyright in the Work.
There were no factual allegations to support this conclusory assertion, and thus dismissed plaintiff's claim for statutory damages and fees. Note that had plaintiff come up with some factual allegations pre-motion, it may have been granted leave to amend, but didn't, so wasn't.
Ownership of a copyright registration (or of a refused appllication) is necessary to bring a copyright suit. In the Second Circuit at least, it is clear that ownership of a mere pending application is insufficient.
I don't know all the facts in the decision dismissing the complaint embeed below, so I'll just say that I don't get the behavior of the parties here. It seems to me that if the words "Expedited Handling of Copyright Registration" came up at the pre-motion conference, then this motion would not have had to be heard, and there wouldn't have to be a re-filing of this copyright complaint.
Normal processing of a copyright application may take 8 months or so. You may request expedited handling of an application for copyright registration, even for an application that has already been filed. Pending litigation is an acceptable reason for granting such a request. Expedited handling may take only a week (same day registrations for 'walk-ins').
SDNY decision limiting injunction to registered versions of a software program (as opposed to extending it to unregistered 'derivative' versions.
Practice pointer: file for copyright registrations of new versions of a work early and often.
WSJ: In a Mermaid Statue, Danes Find Something Rotten in State of Michigan
GREENVILLE, Mich. -- This town's statue of Hans Christian Andersen's "Little Mermaid" is a symbol of its proud Danish heritage. Now some are saying she doesn't have permission to be in the country.Nobody disputes the sculpture -- installed in 1994 as part of Greenville's annual Danish Festival -- was inspired by the famous one in Copenhagen.
. . . The problem is that this ode to the old country allegedly infringes the copyright of Danish artist Edvard Eriksen. In May, just as preparations for this year's Danish-themed festivities were getting under way, the town got a letter from the Artists Rights Society -- a New York-based organization that enforces copyrights on behalf of artists, including Andy Warhol and Picasso. The letter said that the statue is an "unauthorized reproduction" and had to come down. If not, the town would have to pay a licensing fee.
Michigan Little Mermaid statuehere.
Wikipedia on Little Mermaid.
Plaintiffs may not receive fees and costs relating to enforcing defendant's compliance with preliminary injunction order - proper award was profits, even though defendant obtained no profits from its contempt.
Award of statutory damages in default copyright infringement case relating to karaoke machines.
Puzzlemaster sues Apple over allegedly infringing puzzle game on iPhone. Background here.
Magellan Media Partners: "The Impact of Piracy":
Both pirated and un-pirated titles showed similar growth in sales in the first few weeks after a title is published, followed by a decline after peak. Average sales for unpirated content start higher and peak later, although this may reflect the specific nature of titles in a small sample.The primary difference between sales of pirated and unpirated content appeared in weeks 19 through 25, when sales for pirated content peaked a second time at a level higher than that seen in the first, sell-in period. This second peak followed the time (19 weeks) at which the average pirated O’Reilly front-list title was first seeded on a P2P site.
We stress that this is correlation, not causality, but the difference in the sales profile is notable and persists even when using rolling averages.
WSJ: "To Beat Antitrust Rap, Papers Take Cues From Songwriters":
Ailing news organizations seeking to make money from both online readers and the Web sites that republish their stories are looking at the way music publishers collect a fraction of a cent for every song played in public, from the corner bowling alley to the stage of "American Idol."That model, a major topic of discussion at a private meeting of newspaper executives last week, raises an important question: Can newspapers band together to demand payment from Web sites that use their content?
NY Times: "Payoff Over a Web Singing Sensation Is Elusive":
FremantleMedia Enterprises, a production company that owns the international digital rights to the talent show, hastily uploaded video clips to YouTube in the wake of Ms. Boyle’s debut, but the clips do not appear to be generating any advertising revenue for the company. The most popular videos of Ms. Boyle were not the official versions but rather copies of the TV show posted by individual users.The case reflects the inability of big media companies to maximize profit from supersize Internet audiences that seem to come from nowhere. In essence, the complexities of TV production are curbing the Web possibilities. “Britain’s Got Talent” is produced jointly by three companies and distributed in Britain by a fourth, ITV, making it difficult to ascertain which of the companies can claim a video as its own.
WaPo: © 2009? Wishful Thinking, Perhaps, as Backlog Mounts:
The problem has tripled the processing time for a copyright from six to 18 months, and delays are expected to get worse in coming months. The library's inspector general has warned that the backlog threatens the integrity of the U.S. copyright system.The irony is that the slowdown stems from a new $52 million electronic process that is supposed to speed the way writers and others register their literary, musical or visual work.
UPDATE: 43(B)log comments on the article.
Here is a post from December 30, 2006 entitled Emily the Rip-Off.:
Emily the Strange is fictional character whose introverted and disdainful personality has made her something of a countercultural icon (and a great way to sell marketable products to the trendy). Her franchise has churned out a lot of merchandise (clothes, toys, books, etc.)But the character itself is almost an exact copy of another (less desperately nonconformist) character, Rosamond, from the children’s book series “Nate the Great”.
Here, a writer at "You Thought We Wouldn't Notice" recognizes the similarity.
Here, the Laughing Squid summarizes reader comments on the similarities and quotes from the creator of Rosamond.
Here is the tex of the declaratory judgement action brought by the creator of Emily.
NY Times: "Print Books Are Targets of Pirates on the Web":
For a while now, determined readers have been able to sniff out errant digital copies of titles as varied as the “Harry Potter” series and best sellers by Stephen King and John Grisham. But some publishers say the problem has ballooned in recent months as an expanding appetite for e-books has spawned a bumper crop of pirated editions on Web sites like Scribd and Wattpad, and on file-sharing services like RapidShare and MediaFire.
Wired: "Obama Taps 5th RIAA Lawyer to Justice Dept.":
Monday's naming of Ian Gershengorn, to become the department's deputy assistant attorney of the Civil Division, comes more than a week after nearly two-dozen public interest groups, trade pacts and library coalitions urged the new president to quit filling his administration with lawyers plucked from the Recording Industry Association of America.
Facebook Group organizes "Protest against the removal of the text-to-speech function from e-books":
The Authors Guild is pressuring Amazon to modify the Kindle 2 so that the synthetic speech function can only be used with the express authorization of the owner of the copyright of a work. A coalition of organizations that represent or work with persons with reading disabilities is organizing a protest to persuade the Guild to change its position.
The Register: "Pirate Bay Linking Could Implicate Facebook, Says Lawyer":
The Pirate Bay has unveiled a feature that makes it easy for web users to post links to pirated material on their Facebook page. The activity risks passing liability for copyright infringement onto Facebook, a technology lawyer warned.
TechCrunch: "Harry Potter Author JK Rowling Attacks Scribd For Pirated Content"
Scribd says that the is no battle going on between Rowling and the site, and that the Times piece is “inaccurate and misleading”, going on to say that Scribd is not being threatened with legal action.
TechCrunch: "The Sorry State of Music Startups"
On demand streaming rates range from .4 cents to 1 cent per stream - this is what the startups pay to the labels every time they play a song for a user.
. . .
MySpace Music, the biggest player in this space, may be spending $2 million or more per week to the music labels based on their own statistics that they’re streaming over a billion songs a week.
Interesting SlashDot discussion on "How do you deal with pirated programs at work?"
TorrentFreak: How To Kill The Music Industry:
According to Per Sundin, CEO of Universal Music, the decline in music revenues in the past 8 years can be fully attributed to (read: blamed on) illegal file sharing. If this were actually true, many of us might even respect his decision to go after pirates as fiercely as the music industry is doing right now. However, the past 8 years have seen a lot more changes in the landscape of home entertainment than Per Sundin would like to admit, and some of those changes have had a massive impact on music profitability — much more so than any amount of piracy.
Manufacturer of cheerleader uniforms sues competitor on copyright and trademark.
I've written previously on the stages of "ToS Outrage" syndrome. Now we'll see how my theory plays out with Facebook, which is reportedly making overbroad claims to user-generated conteny. Even if my theory holds, that's not to say they're not thieving bastids. Taking a quick look at the ToS, I note that FB is granted a license, not an assignment. However as far as I can tell, FB would seem to be able to make derivative works and sell them. Hmmm.
WSJ: New Kindle Audio Feature Causes a Stir
Kindle 2 is smaller than the first version of the product.The new device also features a five-way navigation element, faster wireless service for downloading books and the ability to wirelessly sync between Kindles and cellphones.Some publishers and agents expressed concern over a new, experimental feature that reads text aloud with a computer-generated voice.
"They don't have the right to read a book out loud," said Paul Aiken, executive director of the Authors Guild. "That's an audio right, which is derivative under copyright law."
1st user: [To 2nd user] if you have an ftp somewhere my buddy just laid 981 MB of sweet My Morning Jacket on me - including some Bonnarro awesomeness.
2nd user: very tempting but I like em so much I'm going to pay em!
One of my kids is studying Edgar Allan Poe. This is from the Wikipedia entry on Edgar Allan Poe:
After his brother's death, Poe began more earnest attempts to start his career as a writer. He chose a difficult time in American publishing to do so. He was the first well-known American to try to live by writing alone and was hampered by the lack of an international copyright law. Publishers often pirated copies of British works rather than paying for new work by Americans. The industry was also particularly hurt by the Panic of 1837. Despite a booming growth in American periodicals around this time period, fueled in part by new technology, many did not last beyond a few issues and publishers often refused to pay their writers or paid them much later than they promised. Poe, throughout his attempts at pursuing a successful literary career, would be forced to constantly make humiliating pleas for money and other assistance for the rest of his life.
Shareholders of venture to exploit Stan Lee's rights in famous Marvel characters sue Stan Lee and Marvel over profits. Background here.
FT accuses of Blackstone Group of passing around the password to an online subscription (the cookies gave Blackstone away).
Another password sharing suit in the District of Maryland discussed here. The same party, Costar, has been successful in password sharing cases previously.
Complaint Financial Times Black Stone
Ars Technica: Copyright Cop Wedding Crashers Fined By Spanish Court:
The next time you have a wedding, make sure your videographer isn't a secret spy for the RIAA or similar copyright group. This real-life scenario happened to a couple in Spain thanks to the efforts of the Spanish General Society of Authors and Editors (SGAE), a rights group for musicians and artists. But although the group managed to bust the reception venue for copyright violations, SGAE itself has been fined for violating the privacy of the newlyweds.
IPKat: "Are Performers A Special Case?":
While almost every serious commentator in the field of contemporary copyright law takes the view that no case has been established for the extension of copyright term in respect of sound recordings, the case for the extension of the protection term enjoyed by performers themselves has at least one doughty advocate.
With comments by Prof Patry and Slothrop (possibly Tyrone Slothrop, protagonist of Pynchon's Gravity's Rainbow).
Digital up, physical down. The top 10 concert tours featured, primarily, old-timers. Via The Big Picture. Music sale statistics have political implications so use with caution.
Yeah, right, any way, the movie 'What Women Want' depicted a pinball machine in the background of a scene. The owner of rights in the pinball machine sued the producer, Paramount, for copyright and trademark. The court said "de minimus non curat lex." Coverage here, decision here.
From the decision:
The scene in question lasts only three-and-a-half minutes, and the [pinball machine] appears in the scene sporadically, for no more than a few seconds at a time. More importantly, the pinball machine is always in the background; it is never seen in the foreground. It never appears by itself or in a close-up. It is never mentioned and plays no role in the plot. It is almost aways partially obscured (by Gibson and pieces of furniture), and is fully visible for only a few seconds during the entire scene. The Designs (on the backglass and playfield of the pinball machine) are never fully visible and are either out of focus or obscured. Indeed, an average observer would not recognize the Designs as anything other than generic designs in a pinball machine.
Background reading: Ringgold v Black Entertainment Television, 126 F.3d 70 (2d Cir 1997). Also: Lebbeus Woods v Universal City Studios, et al, 920 F. Supp 62 (SDNY 1996).
NY Times: Online Piracy Menaces Pro Sports:
In combating piracy, one method of enforcement is off limits, executives say. They will not, like the music industry did, sue individual fans who are uploading games to peer-to-peer platforms.“I’d like to think we’ve learned some cautionary lessons from the music industry,” said Mr. Mellis of M.L.B. “What is the utility in suing individuals who are part of a larger chain of events?”
So a steady flow of cease-and-desist letters flow out of the offices of each league’s law firms. Moral suasion is used on foreign governments — M.L.B., for example, has been in discussions with the Chinese government about shutting sites there. Sometimes it works: Sopcast, a service that was begun as a project at Fudan University in Shanghai, now blocks M.L.B. games. (Virtually every other sport’s games can still be seen over the service).
Local Massachusetts paper sues Globe/Ny Times over copyright and trademark infringement. Coverage here.
WSJ.com: "Recording Industry to End Litigation Strategy; Thanks, Judge Davis?"
Major news for online music geeks: The recording industry plans to lay down its litigation offensive against music pirates in favor of a more PR-friendly, if not more effective, strategy. Instead of suing thousands of people for stealing tunes via the Internet, it will rely on the cooperation of Internet-service providers
ArsTechnica: "We Just Link To Videos! won't stave off MPAA Lawyers":
But the key question is whether sites like Campusist are engaged in that piracy, or whether the fact that they simply link to other sites grants them immunity. This latter argument is the one routinely advanced by The Pirate Bay and other torrent trackers. But, when every link on a site leads to an infringing copy of a film, does the "Hey, I'm just linking to some stuff!" argument still carry weight?The MPAA doesn't think so, and yesterday it filed suits against three websites: Campusist, Movies-on-demand.tv, and Sswarez.com. The move is part of MPAA's continuing legal campaign to target distribution sites, and the film business has yet to engage in the sort of widespread suing of individuals that has characterized the music industry's approach.
Owners of rights in PERFECT BRIDE Turkish reality show re mothers arranging marriages for their sons sue Ryan Seacrest's company re MOMMA'S BOYS show.
Computer Weekly: "Google Could Be heading For Copyright Spat Over Digital Magazine Move" HT CopyrightLaw on Twitter.
Information Week: "Free Software Group Sues Cisco For Open Source Violations"
Usefularts.us: "Can Schools Copyright Their Students Creations?"
Cnet.com: "Reselling MP#s: The Music Industry's New Battleground?":
A new digital music service is getting lots of attention for proposing to help consumers sell their used MP3s in much the same way people once unloaded second-hand albums.Bopaboo has generated splashy headlines recently for coming up with what on the surface seems like a good idea. Music fans have always exercised their first-sale rights, which under copyright law, allows them to sell their unwanted CDs, tapes, and albums without permission from the copyright owner. Why can't they do the same with digital music?"
CNET.COM: "Google Brings Old Magazines Back To Life"
WSJ.Com: "Of Copyright & Family Feuds: "Hedge Fund Wives" Goes to Court":
Tatiana alleges that Natasha surreptitiously copied portions of the book during trips to Tatiana’s New York home. Tatiana also claims that Natasha filed for a joint copyright by allegedly providing the Copyright Office with a version of the book that she’d downloaded from Tatiana’s computer. Then, earlier this month, Natasha allegedly referred to “Hedge Fund Wives” as “our book.” After that she began sending letters to HarperCollins people allegedly threatening to publish the book on the Web if they didn’t respond.
Flight 404: . . . in which an artist sees in a boutique a t-shirt reminiscent of their own work and it turns out to be a pixel for pixel match.
WSJ.com: Right to Copy DVDs to PCs at Center of Copyright Spat
Those of you who had 'three weeks' in the 'how long would it to take for Real Networks' to get sued after unveiling its DVD copying software' betting pool, have won. Your prize, a DVD of 'Speed Racer' copied using the RealDVD software program, has been seized.
I've seen Read Window about a million times. It's my second favorite Hitchcock after 'North By Northwest." When I saw the trailer for Disturbia, I thought "oh, updated Rear Window.' But that's not the test for copyright infringement.
In Rear WIndow, photographer Jimmy Stewart is housebound due to a broken leg. He's bored so he looks out his rear window at the windows of the apartment house across the yard. He witnesses a murder in one apartment, and, with the help of his girlfriend and (female) physical therapist, he attempts to 'solve' the case. In Disturbia, a teenager livng in suburbia, is housebound because he's under house arrest (wearing a leg bracelet). The first twenty minutes seem to have been written and directed by a copyright lawyer, setting up why the kid is under house arrest. He sees what may be a murder across the street, and attempts to 'solve' the case with the help of his mother, his female next door neighbor (who is not his girlfriend) and male best friend.
There's no question in my mind that the screenwriter of Disturbia saw Rear Window, and there's no question in my mind that copyright lawyers reviewed the script.
The copyright owner of Rear Window has now sued the producers of Disturbia. The complaint does not seem to be on Justia at this time.
WaPo: "Could Net Radio's Extinction Be Close?":
Faced with huge song royalty increases, Net radio may soon face extinction. That is according to Internet radio Webcaster Pandora's founder Tim Westergren. He told the Washington Post his popular music Webcasting site is about to go offline because of increases in royalties his company must pay to the music industry. Westergren says that the Copyright Royalty Board's agreement with SoundExchange, the royalties collecting arm of the Recording Industry Association of America (RIAA), is about to increase fees Pandora pays and thereby turn its small profits into a deficit.
Paul Simon sues vendor of clock that plays 'Bridge Over Troubled Waters"
Knowledge@wharton: "War of the Words: Scrabulous is off Facebook, but did hasbro Win the Game?
:
On the corporate side, the issue is less about money than copyright infringement and brand control. Wharton faculty note, however, that Hasbro may be doing more harm than good to its brand by going after Scrabulous. It not only risks alienating existing Scrabulous users, they say, but also misses the opportunity to capitalize on Scrabulous's success in the difficult-to-harness social networking world.Peter Fader, co-director of the Wharton Interactive Media Initiative, believes Hasbro's action is an "incredibly bad business decision." There is no evidence the Agarwalla brothers were doing "something absolutely disparaging" to the Scrabble brand, he says. In fact, Scrabulous "has been such a fabulously good thing for the Scrabble franchise [that] Hasbro should have been celebrating."
Lucasfilm Ltd v Ainsworth [2008] EWHC 1878 (ch) (31 July 2008):
This is a case about the reproduction of replicas of various props used in the first Star Wars film. The Star Wars films are a series of science fiction films set at some different time and in another part of the Universe, and which feature the struggle between good and evil. They contain a heavy militaristic element, and that in turn requires uniforms. This case concerns the production of uniforms for the first of the films in the series, which is known as "Star Wars IV – A New Hope" and which was first shown in 1977. It bears the number IV, even though it was the first in the series to be produced, so as to leave room for expansion backwards in time, as it were, or "prequels". I shall simply call it "Star Wars", or "the film". The second claimant was the English production company for the film; all the claimant companies are, taken together, the producing or licensing companies, and it is accepted that between them they have the necessary rights (if anyone has) to bring the claims made in this action.
43(B)log: "Copyright and California's Anti-SLAPP Law":
Duncan sued defendants, including the Sierra Club, based on Thomas Cohen and Kristi Cohen’s attempts to make a film of Duncan’s book The River Why. He alleged copyright infringement and various state-law claims.The court first rejected the argument that California’s anti-SLAPP statute applied to federal claims. It then reached the same conclusion as to the state law claims. The threshold question is whether the state-law claims arise out of protected activity—the exercise of free speech.
Facebook has sued in California a German company, StudiVZ, for copyright infringement. lIllustration and background from Kasi-Blog here. TechCrunch coverage here. I'll post the complaint when it's in hand.
Update: The case is Facebook, Inc. v Studivz, Ltd., Verlagsgruppe George von Holtzbrinck, Holtzbrinck Networks, Holtzbrinck Ventures, filed July 17 2008, 28:1332. The case is designated for ECF so I assume the complaint will be available on Pacer (attn: Northern District of California practitioners - is that correct?)
Institute for the Development of Earth Awareness sues People for the Ethical Treatment of Animals alleging unauthorized copying of 'The Dreaded Comparison,' book concerning treatment of anmals.
WSJ.com: "As Textbooks Go 'Custom.' Students Pay:
The spiral-bound book is nearly identical to the same "A Writer's Reference" that goes for $30 in the used-book market and costs about $54 new. The only difference in the Alabama version: a 32-page section describing the school's writing program -- which is available for free on the university's Web site. This version also has the University of Alabama's name printed across the top of the front cover, and a notice on the back that reads: "This book may not be bought or sold used."
Discuss.
UPDATE: Click on 'comment' to view the thread. This would appear to be one of the more hot-button posts since I instituted comments. I guess the question narrows to: Under what circumstances can a copyright owner distribute a copyrighted work and impose restrictions upon the recipient such that first-sale doctrine would not apply. One example would be distribution of a work pursuant to a NDA.
Plaintiff Meshworks was hired to make computerized, animated 3D models of several Toyota cars for an ad campaign. Faithfulness to what a 'real' car would look like was a 'point' of the model (which was used on web swites so that customers could manipulate the images (e.g. change color)). A dispute broke out, plaintiff sued for infringement, defendants claimed the models weren't protectible, District Court held that models were insufficiently original for copyright protection, 10th circuit affirmed.
Prof Patry criticism of District Court decision here. I certainly hope he'll weigh in on the circuit court decision.
I've read the decision once. My initial take is this:
The court is conflating fidelity with originality. In my view, if there was creativity and originality in achieving the fidelity, then to the extent those creative and original efforts are expressed, that expression should be copyrightable. The expression is embodied in the final work.
Read the opinion, think it over, please comment.
UPDATE: Prof Patry weighs in. I think that what I said above re fidelity was influenced heavily (ok, stolen) from what Bill said two years ago about this case. While he is more sympathetic to the holding, I do agree with his final paragraph:
I am still bothered by the premise that efforts to realistically depict an actual object are unoriginal. Superrealist oil paintings are an obvious example. I have a few posters of them, and if you don’t look closely you think it was a photograph. Photographs are of course protectible, usually, due to the lighting, shading, angle and other choices. But in Meshwerks those choices were made by G&W, and this is what seemed to persuade the court of appeals Meshwerk’s contributions were unoriginal.
Wired: "Judge Says You Can Sell Your CDs":
A federal judge is trashing UMG Recordings' claim that it retains perpetual ownership of promotional CDs it sends out before an album's release . The case was brought by the recording label against a California man who was auctioning off the promo discs on eBay. The music concern claimed Troy Augusto was violating its copyright because the discs were labeled with messages that they could not be resold.
Dave Winer: "Who Owns Your Comments?":
When you place a comment on my blog, you're adding something to the record here, but you're also adding to the library of your written work.So the question is: "Who owns the comment?"
'Creep' by Radiohead is a great song. Eliza Lumley does a good cover. I imagine Prince would too. He performed the song at a concert, someone videotaped his performance, and then posted it on YouTube. Prince sent a DMCA letter and got the video taken down. Thom Yorke of Radiohead found out and allegedly asked Prince to restore the video, indicating that Radiohead was the copyright owner and he had wanted to see Prince's version.
The video could, in theory, infringe various rights. It could have been a breach of contract if the venue prohibited filming; it might violate Prince's right of publicity or trademark. Prince didn't own the copyright in the composition so that's out. If Prince had recorded the performance, the video wouldn't be a copy of that recording. As this EFF post points out, the video may violated the anti-bootlegging statute; however it's my understanding that that is not a copyright right under DMCA. If Prince had recorded his performance that would have 'fixed' his choreography. Maybe his set is copyrighted (his guitar is a registered copyright (and trademark)). So it seems that Prince may very well have a good faith belief that he owned a copyright that was infringed by the video.
Discuss.
Counterfeit Chic: Law and the LBD: YSL in Montreal.
NY Times: "Realtors Agree to Stop Blocking Web Listings":
The Justice Department gave online real estate brokers — and potentially their clients — a lift on Tuesday by forcing a new industry policy opening access to home listings the agents were previously denied.
Cnet: "House Wants Copyright Czar, New Piracy Penalites":
By a 410-10 vote, the House approved the Prioritizing Resources and Organization for Intellectual Property, or Pro-IP, Act, which is backed by the entertainment industry and other major copyright holders. . . .The bill would rewrite U.S. law to allow federal officials to seize property--including computers or other equipment used to commit intellectual-property crimes or obtained as a result of those proceeds--from people convicted of making unauthorized copies of music, movies, or live performances. In civil cases, federal agents would have to establish that there was a "substantial connection" between the property and the offense.
Oncopyright 2008 will bring together thought leaders and change agents together to explore the evolving world of copyright. It's a unique opportunity to share insights and exchange ideas on where copyright is headed, and how it will aggect the future of written works, music and other forms of intellectual property.
Speakers include Clay Shirky, Suzanne Vega and the perspicacious Paul Fakler.
Metro UK: "Lucas in Star Wars Costume Row":
The designer who made some of the outfits used in the Star Wars films is facing a legal battle with George Lucas over who owns the copyright, it was reported.The row is over the merchandising rights for the stormtrooper uniforms, the imperial fighter pilots' headgear and the helmet designed for Luke Skywalker that he wore leading the final assault on the Death Star in the first film.
Designer Andrew Ainsworth, from Twickenham, West London, made the first helmets and suits for the original film in the 1970s and said he sold the initial 50 stormtrooper helmets to Star Wars creator Lucas for £35 each.
News.com: "Are mix tape sites on solid legal ground?":
A seemingly home-spun operation with no obvious profit motive, Muxtape allows anyone to upload a series of songs to its servers to create, and then distribute online, a digital "mix tape" along the lines of the ones you made for your unrequited paramours back in college.
Article quotes friends of the blog Fred von L. and Eric G.
Australian IT: "Websites win right to show Games clips":
INTERNET sites in Australia will be allowed to show short video clips of Olympic events for the first time during the Beijing Games, following a historic agreement announced yesterday between the Seven Network and the International Olympic Committee.
Law.com: An Operating System for Law: Online Cases:
Carl Malamud has been bothered for 25 years by the fact that U.S. case law is locked away from the public's eyes. As a wonkish graduate student at the Indiana University School of Business in the 1980s, he was forced on occasion to sneak into the law school library to look something up -- because the library was for law professors and law students only.In the years that followed Malamud has scored an extraordinary track record at getting information into the public domain. Thanks to him and other digital activists, in the mid-1990s the Securities and Exchange Commission put the financial filings of public companies online. In the late 1990s, due in part to aggressive lobbying by Malamud, the Patent and Trademark Office made the full database of granted patents and trademarks available and searchable online. Recently, as part of his effort to get the Smithsonian Institution to free up access to its collection of historical images, Malamud bought and downloaded 6,000 images and posted them on the free Web-sharing service Flickr.
PCMAG: DomainNameWire reports about a message it received from the U.S. Copyright Registry, which is apparently located in Manhattan, which advises that:
You are required to advise the US Copyright Registry of your intent to license this website if registration is administered through the UCR as this is your final notice.
Note: you may disregard this notice. If you disregard this notice or fail to reply:
UCR and the United States Patent and Trademark office will NOT be liable for infringement of your website, interruption of business activity or business losses.
I would venture that the statement that "if you fail to notify UCR, that the US PTO will not be liable for interruption of business activity," is true on its face. Having said that, the seeming if/then quality of the sentence lends a certain implication of causality that may not be warranted.
Also, check out the US Copyright Registry website, which features a picture of Reagan Administration officials James Baker, Ed Meese and Michael Deaver, no doubt obtained from a Google Image search of 'official-looking guys.'
Commentary here.
. . . and the award goes to "Ricky Gervais Inspires Copyright Opinion" (Prof Patry).
TechCrunch: "Copyright Infringement Continues To Pay: $4 million For Crunchyroll":
San Francisco based Crunchyroll, a sort of YouTube for anime and other mostly Asian video content, raised a $4 million round of financing led by Venrock Associates, with partner David Siminoff joining the board of directors.. . .
We first covered the company in August 2007, and noted that they rely almost exclusively on copyright infringing content.
TechCrunch: GumGum Launches New Image Licensing Platform:
Prof Patry: No One Likes a Bully: The IIPA and Canada:
It is entirely proper for U.S. industries to protect their own interests. IIPA’s website, though, shoots for a loftier goal, that of helping to create “a legal and enforcement regime for copyright that not only deters piracy, but that also fosters technological and cultural development in these countries, and encourages local investment and employment.” The last two clauses evoke a globally beneficent outlook, one reminiscent of the “a raising tide lifts all boats” bromide according to which very high levels of protection are actually good for other countries because it protects authors from those countries. The bromide is false, though, and not only because the IIPA doesn't do outreach to help local investment or employment in foreign countries: it is also false because the ill-effects of hyper-copyright are felt in the U.S., from orphan works, to oppressive remedies, and misuse of circumvention rights to squelch competition and preserve outmoded business models.
Eames Office licenses the IP of Charles and Roy Eames. They created the Dot Pattern in 1949 and Eames Office published it as a fabric in 1999. The Pod Hotel obtained a swatch but did not purchase the licensed fabric. It instead allegedly purchased a 'knock off'. The Eames pattern was used in promotional material for the hotel and noted in reviews of the hotel.
Eames Office has now sued on copyright and trademark grounds.
Eames Office, LLC and Mahram Fabric Corp. v. BD Hotels LLC, Swavelle/Mill Creek Fabrics, Inc. and Vanessa Guilford, 1:2008cv00988 (SD NY January 30, 2008).
ChristianPost.com: "Churches Wary of NFL Policy Sack Super Bowl Parties":
After the National Football League gave warning last year to an Indianapolis church not to hold a Super Bowl viewing party, churches across the country are canceling their annual Super Bowl fellowships in fear of getting flagged for copyright violations.North River Community Church in Pembroke, Mass., had scheduled a big gathering this Sunday with the big game on a giant video screen in the congregation's worship center. But the church's pastor, the Rev. Paul Atwater, called it off after he looked over the NFL's policies and news reports of churches that were threatened with legal action for planning similar showings last year, according to The Daily News Tribune.
UPDATE: Trademark Lawyer and former tight end for the 72 Dolphins Craig Mende writes for Forbes on THE BIG GAME. Warning: NSFW picture of Craig.
Via TechCrunch, a mention of EYEALIKE:
" . . . a proprietary, patent-pending, visual search platform that is valuable for companies who need to effectively index, filter, manage and monetize large image collections. Eyealike functionality is targeted towards companies that have rich image based content. Our visual search solutions can be white-labeled to fit specific consumer product needs allowing the end user to improve their search results through the use of image searching."
Slashdot: "Recording Music Without The Recording Industry"
The 2008 RPM Challenge — to write and record an original album in February, just because you can — is about to begin. Hundreds of musicians from around the world have already signed up. Last year, more than 850 albums were recorded as part of the challenge, a testament to what can be done by independent musicians without a label, without the RIAA, and often without a professional studio.
Via E!Online, Jay Leno and other comedy writers settle with compiler of allegely infringing joke book.
Foxworthy v. Custom Tees, Inc. (1995 case in which 'redneck' comic Jeff Foxworthy proves unique expression in jokes.
Prof Patry on the Foxworthy case and the protection of humor.
Via TheSmokingGun, text of complaint in Lapine and Sneaky Chef v. Jessica Seinfeld and Jerry Seinfeld (alleging copyright and trademark infringement, and defamation).
News.com: Washington Post Sticks By RIAA Story Despite Evidence It Goofed:
Marc Fisher, a Post columnist, wrote on Sunday that the Recording Industry Association of America (RIAA) asserted in a legal brief that anyone who copies music from a CD onto their computer is a thief.. . .
Quoting from the brief, Fisher wrote that the RIAA had argued that MP3 files created from legally bought CDs are "unauthorized copies" and violate the law. If it were true, the move would represent a major shift in strategy by the RIAA, which typically hasn't challenged an individual's right to copy CDs for personal use.
The problem with Fisher's story is that nowhere in the RIAA's brief does the group call someone a criminal for simply copying music to a computer."
The article goes on to quote Prof Patry on the Pariser quote (noted in the post below:
This new rhetoric of 'everything anyone does without (RIAA) permission is stealing' is well worth noting and well worth challenging at every occasion," Patry wrote. "It is the rhetoric of copyright as an ancient property right, permitting copyright owners to control all uses as a natural right; the converse is that everyone else is an immoral thief."
WaPo: Record Industry Goes After Personal Use:
Whether customers may copy their CDs onto their computers -- an act at the very heart of the digital revolution -- has a murky legal foundation, the RIAA argues. The industry's own Web site says that making a personal copy of a CD that you bought legitimately may not be a legal right, but it "won't usually raise concerns," as long as you don't give away the music or lend it to anyone.. . .
The Howell case was not the first time the industry has argued that making a personal copy from a legally purchased CD is illegal. At the Thomas trial in Minnesota, Sony BMG's chief of litigation, Jennifer Pariser, testified that "when an individual makes a copy of a song for himself, I suppose we can say he stole a song." Copying a song you bought is "a nice way of saying 'steals just one copy,' " she said.
Prof Patry: "The Global Garrotting of the Public Domain"
"But for U.S. content owners, the EU reciprocity provision for term extension was merely a stalking horse for the greater prize: extending the term 20 years for U.S. works., and not just any U.S. works, but pre-existing ones, whose term would go from 75 to 95 years from publication, after already having been increased from 56 years to 75 years in 1978. It is these old act works that content industries were concerned about, not new act ones governed by life plus 50: after all, who in 1998, when term extension was passed, was worried about works whose term of protection were scheduled to expire in 2073? Who knew in 1998 what works would be worth anything in 2073? No one. But people in 1998 did have a fair idea about works created 75 years before are still be valuable. So to be clear about the purpose of term extension, it has always been about the past, not the future; it has always been about keeping pre-existing works out of the public domain and not about any alleged incentive to create new ones."
I have actually met and had a lengthy conversation with someone who practices dressage. So any way, the Tennessee Walking Horse Breeders' and Exhibitors' Association has sued the National Walking Horse Association on copyright and trademark grounds. Plaintiff issues pedigree 'registry certificates' to horse owners. Defendant has assembled a pedigree database in part by soliciting horse owners to supply their regsitry certificates from plaintiff. Plaintiff claims copyright in its certificates. Ruling: Defedant can ask horse owners to supply the information in their plaintiff certificates but Defendants may not copy the certificates themselves, or ask for such certificates by name.
Tennessee Walking Horse Breeders' and Exhibitors' Association v National Walking Horse Association, 1:05-0088 (MD Tenn Dec 12, 2007).
Slashdot: "U.S. to Get New IP Czar"
We have this pillow and this sofa, in microfiber (because of the dogs) at home. Anyway, Galbraith & Paul owns the copyright in this donut design and someone, allegedly, produced lamp shades that allegedly infringe the fabric, and Ruby Tuesday has such lamps in its restaurants. It then ran photos of its restaurants with the lamps in the background in promotional materials (cropped example above).
Galbraith & Paul has now sued Ruby Tuesday in the SDNY, on copyright and trademark grounds.
Galbraith & Paul v. Ruby Tuesday, 07 cv 10512 (SDNY Nov. 29 2007)
PRACTICE POINTER: If you operate a business in some sort of public space, such as a restaurant, and you utilize a furnishing or a decoration that may contain a copyrightable element (such as a lampshade, or a wallpaper or a poster), then your use of such an item may constitute a public display of the work, and if the item is infringing, then you may have some exposure for copyright infringement. You may have a claim against the supply store that sold you the 50,000 lampshades or whatever, which you may be able to collect on if they still return phone calls. When buying items, even useful items like lamps and chairs, that will be displayed in public, you need reps and warranties and indemnification from the supplier, that will cover potential copyright and trade dress claims.
Counterfeit Chic: "The Manolo's Guide to Holiday (Photo)Shopping" commenting on the Manolo website pointing out the photos of the Christian Louboutin shoe on the left and the Steve Madden shoe on the right.
Not quite sure what the story is behind the similarities in these Apple and Sony ads. Via ""You Thought We Wouldn't Notice."
Defendant publishes Harry Potter reference work, based in part on a fan encyclopedia. Harry Potter publisher and author sue.
Text of complaint in Warner Bros Ent and JK Rowling v RDR Books, SDNY Oct 31 2007.
Text of decision referred to in complaint: Castle Rock Entertainment v Carol Publishing, 150 F.3d 132 (2d Cir 1998) (Seinfeld trivia book).
The Toronto Star: Music Takedown Strikes The Wrong Chord
Copyright expires in Canada 50 years after the author's death. European copyright expires 70 years after the author's death. Accordingly, some works might be public domain in Canada that might still be protected in Europe.
The International Music Score Library Project is a not-for-profit Canadian site hosting works that are public domain in Canada.
IMSLP received this demand letter from the Austrian publisher of composers such as Bartok and Mahler (Bartok died 62 years ago, Mahler died 96 years ago (??)). The letter threatens legal action against the coordinator of IMSLP personally, in Europe, and notes that Canada could enforce such a judgement.
So IMSLP has shuttered its site for now.
Wired.com: "I Was a Hacker for the MPAA":
The MPAA's use of Anderson is one of a series of controversies the movie industry is confronting in its zero-tolerance war on piracy. MediaDefender, a California company that tracks and disrupts file sharing of movies and music, was reported to Swedish authorities last month by The Pirate Bay, after an internet leak revealed the extent to which MediaDefender pollutes file-sharing services with fake, decoy content. And an executive at a national theater chain successfully pressed New Jersey authorities in August to prosecute a teenager for filming 20 seconds of a movie at a theater to show to her little brother later.
With regard to allegtions that copyright owners 'pollute file-sharing services with fake, decopy content', I have always been concerned to what extent an IP owner can commit what might possibly be tortious behavior towards an entity whose activites may be wholly or partly lawful with regard to that IP owner.
The Tech: "RIAA Sends Thirty Pre-Liitgation Letters Over Alleged Music Piracy":
"Thirty individuals at MIT have been sent pre-litigation settlement letters after allegedly illegally downloading copyrighted music, according to a press release issued by the Recording Industry Association of America last month.
The letters are part of an RIAA strategy announced February 2007 that give students accused of piracy a chance to settle outside of court. The pre-litigation letters offer discounted settlements compared to settlements available after civil court proceedings begin, according to the press release."
TechCrunch: "And The Walls Came Tumbling Down: Madonna Dumps Record Industry":
"The only real question now is how fast will the music industry model come tumbling down. When Radiohead led the way in offering their music directly to fans many predicted that the move was the beginning of the end; Madonna may well be the tipping point from where we will now see a flood of recording artists dumping record labels and where todays model will shortly become a footnote in Wikipedia."
UPDATE: SIlicon Alley Insider: Radiohead: 1.3 million downloads!
In 1998 I co-wrote with C. Mende an article entitled "Madonna and Audio Streaming" where I'm sure I predicted all of this because I'm so damn prescient, but I'm getting a "page not found error" from ljextra.com, so it's like the article never even existed.
UPDATE: oh, it looks like someone saved a copy of "Madonna and Audio Streaming." Looks like my prediction that 'only time will tell' was wrong.
I can link to LayDdee if it's about copyright infringement.
Fred at EFF: "Capitol v Thomas: The Key Appeal Issue"
BBC: "Kwik-Fit Sued Over Staff Radios":
"A car repair firm has been taken to court accused of infringing musical copyright because its employees listen to radios at work.
The action against the Kwik-Fit Group has been brought by the Performing Rights Society which collects royalties for songwriters and performers."
A decent starting point for looking into the US law on the interperetation of 'in-store' public performance of copyrightable material and the 'home stereo' exception: Congressional Research Service: "Copyright Law's "Small Business Exception": Public Performance Exemptions for Cerrtain Establishments"
Not fearing the wrath of Stewie, my colleagues at Moses & Singer have filed a complaint against Fox and the producers of "The Family Guy", alleging copyright infringement of the song "When You Wish Upon A Star."
Text of the Family Guy complaint here.
Wiki on 'When You Wish Upon A Weinstein."
Prof Lessig: "On the Texas Suit Against Virgin and Creative Commons."
"Slashdot has an entry about a lawsuit filed this week by parents of a Texas minor whose photograph was used by Virgin Australia in an advertising campaign. The photograph was taken by an adult. He posted it to Flickr under a CC-Attribution license. The parents of the minor are complaining that Virgin violated their daughter's right to privacy (by using a photograph of her for commercial purposes without her or her parents permission). The photographer is also a plaintiff. He is complaining that Creative Commons failed "to adequately educate and warn him ... of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use." (Count V of the complaint)."
Prof Patry points out one of the leaked MediaDefender emails:
"In one case, a Universal executive asked if there was any data showing the music industry's lawsuits were resulting in less file-sharing activity from addresses ending in .edu -- namely, colleges and universities. Mr. Saaf forwarded the message to five MediaDefender employees with the message 'Take a moment to laugh to yourselves.'"
This WWD article reports that there have been 19 copyright or trademark suits filed against Forever 21 since the start of this year.
Update: Via Counterfeit Chic, here's the complaint in Carole Hochman v. Forever 21.
Balkinization: Golan v. Gonzales -- How The First Amendment Limits Copyright Law
The Tenth Circuit has handed down a very important copyright case, Golan v. Gonzales, which holds that section 514 of the Uruguay Round Agreements Act-- which implements the Berne Convention on copyrights-- may violate the First Amendment because it takes some materials out of the public domain and makes them copyrighted. Relying on language in Eldred v. Reno, the court held that the URAA violated the First Amendment because it altered the "traditional contours of copyright law." It pointed out that the tradition in the United States has been for works to be created, copyrighted and then revert to the public domain. It also pointed out that traditionally Congress has rarely ever restored copyrights for public domain works, and then only in emergency situations where, for example, war prevented the authors from complying with copyright formalities. The court concluded that neither the idea/expression distinction nor the fair use defense ameliorated the fact that work that was free for anyone to use was now locked up in fresh copyrights. Hence it remanded for further determination of whether the URAA is content neutral or content based in order to apply the appropriate level of scrutiny.
Counterfeit Chic: "Copying Clothes Over a High-Speed Connection"
"In today's New York Times, Eric Wilson goes behind the scenes at Simonia Fashions, one of many companies waiting for the first photos from New York Fashion Week to appear online. Not because the proprietors are interested in fashion's new creative direction, mind you, but so that they can pick out the most popular designs and get cheap copies into stores -- often before the originals are available for sale."
Update: Prof Scafidi's testimony before the House Judiciary Committee on the protection of fashion.
News.com: "Google News in licensing deals with wire services."
Wired: "Teen Pleads Guilty in Rare Theater Filming Case":
"The teen arrested last month for filming 20 seconds of Transformers in a Virginia theater has pleaded guilty to one count of unlawfully recording a motion picture in violation of state law."
NY Times: "A Quest to Get More Court Rulings Online, and Free"
"The domination of two legal research services over the publication of federal and state court decisions is being challenged by an Internet gadfly who has embarked on an ambitious project to make more than 10 million pages of case law available free online.
The project is the latest effort of Carl Malamud, an activist who founded public.resource.org in March, with the broad intent of building “public works” accessible via the network, and with the specific plan to force the federal government to make information more publicly accessible."
The history of HylerLaw, here.
AP: "Violent Femmes Bassist Sues Singer":
"Bassist Brian Ritchie sued lead vocalist Gordon Gano on Wednesday, saying he was deprived of credit for some of the group's songs and a proper accounting of its earnings.
The lawsuit, filed in U.S. District Court in Manhattan, also accuses Gano of trashing the band's reputation by allowing its signature hit, "Blister in the Sun," to be used in a Wendy's commercial."
Wired: "Amateur Programming Error Exposes Facebook Code":
"Owing to a misconfigured server, Facebook exposed its homepage code to what the company called “a handful of users” over the weekend. The leaked code was promptly posted on a new blog, Facebook Secrets, for all of the internet to see.
One group that should be quite happy with the leak is ConnectU, the company currently embroiled in a lawsuit with Facebook which alleges that the latter stole code from the former. If the alleged code happened to be on Facebook’s front page, ConnectU’s case just got a whole lot stronger, though ConnectU hasn’t said anything to that effect."
UPDATE: Wired: "Facebook DMCA Notices Silence Digg and Google."
P2PNet.net: "RIAA Named in First Class Action" (link to comlaint included):
"In a request for class action status which, if and when successful, will ultimately include every one of the 30,000 or so RIAA victims [plaintiffs are] looking to recover compensation for the, “significant damages caused by the Defendants” as well as punitive damages, statutory penalties, litigation fees and expenses and equitable relief.
. . . [plaintiffs are] citing negligence, fraud, negligent misrepresentation, federal and state RICO, abuse of process, malicious prosecution, intentional infliction of emotional distress, violation of the Computer Fraud and Abuse Act, trespass, invasion of privacy, libel and slander, deceptive business practices, misuse of copyright law, and civil conspiracy."
WSJ.com: Facebook Pulls Audio Service From Web Site
"Social-networking start-up Facebook Inc. says it pulled a service called Facebook Audio from its Web site because the service violated copyright rules. Facebook Audio allowed Facebook users to play full-length songs within its pages. . . . The RIAA had written July 9 to Facebook Audio, asking it to remove pages on Facebook that contained links to outside Web sites that had posted infringing material."
Reuters: Trade Group To Contest Copyright Warnings:
"A computer-industry trade group plans to file a complaint with the U.S. Federal Trade Commission on Wednesday, alleging that several content companies are overstepping bounds with their copyright warnings, the Wall Street Journal reported on its Web site.
The Computer and Communications Industry Association, which represents such companies as Google Inc and Microsoft Corp., wants the commission to order copyright holders to stop wording warnings in what it says is misrepresentative, the paper reported."
Nancy Prager on News.com: "It's About Piracy, Not Privacy":
"While Harry Potter may need an invisibility cloak to fight evil, the average Internet user does not need a cloak to use the Internet. The anonymity TorrentSpy has offered its users facilitates the mass distribution of content without permission or compensation to the owners of the copyrights in those works."
BNA Internet Law News reports that:
"A French court has ruled that online video site Daily Motion infringed copyright by knowingly allowing users to post videos without permission of the copyright owner. Daily Motion plans to appeal."
I can find no online discussion of the case yet. A copy of the French decision is here.
ConnectU alleges that the founder of Facebook worked for it when he when he was an undergraduate. It has sued, alleging copyright infringement, breach of contract, theft of trade secret and other causes. It had sued several years ago, and re-filed the complaint this past March. There has been some coverage of this lawsuit in the past however it has been mostly under the radar. There's a burst of coverage now due to an upcoming hearing on Facebook's motion to dismiss.
Email me and I'll send you the complaint, Facebook's Motion to Dismiss and ConnectU's response to the MTD.
Coverage from Slashdot, TechCrunch, and Portfolio.
ConnectU, Inc. v Facebook, Inc., Mark Zuckerberg, et. al., 1:07-CV-10593-DPW (D. Mass)
Dealing with potential infirngements by fans is tricky. In this discussion by EFF, this is identified as bad:
"On behalf of the artist’s label, we do appreciate that – of course – you are a fan of / are promoting The New Pornographers but, by the same token, you must also appreciate that, by posting a pirate copy of the album or tracks from the album – or, as in this case, a special ‘bonus’ track – pre-release (or linking to pirate copies), you are potentially causing considerable inconvenience and we are sure that you would not want to be personally responsible (or liable) for all of the resulting damage and disruption."
and this is good:
"hi
this is Colin from the Decemberists. Please please please pretty
please don't post those new songs on your blog. We'd really love to
see the record come out in its own time. I realize it's kind of
pointless to try to fight leaking, but for what it's worth. . .
I recognize that you're doing it because you like the band and are
being supportive, but you know how these things are: eventually, they
fall into the hands of less respectful people and it spreads like
wildfire from there.
thanks!
colin meloy"
Reuters: "SL Business Sues For Copyright Infringement"
"Second Life entrepreneur Kevin Alderman filed a copyright infringement lawsuit on Tuesday against Second Life resident Volkov Catteneo, and Alderman’s lawyer said he plans to subpoena Linden Lab to force it to disclose Catteneo’s real-world identity."
Billboard: Seventies Band Sues Lavigne Over 'Girlfriend.'
News.com: "Hollywood Hates Pirates, But Can It Use Them?"
This article, discussing the alleged distribution of infringing copies of a move, asks:
"whether those who downloaded the movie could have helped ticket sales by spurring word-of-mouth sales."
Is the article asking:
1. If ticket sales are spurred, is that a defense to infringement?
2. if ticket sales are spurred, should copyright holders not prosecute?
3. if ticket sales are spurred, should copyright holders re-evaluate how they distribute their content?
WaPo: "Under NFL Rules, Media Web Sites Are Given Just 45 Seconds to Score":
"In a move designed to protect the Internet operations of its 32 teams, the pro football league has told news organizations that it will no longer permit them to carry unlimited online video clips of players, coaches or other officials, including video that the news organizations gather themselves on a team's premises. News organizations can post no more than 45 seconds per day of video shot at a team's facilities, including news conferences, interviews and practice-field reports."
NY Lawyer: "Wayans Brothers Win "White Chicks" Suit" (Wayams prevails in copyright suit).
Dave Winer's take on AT&T's cooperation with the RIAA and MPAA" "I Don't Believe in the Death Penalty . . . for People".
As Thomas Pynchon once wrote: Some people can't see the a great work of architecture without thinking "chase scene."
Such people will be troubled by this BBC Report that the Church of England is planning legal action against Sony, for use of Manchester Cathedral as a background for a video game scene.
Info/Law runs down some U.S. case law on 'incidental' or 'background use of places and things.
The Seattle Trademark Lawyer points to a brief discussion of the Australian take on the general issue of building protection, in the context of photographs of the Sydney Opera House.
Prof Patry wonders what the UK law would be here so I asked world-famous UK lawyer and foremost authority Jane Mutimear , who replies:
" . . . [P]eople who comment on news stories of this nature might find
it worthwhile checking when Manchester Cathedral was built, and remind
themselves as to how long copyright lasts. Even if they can't remember
the difference lengths for the different types of copyright, they might
remember that the longest term is life plus 70, so it would be safe to
assume that architectual copyright didn't last forever and then work out
how old the architect would have to have lived for copyright still to
subsist . . . (Unless they think that God is the architect and believe he is not dead)
It's a passing off issue, if anything, obviously."
Prof Patry discusses possible ramifications of Bell Atlantic v Tombly (setting forth what is required to state a claim under FRCP 8(a)(2), on 'meritless' copyright claims.
. . . what would you do to protect against people using the Internet to maliciously disseminate spoilers?
This Jason Calacanis post is interesting as to how he (correctly) guessed that a health-related WikiPedia article had been copied from a prior NIH document (it was good and it had very few edits).
WSJ Law Blog: "Is It OK for Lawyers to Copy Complaints?" (SF Lawsuit copies Premiership lawsuit against YouTube)
Professor Bainbrige: "Copying Another Lawyer's Work" (Its not a copyright issue, it's an ethical issue).
I awiat Prof Patry's take.
TeenMusic.com: "'N Sync in Plagiarism Controversy"
Overlawyered: "The Microsoft of Kickball?"
Fashionista: Kate Moss's design team issues copyright warning which, according to Fashionista and the New York Post, is ironic. Hat tip ATL.
Who does Dodge have to pay to use 'Smoke on the Water', and how much?
Who does Apple have to pay to use 'School of Rock' using 'Smoke on the Water' and how much?
I asked my colleague at Moses and Singer, Paul Fakler, these questions.
The song is performed in two ways in the Dodge commercial, first by the 'engineer', and second as what sounded to my ears as the Deep Purple recording.
As for the engineer's version, Dodge would need to negotiate a one-off synchronization license with the owner of the publishing rights (blanket licenses such as a Harry Fox Mechanical License don't cover use of copyrighted music in audio-visual works). These licenses can run into the tens of thousands or higher if we're discussing, for example. The Beatles).
As for use in the commercial of what I thought was the Deep Purple version, Paul notes that we don't know that it is Deep Purple for sure. If a sound recording is used, the owner of the recording copyright, usually the record label, would request a license. If the requested fee for a sound recording is high, the advertiser may be motivated to hire session musicians to create a soundalike recording.
What if the soundalike recording contains some element, such as a vocal (or maybe even an instrument) that is associated with an individual? Then you would consult the Bette Midler/Tom Waits line of cases discussing right of publicity (and neighboring rights).
OK, as for Apple. First, it is using a clip from the movie 'School of Rock,' so that presumably is licensed. While the movie company would normally obtained a sync license to use the song, it is not likely that its sync license would have given it rights that extend beyond its use in connection with the movie, In other words, the advertiser that uses a movie clip can't get rights to the music used in a movie 'through' the movie. Therefore Apple would, we assume, also have to obtain a sync licence from the publishing company. As to whether Apple needs to pay Jack Black for his masterful musical performance, probably not, assuming that what we are hearing is the audio portion of the movie, and not a separately recorded version (such as sometimes is found on a movie soundtrack CD).
As another aside, use of the actors' images in the commercial, as a matter of industry custom, was most likely granted. Maybe Jack Black will get a little extra from the movie company, for this sort of thing.
Youthoughtwewouldntnotice.com - website"dedicated to pointing out those things that give you that feeling of 'haven't l seen that somewhere before?, specifically allegedly infringing things" HT Boing Boing.
NY Times: "Hoping to Move Guitar Notations Into The Legal Sunshine":
" . . . about 2 percent of the songs in the company’s catalog have licensed guitar tablature associated with them.
For the remaining songs in Famous Music’s catalog — and the vast majority of the music publishing industry’s collective catalog — there is insufficient demand to justify the costs of publishing tablature.
As a result, guitarists who want to know how to play less mainstream songs have gone to sites where amateurs post tablature. Under this agreement, MusicNotes, publishers and artists will essentially earn money from an army of volunteers, who are creating content that the publishers are not creating on their own."
IHT: "Warner's Digital Watchdog Widens War On Pirates":
"Missteps made today could have grave consequences for the future, particularly when it comes to consumers' willingness to pay for movies and television shows online, she believes. To illustrate the point, she tells of her niece's fish, named Mortimer, who one day leaped from his bowl, flopped on the table and gasped for air.
"Mortimer took the leap to freedom," she said. "He said, 'I'm free, but I'm dead,' " said Antonellis."
NY Times: "EMI to Allow Apple To Sell Songs Online":
"EMI Group PLC on Monday announced a deal that will allow computer company Apple Inc. to sell the record company's songs online without copy protection software.
The agreement means that customers of Apple's iTunes store will soon be able to play downloaded songs by the Rolling Stones, Norah Jones, Coldplay and other top-selling artists without the copying restrictions once imposed by their label.
EMI said almost all of its catalog, excluding music by The Beatles, is included in the deal"
News.com: "Starz Sues Disney Over Movie Downloads":
"Liberty Media Holding's Starz Entertainment cable network said on Thursday it is suing a unit of Walt Disney for allowing other movie download services to sell titles while they were exclusively licensed to Starz.
The lawsuit, filed in U.S. District Court in Los Angeles, was brought by Starz against Disney's Buena Vista Television, which this year signed deals to sell movies on Apple's iTunes online store and Wal-Mart Stores' new movie download site."
HT BNA Internet Law News.
Hollywood Reporter: "Music Publishers Sue XM Over Digital Copying":
"The suit, filed in federal court in New York by the National Music Publishers Assn., alleges that XM engages in massive copyright infringement through its subscription digital music download service known as XM + MP3.
According to the NMPA, the suit was filed after months of discussions between NMPA and XM regarding the satellite radio company's obligation to compensate creators fairly for the songs it distributes."
HT BNA Reporter
Brietbart.com: "Dogs Used to Tackle Movie, Music Piracy."
Coutesy WSJ Online, text of Viacom v YouTube complaint here.
I wonder what's the highest damages demand ever in a copyright case. UPDATE: $1.65 trillion. Why not ask for a gazillion dollars?
MORE UPDATE: Google Watch highlights 18 arguments in Viacom's complaint.
BuzzMachine makes an interesting point about the benefit of authorized videos on YouTube.
Getty Images Inc. is one of the largest vendors of still and moving images to the media industry. It is also a publicly traded company, which means that there is interesting stock coverage, commentary and SEC filings, relating to the marketing and valuation of images in the digital era.
ZDNet: "Yahoo China Sued For Alleged Copyright Breach":
"Music industry giants including Warner Music Group are suing Yahoo China for alleged copyright infringement by providing links to unlicensed music, trade organization IFPI said on Wednesday.
Beijing's No. 2 Intermediate Court has accepted the case, which was filed in early January by 11 companies and seeks damages of $710,686 (5.5 million yuan), said Leong May-seey, the International Federation of the Phonographic Industry's (IFPI) Hong Kong-based regional director for Asia."
Thomas C. Rubin (Associate General Counsel for Copyright, Trademark and Trade Secrets, Microsoft Corporation): "Searching for Principles: Online Services and Intellectual Property" (speech delivered to the Association of American Publishers):
"So the question we need to ask ourselves is: What path will we as a society choose in making the world’s books and publications available online? Will we choose a path that nourishes creativity and innovation over the long term and that preserves incentives for authors to offer their best works online? Or will we choose a path that encourages companies simply to “take” the works of others, without any regard for copyright or the impact of their actions on authors and publishers too?"
Microsoft 'backgrounder' with Rubin: "Balancing Copyright Protection and Intellectual Property Rights in the Digital Age"
Colleague Paul Fakler stopped by on his way to the coffee machine to advise that webcasting as we know it may soon be over. Forced by me to expand, Paul advises:
"Although the public version of the decision has not yet been released pending various redactions of sensitive financial information, the newly-formed Copyright Royalty Board has issued its decision setting new rates and terms for webcasters and certain other digital audio services. The news is not good for webcasters. The RIAA and its affiliate SoundExchange have a long history of proposing wildly high royalty rates for the various compulsory licenses provided by the Copyright Act (except, of course, when they are the licensees, e.g., mechanical licenses from song composers). In every prior proceeding, the arbitration panels have rejected that proposal and crafted a rate somewhere between the RIAA proposal and the licensees' proposals. Until now. In the previous rate setting proceeding (instituted in 2000 with rates set in 2002), RIAA requested a per-play rate of .4 cent for webcasters. The Copyright Arbitration Royalty Board (CARP, under the old system) initially set a rate of .14 cent per play, which was lowered further on appeal to .07 cent. In 2004, the first time the rates were up for reconsideration, the RIAA and webcasters agreed to extend this per-play rate. The parties could not settle when the rates recently came up for reconsideration again, and an rate proceeding commenced. According to the RAIN newsletter the Copyright Royalty Board issued its decision last Friday, and for the first time adopted the record labels' full proposed per-play rate of .19 cent (phased in from .08 cent from 2006 through 2010). According to the analysis on RAIN, even the retroactively effective rate for 2006, .08 cents per play, works out to over 100% of a typical webcaster's revenue. It boggles the mind how a supposedly market-rate determination by the Copyright Royalty Board could end up with such a rate that no sane webcaster ever could have agreed to."
This is a shame. I was hoping that Bose or Tivoli would invent a table radio with WiFi, that would receive every radio station in the world.
Disclosure: Paul represents a client in a proceeding against Sound Exchange.
Other coverage: TechDirt: "RIAA Pushes Through Internet Radio Royalty Rates Designed To Kill Webcasts.
A reviewer for Grammophone puts a Liszt CD performed by the last pianist Joyce Hatto, into iTunes. ITunes identifies it as Liszt alright, but somebody else as the performer. And the uncovering of a high profile incident of plagiarism in concert music had begun.
The rest of the Hatto story in text form via Stereophile here, and as a NPR podcast featuring some the non-Hatto works in question here.
THe Smoking Gun: Lawsuit Over Topless Aniston Photo.
New Tee Vee: "Is NHL Putting YouTube On Ice?"
"The NHL, which gained nearly universal praise for its decision to allow widespread use and sharing of highlight clips on YouTube, seems to be putting the practice of allowing embedding on ice, with some NHL clips on YouTube now sporting the line Embedding disabled by request in the embed code field."
Reel.com: Viacom to put clips on Joost, Rebuffs Youtube:
"Just three weeks after pulling their content from YouTube, Viacom is expected to announce today a broad licensing agreement with Joost, a P2P video platform which was only recently released into beta. Viacom CEO Philippe Dauman says the decision was made because Joost promised to protect Viacom's copyrights.
Viacom's decision to go with Joost is a very public rebuff to YouTube's irksome decision to only deploy filtering technology after a company signs a distribution agreement."
NY Times: "New Weapon in Web War Over Privacy":
"The new technological weapon is content-recognition software, which makes it possible to identify copyrighted material, even, for example, from blurry video clips."
IHT: "Universal Music Group poised to win royalties war with Bolt.com"
"Bolt has agreed to admit that the uploads were a violation of Universal's copyrights and to pay a settlement valued at several million dollars, said Aaron Cohen, Bolt's chief executive. Bolt will also agree to pay royalties in the future any time its users submit videos that contain Universal music.
. . .
Bolt is also negotiating similar royalty arrangements with other music labels, including Warner Music Group, Cohen said.
To pay for the settlement, which will combine cash, stock and advertising credits, Bolt has agreed to sell itself to GoFish, a smaller rival, for as much as $30 million in GoFish stock."
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New TeeVee: Legend of Bridezilla: You Can't Own a YouTube Hit (discussing multiple claims of ownership, copying and unauthorized sale of videos on YouTube).
Steve Jobs: Thoughts on Music
"So if the music companies are selling over 90 percent of their music DRM-free, what benefits do they get from selling the remaining small percentage of their music encumbered with a DRM system? There appear to be none. If anything, the technical expertise and overhead required to create, operate and update a DRM system has limited the number of participants selling DRM protected music. If such requirements were removed, the music industry might experience an influx of new companies willing to invest in innovative new stores and players. This can only be seen as a positive by the music companies."
Thompkins v. Lil' Joe Records, 05-10143 (11th Cir. Feb. 5 2007):
"This appeal requires us to consider what happens when a debtor-in-
possession in a Chapter 11 bankruptcy case, who negotiated the purchase of
copyrights prior to the bankruptcy proceeding, later uses the bankruptcy code to
reject those contracts that transferred ownership of the copyrights to the debtor.
Our resolution of that question determines the outcome of much of this suit by a
rap artist who created the works giving rise to the copyrights in question. The
artist sold copyrights in his works to a music recording company in exchange for a
recording contract that entitled the artist to future royalties. The recording
company later went bankrupt, becoming the debtor-in-possession. In confirming
the debtor’s reorganization plan, the bankruptcy court ordered that all of the
debtor’s contracts with the artist be rejected under the bankruptcy code and the
copyrights sold to a rival recording company and its owner, two of the defendants
in the instant case.
Years later, the artist sued the defendants, alleging that they did not actually
gain ownership of the copyrights through the bankruptcy, or if they did, they now
owe him royalties. Based on that premise, the artist asserts numerous claims
sounding in federal and state law. The district court granted summary judgment in
favor of the defendants on all claims, and for the reasons set forth below, we
affirm. "
Rationale: Pre-bankruptcy rejection of the copyright assignment by the debtor as an 'executory contract' (one that had not been completely executed) does not act as a recission of the contract (which would have returned ownership of the copyright to the creditor), but instead is merely a breach by the debtor, and the payments owing under the assignment, become an unsecured claim.
UPDATE: Prof Patry: 2 Live Bankrupt.
NewTeeVee: 'YouTube Should Call Viacom's Bluff'
Mark Cuban: 'Gootube Terrorizes Copyright Owners by Withholding Filters' (in which he advocates the uploading of porn to YouTube to test its filtering abilities.
Reel Pop: "YouTube's inability to remove copyrighted clips could get it sued" (in which it monitors Google's progress in removing Viacom clips).
Info/Law analyzes the question as to whether a Church can host a Super Bowl party, utilizing a 70" TV, and concludes "yes, assuming the Church does not charge admission."
Reuters: Viacom demands YouTube pull down videos:
"Viacom Inc. (VIAb.N: Quote, Profile , Research) has demanded that Google Inc.'s online video service YouTube pull down all of its video clips after they failed to reach an agreement, the company said.
About 100,000 video clips from Viacom-owned properties including MTV Networks and BET has been asked to be removed (sic).
Viacom said its pirated programs on YouTube generate about 1.2 billion video streams, based on a study from an outside consultant"
UPDATE: Well, that was fast. Google is taking down the Viacom videos from YouTube. Says a YouTube spokesperson:
"It's unfortunate that Viacom will no longer be able to benefit from YouTube's passionate audience, which has helped to promote many of Viacom's shows,"
Aside: Can you imagine the expense in having to prove ownership of 100,000 videos? Can you imagine having to pay damages for 100,000 acts of infringement?
NewTeeVee: "YouTube, MySpace Face European Copyright Clash":
"Collective licensing organizations throughout the continent have been demanding compliance in recent months, seeking their share of the potential billions generated by online video. At the forefront of this movement is GEMA – a German organization that now now has its sights on YouTube and MySpace."
international Herald Tribune: "China Suit In China Called Opening Salvo In Media War"
"A lawsuit that has been filed by one of China's largest newspapers against one of the country's leading Internet portals over the issue of massive copyright violations is being described here as the opening salvo in a media war.
In the suit, which was filed in October and is expected to go to court soon, The Beijing News is seeking $400,000 in damages from a popular Internet site called Tom.com for having copied and republished more than 25,000 articles and photographs without authorization since 2003.
. . .
Very gradually, an awareness also seems to be taking hold that China's companies must build strong brands of their own to be successful, and that this cannot be accomplished in an environment where copying goes unpunished.
"To enhance the country's development we are trying to encourage innovation," said Xu Chao, vice director of the National Copyright Bureau.
"We are placing more emphasis on intellectual property and have made improvements in the law. It used to be possible for traditional media or Internet media to simply copy each other's work, but now this has been forbidden."
Kahle v. Gonzalez, 9th Cir January 22, 2007:
"Each Plaintiff provides, or intends to provide, access to works that allegedly
have little or no commercial value but remain under copyright
protection. The difficulty and expense of obtaining permission
to place those works on the Internet is overwhelming; owner-
ship of these “orphan” works is often difficult, and sometimes
impossible, to ascertain.
Prior to 1978, the number of orphaned works was limited
by the renewal requirement. Renewal served as a filter that
passed certain works — mostly those without commercial
value — into the public domain. Along with formalities such
as registration and notice (which have also been effectively
eliminated), renewal requirements created an “opt-in” system
of copyright in which protections were only available to those
who affirmatively acted to secure them. The majority of cre-
ative works were thus never copyrighted and only a small per-
centage were protected for the maximum term. "
Prof Patry praises a SDNY copyright opinion (concerning the "Meet The Fockers" screenplay), for its brevity and clarity.
NBC Universal has three employees who view YouTube everyday for studio-owned material, and sends 1,000 requests a month to YouTube to take down such material. From: "Hollywood Asks YouTube: Friend or Foe?"
NY Times: 'Interpreting The Beatles Without Copying' (The Smithereens do their own version of the Beatles 'Meet The Beatles' album).
Not daunted by John Cage's estate's lawsuit against a group that allegedly copied 60 seconds of John Cage's work consistng of 4 minutes and 33 seconds of silence (to which the group's lawyer had replied that Cage's lawyer had not specified which 60 seconds of silence were copied), conceptual artist Jonathan Keats has now released, MyCage, a 4 minute and 33 second ringtone, consisting of computer-generated silence. He views this as superior to Cage's verision, as digital technology allows for a more silent silence (although I suppose some will argue that ambient noise was one of the points of Cage's work). HT wmmna.com.
But Samuel Clemens can't claim to be Mark Twain in my business dealings with him (if it matters to me that he is in fact Mark Twain).
Antidote International Films, Inc. v. Bloomsbury Publishing, PLC, -- F.Supp.2d --, 2006 WL 3822484 (S.D.N.Y.): Defendant author wrote a fiction work as under a pseudonym, and in promoting the work, created a persona for the pseudonym (that of the protagonist of the fiction work, a 12 year old boy). In negotiating a sale of film rights with plaintiff, defendant (in the guise of the boy's representative), represented that the boy was real (to the point of fabricating documents to prove the existence of the boy). Defendant's ruse was uncovered in the popular press, and the film rights' value dropped to nothing. Plaintiff sued defendant for fraud and under several theories under Lanham Act 43(a), including false designation of origin. Defendant moves to dismiss.
Plaintiff's fraud claim stands (as the existence of the boy was of material importance to plaintiff's plans for a film).
The 43(a) claims however, are barred by Dastar for the reasons explained here by 43(B)log. And I cannot recommend Prof Tushnet's post (and cites therein) highly enough.
In short, Dastar, intended to prevent authors of public domain works from using trademark law to re-claim such PD works (or even forcing attribution), holds that 'origin', as used by the Lanham Act, doesn't refer to the source of ideas, concepts or communications. Thus defendant did not misrepresent the origin of the novel. As Prof Tushnet notes, the practice of anonymous and pseudonymous authorship of novels seems to weigh heavily against holding otherwise.
On a related note, Lemony Snicket may not be his real name.
As YouTube goes 'legit,' other video-sharing sites are moving to fill the demand for unpoliced video content. DailyMotion.com, based in Paris, reportedly has 1 million registered users. DailyMotion's Terms of Service prohibit the uploading of infringing content, and it reportedly takes down infringing videos that have been brought to its attention.
There are, however, sites, such as Quicksilverscreen.com, that provide links that would apparently lead to copyrighted content on DailyMotion. Some of these links indicate that the content has been removed from DailyMotion, and some do not.
Plaintiff winery licensed the MARILYN MONROE name and likeness from the Monroe licensing entity, and sold wine under the MARILYN MONROE brand for many years, displaying a succession of images of Marilyn on its labels, over the years. At one point it also licensed the copyright in a famous nude photograph of Marilyn on Red Velvet, from the photographer (historical aside - nude photos used to be scandalous) and sold wine with the photo on the label. The photographer terminated the license and then licensed the photo to Defendant, a different winery, which reproduced the photo on its label. Plaintiff sues on trademark infringement for use of a photo that it can no longer use, but defendant can.
As discussed here by Prof Patry, plaintiff prevails. Even though defendant utilized the work under a valid copyright license, such use created a likelihood of confusion with plaintiff's trade dress, which consisted in part of the likeness of Marilyn on the label. The good professor questions the decision, noting the paradox that the plaintiff could prohibit the use of an image by the rightful owner, when itself could not use that image.
I've been emailing and phoning Bill this week about this paradox, and I think we pretty much agree now that the decision is ok. I guess I would phrase it this way - the bundle of rights that is a trademark, contains a negative right to prohibit all those usages that would create the likeihood of confusion but the bundle of positive rights is not identical - the trademark owner cannot use all similar images to its own, if it does not own copyright in them.
Example: Coca Cola has by now built up strong rights in the use of polar bears as trademarks for Coke. I might create a polar bear and own valid copyright in it - except that I cannot use it as a trademark for soda if it creates a likelihood of confusion with Coke's trademark rights (and, Coke cannot use an image of a polar bear that infringes my copyright in my polar bear).
So the scope of protection for a 'fluid' trademark can be hard to articulate with precision. Take images that have been updated many times over the years, such as the BETTY CROCKER or AUNT JEMIMA logos. Some of these images have been modified so any times that, from a copyright point of view, had they been independently created, the first in the series might not infringe the copyright in the last of the series (see the series of Betty Crocker images below, for example).
One would have to do a likelihood of confusion analyis of the marks still in use, a copyright analysis of images no longer in use, as well a 'residual goodwill' analysis of logos no longer in use, to identify all the potential images that would infringe the trademark rights in this 'series' of marks. I'll call the totality of the prohibited usages the negative penumbra.
However, within that negative penumbra may be certain images in which third parties lawfully own the copyright, for example because it was an artistic work that makes fair use of the protected image.
It would seem therefore that the 'positive penumbra' of trademark rights would be smaller than the negative penumbra, as the trademark owner would not itself be able to use those images without the permission of the copyright owner - the Red Velvet Marilyn photo being one such example.
Berry Croker image from here.
'Home Cookin' image from here.
From the decision:
“The hula is a general name for many types of Hawaiian folk dances. . . Hula movements have standard forms and to perform an `ike motion, “a dancer raises one hand out and one arm is bent at the elbow and the hand is open and placed behind the eye with the thumb facing downwards and the finger to show the seeing motion.” . . . At the hearing, de Silva testified that the right hand would naturally be up -- “always up because your knowledge does not come from yourself. It comes from your kupuna.[16] It comes from everything that’s come before you and that’s always up towards the heavens.”
. . .
The angle and perspective of the pieces are very similar (both viewed in profile
from the dancer’s left side), but the position of the subject dancer relative to her
setting is not. The dancer in “Makanani” kneels in the shorebreak with waves
splashing her knees, facing the ocean, and appears large and tightly focused in
relation to the unfocused shoreline distant in the background. On the other hand,
the dancer in “Nohe” kneels on the beach, but does not face the ocean -- which is
directly behind her -- and the top portion of the piece is dominated by the smaller
island jetting out of the ocean. The angle and position of the dancers’ bodies are
in the standard `ike position, but even those angles vary slightly.
. . .
The medium each artist has chosen in which to express the hula
kahiko performance contributes to the different feel and concept of the works as a
whole. The sepia photograph’s stark contrasts between darkness and light are
characteristic of the Plaintiff’s choice of film, exposure and timing. An entirely
different feeling emerges from the brightly colored and textured stained glass
collage, which can be viewed from either the front or reverse.
Decision in preliminary injunction motion here.
Hawaiian Advertiser story of case here.
The Weinstein Company (headed by the former heads of Miramax) have signed a deal that is characterized as allowing only Blockbuster to rent its movies. This discussion does a good job of explaining First-Sale Doctrine and why Blockbuster can't prevent NetFlixfrom purchasing Weinstein DVDs and renting them. However, the DVDs will likely have Blockbuster's name all over them. HT HackingNetFlix.
Prof Patry on what he views as perhaps the worst Ninth Circuit copyright case ever, Twin Books v. Disney.
BBC News: "Organist wins Procul Harum battle" (regarding authorship of 'Whiter Shade Of Pale"). IPKat commentary here.
On Monday, the Federal Court of Australia ruled in Cooper v. Universal Music Australia, that a website that did not itself host infringing MP3 files, but was structured to provide easy linking access to such files, was liable for copyright infringement. Australian IP expert Kimberlee Weatherall tells us that while the Cooper decision's 'linking is authorization of infringement' holding is not great, the specific facts of the case may limit its applicability.
Wolfgang's Vault streams concerts from the Golden Age (Fillmore, etc) and sells memorabilia. It identifies here what it purports to own, including the master tapes of the concerts, and copyrights in its memorabilia (and it even solicitis licensing) The site purchased the archives of rock promoter Bill Graham from Clear Channel Communications in 2002.
Today we hear that representatives of the Grateful Dead, Santana, Led Zeppelin and the Doors have sued Wolfgang's Vault in the Northern District of California for copyright infringement of the memorabilia sold on the site (but 'bootlegging' is also mentioned in one published account. The complaint itself doesn't seem to be on Pacer yet, so we'll have to wait and see.
"Now, a handful of giant media companies, like NBC Universal, News Corp., Viacom and possibly CBS, are close to announcing a new Web site that will feature some of their best-known television programming and other clips in an attempt to build a business for distributing video on the Internet to rival YouTube. The new business could be announced as soon as this week."
Copyscape provides a free 'website plagiarism search' in which you enter a URL, and the search returns pages that reproduce text from that URL. Play with it and tell me what you think.
ArsTechnica: "RIAA Defendant Targets Kazaa In New Lawsuit" (Someone who had been sued by the RIAA for music downloading, sues Kazaa file-sharing software provider Sharman, for, I suppose, inducing infringement). HT RealTimeIntellect.
Radio and Records: "Labels Seek Lower Royalty Rate":
"Record labels are asking a panel of copyright judges to lower the rate they pay music publishers and songwriters for the use of the lyrics and melodies with which they create sound recordings."
Glenn Mitchell, head of litigation here, has written, Take Me Out [of] the Ball Game? U.S. District Court Rejects Proprietary Rights in Player Names and Statistics" regarding C.B.C. Distribution v. MLB, a recent decision on who owns baseball statistics, published in the November-December issue of INTA's The Trademark Reporter.
Her Majesty's Treasurer has released the Gower Review of Intellectual Property. IPKat took a quick look and notes highlights in the recomendations: NO copyright extension; Fast-track trademark registration process for small business; enhanced safe-harbors against copyright infringement. Attention UK practitioners: after you've had a chance to mull, send me links to your comments.
Managing Intellectual Property article on Gower.
Two lawyers walk into a courtroom, the first lawyer goes "your client's jokebooks infringe the copyrights of my clients, professional comedians such as Jay Leno and Rita Rudner" and the second lawyer says . . ok, it needs work.
p.s. I couldn't find the complaint on Pacer - if you have a url, send it on over.
As the price of digital-playback devices (i.e. iPods) plumment, we may see more and more 'pre-loaded' offerings. Here a discussion of Load 'N Go, a company that pre-loads iPods with video content (and bundles the related DVD). However the question arises whether it is cricumventing DRM sfotware to do so. Via IP Due Diligence Blog.
Wall St Journal: "Google Search: 'Copyright'"
Commentary thereon here.
NY Times: "Have Camera Phone? Yahoo and Reuters Want You to Work for Their News Service":
"Hoping to turn the millions of people with digital cameras and camera phones into photojournalists, Yahoo and Reuters are introducing a new effort to showcase photographs and video of news events submitted by the public."
. . .
Users will not be paid for images displayed on the Yahoo and Reuters sites. But people whose photos or videos are selected for distribution to Reuters clients will receive a payment. Mr. Ahearn said the company had not yet figured out how to structure those payments. The basic payment may be relatively small, but he said Reuters was likely to pay more to people offering exclusive rights to images of major events. For now, no money is changing hands between Yahoo and Reuters, but if Reuters is able to create a separate news service with the user-created material, it will split the revenue with Yahoo.
Before photographs or videos are used on the Yahoo site or distributed by Reuters, photo editors at Reuters will try to vet them to weed out fraudulent or retouched images."
CNN: "Aging Rockers Set To Lose Copyrights" (UK mulls copyright extensions, background here).
Lawgarithms (aka Denise Howell): UMG sues MySpace in a no-lose proposition, draws Grokster judge."
Librarian of Congress: Statement on Section 1201 Rulemaking (allowing six exemptions for the DMCA prohibition on circumventing anti-copying technology.
Copyfight: "No 'Sergeant Pepper' Law in the UK"
They sell jeans for $1300? The University of Chicago hosts a virtual seminar on "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design."
Bambi Francisco (Marketwatch): "Why News Corp Won't sue Google" (discussion of how integrated media companies such as News Corp, find themselves in conflict as both copyright owners and, as in the case of News Corp which owns MySpace, copyright 'fair users.'
Procol Harum was named after the band's manager's cat and is almost the Latin for 'beyond these things' (the correct Latin would be Procul Harum). OK, now that we got that out of the way, "A Whiter Shade Of Pale" was released in 1967. Now they are fighting over it. Today's episode of SoundCheck on NPR discusses the creation of the song and the litigation, and plays the section of Bach's "Air On A G String" that is incorporated in the song (podcast available from NPR shortly).
This is a video illustrating how a cloning program works on SecondLife. What you are seeing is explained in whats seems to be the most comprehensive account of the CopyBot incident from New World Notes, including an interview with the people who wrote the original program.
IPTABlog discusses the CopyBot rampage on SecondLife and provides a round-up of comments.
We have been following SecondLife, a popular virtual world, which has been gaining traction as a demo site for 'real world' product roll-outs, 'remote' conferencing and the like. A key point is that the digital creations, such as the appearance of avatars (the digital representations of the users) and the structures, have real value, not only in the resources that were expended to create them, but in that they are being traded in SL for a currency, the Linden, that has a real exchange rate to the dollar. Vendors are beginning to bet significant sums on SL creations.
Many are therefore disturbed by this report on the Linden Labs (the proprietor of SecondLife) blog that a program named CopyBot has been distributed in SL allowing the copying of any creation within an avatar's proximity (sort of like the way the bad terminator in Terminator 2 could copy anyone he touched). Citing comments in the post thread, it appears that the significance of Copybot is that not only can it copy what is seen on the screen, but that it can copy underlying scripts that contribute to the item's appearance (such as a script that generates the texture of a surface).
Thus an avatar dress shop becomes as vulnerable to counterfeiting as any real garment enterprise.
Someone in the comment thread posted a link to a YouTube video (embedded above) that purports to demonstrate one avatar taking on the features of another.
As we noted previously, certain types of IP problems would actually be easier to enforce in a virtual world, in that users enter into terms of service that allow the proprietor to pull the plug on a user who has mis-behaved (sort of like the bad guy who unplugged his crew members in Matrix 1). Note this second post from SL indicating that ujse of CopyBot is a violation of the SL TOS.
However in this case, it seems that SL can't stop the distribution of the CopyBot program, nor tell quickly who is using it. One of the more interesting parts of SL's first post is its request for suggestions as to what to do (and take the time to read the comment threads in both posts).
Of interest is SL's remark in its second post that states "we are not in the copyright enforcement business." It articulates the various factors it has to take into account to make SL an attractive environment. However, to the extent that it wishes to continue to be the host to an exchange, it will find that successful exchanges must offer security not only to buyers but to sellers. If copyrightable material is going to be bought and sold on Second Life, then I'm not sure that the real world copyright regime is fast enough to solve problems like CopyBot. I think that SecondLife is going to have to get into the copyright enforcement business.
UPDATE: Lots of commentary on CopyBot.
This story, about controversial remarks made by Bill Maher, CNN's ediitng of those remarks, and the posting of the unedited original version on YouTube, has it all.
Copyfight discusses author Neil Gaiman's post on 'Writers, Wills and Posthumous IP Care."
Well there was a big chunk of afternoon.
I picked up the flyer pictured above, at lunch. I have never been to see a tribute band. Glenn has been to see Dark Star Orchestra and Dire Wolf.
We'll ignore the copyright issue in the flyer other than to say 'it's better not to reproduce copyrighted artwork.'
The trademark issue is interesting. The use of a hit song title (or famous lyric) as the name of a tribute band, doesn't really suggest endorsement by the original artists - in fact the argument can be made that such use is exactly interpreted by the public to suggest a tribute band. In an odd way, a name such as TRAMPS LIKE US is a suggestive mark, as it suggests a quality of the service (namely that the band plays Springsteen songs).
As to the big use of the name SPRINGSTEEN, it certainly might get someone to pick up the flyer, but would someone think that Springsteen is appearing at a bar in White Plains (did I ever tell you that I saw Springsteen at a party, once?). Would they think that this was an 'authorized' tribute band?
That led to a spirited conversation within the office as to whether in the history of the world, there has ever been a licensed tribute band (see post below), and if there has never been, could anyone ever go to see a tribute band in the mistaken belief that the band was endorsed by the original artist, given that no such band had ever existed.
It was also wondered whether there has ever been an authorized Elvis Impersonator and how close you can come to Elvis' look without rights of publicity kicking in (did I ever tell you I saw Robert Gordon do 'Blue Christmas' at the Lone Star in 1983?).
Which led to a spirited discussion as to whether a band, dismayed by the low quality of its tribute bands, would ever want to send out a 'touring company' of itself.
While led to the observation that touring companies of plays need to be authorized because there is no such thing as a compulsory license for the book of the play, however could you do a 'tribute' version of a musical without its book or choreography?
Which led to a remembrance of Robert Stigwood Group v. Sperber, 457 F.2d 50 (2d Cir 1972), which held that an unauthorized performance of songs from ' Jesus Christ Superstar' could be prohibited if the performance 'evoked' the dramatic work, by playing more than a few songs in the original sequence, and if the artists performed in the 'roles' of the original work.
Which led to the comment that a Who tribute band could do 'Tommy' in reverse order but not in correct order (and momentary contemplation of what 'Tommy' played in reverse order would sound like).
Which led to a remembrance of Phish performing 'Quadrophrenia' in its entirety in 1995 (which performance was released on CD in 2002). Which CD we had on hand and then played.
Prof Patry: "Surf-Music, Hip-Hop, Race and Copyright."
Reuters: 'MySpace cracking down on illegal music uploads.'
BBC: "Goal Footage Warning For Website" (website hosting video footage of soccer goals protested by Premier League in UK).
Food & Wine: "New Era of the Recipe Burglar" (discussion of protectability of food creations - including interview with Homaro Cantu of MOTO in Chicago).
AP: "Be Loyal, Kind and Don't Steal Movies" (Boy Scouts adopt copyright protection badge). Ht Volokh.
Universal Music sues video-sharing sites Grouper and Bolt.com for copyright infringement, which, at $150,000 a pop, could add up.
Prof Patry explains why the cost of ringtones may go down as a result.
Mountain Lions perch on rocks with their young in their mouths. T-Rex opened their mouths to eat things. Prof Patry discusses unprotectable ideas from nature and expert testimony.
U.K. declines to extend copyright protection to perfume scent. Counterfeit Chic discusses.
Prior discussion of protection of scent in the Netherlands, France, and OHIM here.
If you grew up in Queens, New York, then you have a soft spot for Run-DMC, if for no other reason than they recorded a song entitled "Christmas In Hollis." They also recorded a song called "It's Tricky" which was a hit in 1985. 'It's Tricky' sampled 'My Sharona,' the one hit for one hit wonders, The Knack. The Knack claims to have missed the first twenty years that 'It's Tricky' was around, and now have sued Run-DMC, and Apple (which sells the song on iTunes), and some others, for copyright infringement, in the UK.
I encourage copyright statute of limitation experts (and UK copyright experts) to email me because I'm a little puzzled by the statement in the article that The Knack missed the three year statute of limitations in the U.S. My understanding of the US statute is that you have three years from the last infringement. If iTunes is still selling the song (which is the case), then the infringement is on-going in the U.S. However, as Prof Patry notes, the damages may be limited to only the past three years. That may be why the suit is in the UK. Please advise.
Hollywood Reporter: "Photographer Alleges Geisha House Photos Infringe." (LA restaurant Geisha House utilizing 'lips' motif similar to 'signature' photo of plaintiff).
Google image search of term 'Geisha Lips' here.
News.com: 'Google relents, publishes Belgian court ruling.'
Related news.com article: "Publishers aim for some control of search results."
Prof Lessig reprints an exchange between a free lance photographer and AutoWeek, which published a photo in which the photographer claimed copyright. Happy ending here.
Kevin Heller makes a good point over at IP Law Daily, providing YouTube with some advice:
"If I were their lawyer, I'd advise them to post "This video has been removed as per the request of the copyright owner" rather than admitting "due to copyright infringement" as they do in the above."
Mark Cuban: "The Coming Dramatic Decline of YouTube." His view is driven in part by the notion that no sustainable business can be built on copyright infringement.
UPDATE: "YouTube Signs Deal With Warner."
Prof Patry: "Copyright Modernization Act of 2006."
NYPost: Universal Music Warns Web Video Swapper. Universal Music head suggests that they will be asking Youtube to get paid soon. Interesting reference to MTV as a 'costly mistake' and 'a hard lesson' that the musci industry will not repeat.
Link to a motion to extend deadlines in which Warner Bros. suggests that it will depose the deceased defendant's children. I would be interested in knowing the amount in controversy. Via Boing Boing.
Discussion of self-help terms in software license for robotic parking garage, via Wired.
This Boing Boing post on YouTube's terms of service as it pertains to any rights it reserves in the user's submissions, illustrates a common pattern of how the blogosphere puzzles out contractual terms:
1. Alarmist Parade of Horribles (YouTube will own your stuff and sell it)
2. Amen Chorus in Comment Thread (Those thieving copyight-owning VC-funded MSM bastids)
3. The Inigo Montoya correction (Someone writes in to note that "I don't think it means what you think it means")
4. The Horse's Mouth (YouTube spokesperson responds)
5. (Sometimes) Alarmist last word (they're still thieving copyright-owning VC-funded MSM bastids).
All things considered, I would rather not start the day reading in the NY Times that someone who works for me was accused of copyright infringement, even erroneously, but there you are.
Net Neutrality is an important issue and Seante Commerce Committee chairman Ted Stevens (R, Alaska), who was ridiculed last year for the Bridge to Nowhere, was ridiculed again last week for making a speech about the Internet that was widely viewed as being, uh, incoherent.
Part of that ridicule consisted of a song composed by Andrew Raff, blogger and attorney here. He put together The Ted Stevens Fan Club on MySpace. 2500 users last week accessed the site to hear the song about Internet tubes.
Then the site was taken down and Andrew received an email from MySpace stating:
MySpace has deleted your profile because we received a credible
complaint of your violation of the MySpace Terms of Services.
Prohibited activity includes, but is not limited to:
-Any automated use of the system, such as using scripts and/or bots
to add friends, send messages, etc.
-For band and filmmaker profiles, MySpace prohibits sexually
suggestive imagery or any other unfair, misleading or deceptive
content intended to draw traffic to the profile.
-MySpace also investigates credible complaints of copyright/
trademark infringement and will delete any materials that infringe
upon the intellectual property rights of third parties.
Now Andrew certainly didn't do the first two things, and he composed the music and the lyrics (other than those that quote the Senator) for the song, so we, and the NY Times, wondered whether the Senator, or someone acting on his behalf, had brought the complaint.
Which would have many disturbing ramifications.
So I wrote the general counsel of Fox Interactive this morning and asked who brought the complaint and what work was infringed. He responded:
" . . .the account was not suspended due to a user report.
Our customer service group monitors "fan sites" through arrangements
with record labels whose artists have official pages on the site. "
This actually makes sense. MySpace would have to use crawlers to monitor all that user content. Andrew's site attracted a lot of traffic in a short period of time, to download an audio file, and had 'fan club' in its title to boot. This fits a music pirate profile.
And what of the first email that said a credible complaint had been received? Simply put, it was wrong.
The site was put back up, and the song is available again, so no harm, no foul?
However that a policing 'bot (or human supervision thereof) should be empowered to take down the site for 40 hours - that's of some concern.
As is the fact that someone such as Senator Stevens has so much power of the issue of Net Neutrality.
Australian government explanation of the Internet here.
WSJ (free for a while): "Making a Buck Off Your Pet-Trick Videos" (discussing websites such as Revver.com, that pay users for submitting content).
I'm reminded of the Talking Heads song 'Found A Job,' about people producing their own television shows, which song was only twenty five years ahead of its time.
Ken Jennings, Jeopardy champ, has a blog, and has written an excellent post on the protectability of facts, that is to say, fictional facts about sitcoms, such as Kramer's first name. HT 43(b)log.
Today's Wall Street Journal has a profile on Old Navy, page B1, entitled "Silk and Leather At Old Navy?" In noting Old Navy's attempts to raise some of its price points, the article stated that:
". . . Old Navy designers looked at jeans from high-end brands liken Seven for All Mankind and Citizens for Humanity, which sell for more than $100. They took the garments apart, examined the stitching and fabrics, then asked Old Navy's factories to create something similar. The result, called 'special edition' denim, will sell for $36.50 to $49.50 . . ."
I ran that by Barbara Kolsun, general counsel of Seven For All Mankind, who responded: "Old Navy should hire creative designers who don't have to copy our designs and fits."
Mazzone, Jason, "Copyfraud" . Brooklyn Law School, Legal Studies Paper No. 40 Available at SSRN
Abstract:
Copyfraud is everywhere. False copyright notices appear on modern reprints of Shakespeare's plays, Beethoven's piano scores, greeting card versions of Monet's Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the owner's permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.
Copyright law itself creates strong incentives for copyfraud. The Copyright Act provides for no civil penalty for falsely claiming ownership of public domain materials. There is also no remedy under the Act for individuals who wrongly refrain from legal copying or who make payment for permission to copy something they are in fact entitled to use for free. While falsely claiming copyright is technically a criminal offense under the Act, prosecutions are extremely rare. These circumstances have produced fraud on an untold scale, with millions of works in the public domain deemed copyrighted, and countless dollars paid out every year in licensing fees to make copies that could be made for free. Copyfraud stifles valid forms of reproduction and undermines free speech.
Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. In addition, Congress should further protect the public domain by creating a national registry listing public domain works and a symbol to designate those works. Failing a congressional response, there may exist remedies under state law and through the efforts of private parties to achieve these ends."
Slashdot: "RIAA Drops P2P Lawsuit Strategy, Goes Local"
WSJ (no free online version available): The estate of Samuel Beckett does not allow any departure, not only from the text of his plays but from the extensive specific stage directions left by Beckett. It recently sought to enjoin an Italian production of 'Waiting For Godot' that cast women in the roles of Vladimir and Estragon.
Deep Links on the Consumer Electronics Association ad campaign documenting a century's worth of content providers worrying about the effect of technology on copyrighted works.
James Boyle, director of the Center for the Study of the Public Domain at Duke, writes on the WIPO Treaty on Broadcasting.
News.com: "Service Let's People Rip Videos From YouTube, Other Sites." According to this article, PeekVid and KeepVid are services emanating from Australia, which aggregate, index and copy copyighted content from YouTube, Google Video, and other sites.
Freakonomics notes that:
"Angelina Jolie and Brad Pitt solve a big problem-the illicit distribution of photos of their new baby-by distributing the pictures themselves and donating the proceeds to charity, thereby thwarting the paparazzi free market and potentially setting a new model for future celebrity photo ops."
However:
There is still illicit distribution. CNN reports that Hello! magazine, which purchased the photos, is suing various websites for running the photo.
MercuryNews.com: "Eminem settles lawsuit over use of songs as ring tones.'
Between Lawyers: Baker and McKenzie represents an entity that owns the rights to stream the World Cup over the Internet. B&M has sent out preemptive letters on its behalf, one to an American website, Boing Boing, and one to a Canadian ISP. American and Canadian commentators found the letter to be embarrassing, and abusive, respectfully.
I'm not so sure the letter was such a bad idea.
Not that I had any reason to believe that they would have any way, but I do not believe that Boing Boing is going to be running any links to unauthorized sites that allow you to stream the World Cup.
And I think that is pretty much what the client is interested in.
p.s. Boing Boing's response stating that it had never heard of the World Cup, was pretty funny.
Tech Law Prof: "Flying J Sued Over Ad Subbing on TV Feed."
Media Law Prof Blog: "Merger Doctrine and Copyright Law."
The founder of Mister Softee has died and Prof Patry discusses the copyrighted (and trademark) jingle that has Pavlovian effect in this household.
Prof. Volokh on the investigation of Prof. Ward Churchill. Prof. Churchill not only allegedly put his name on other people's work, but he would put other's names on his work. Why? So that he could cite them as supporting his views.
Design Observer: "I am a Plagiarist."
Video of Stephen Colbert saying that the emperor and the emperor's press corps have no clothes was stored on YouTube. When reports that C-Span had asked YouTube to pull the clip on copyright grounds, there were, among others, two reactions: (1) how can a government claim copyrights; and (2) did they do so to suppress the speech.
To answer the first - it turns out that C-Span is not a government entity. It is a not-for-profit entity established by the cable industry and certainly own and assert copyright. As for conspiracy theories, C-Span itself is distributing the clip.
WSJ: Can Lawyers Copy One Another's Litigation Documents?
Trademark Blog post from November 2002 on the issue here.
NY Times: "Puzzle Embedded in 'Da Vinci Code' Ruling."
If eight copyrighted works are infringed by one unauthorized compilation, then plaintiff may be entitled to eight, not one, awards of statutory damages. If thirteen copyrighted words are infringed by seven unaothrized compilations, then plaintiff may be entitled to thirteen, not seven, awards of statutory damages. More, including text of decision, on the WB Music case from Prof. Patry.
Prof. Patry on Arista v. Flea World in which a flea market is liable as intermediary. Case is significant as post-Grokster.
Google's caching procedure upheld. Decision here.
Prof. Patry's commentary ends on the hopeful (to some) note that courts may be moving away from the MAI v. Peak transitory copy doctrine.
This blog is published under a Creative Commons license that allows for non-commercial use. Adam Curry recently sued to enforce his CC license in Amsterdam and prevailed. This appears to be the first time a CC license has been evaluated in a court (if you're aware of others, please advise).
No comment from Prof. Lessig (discoverer of the CC license) yet.
Commentary from Prof. Patry with many links here.
Jason Calcanis discusses the evolving market for distributing short video content, here in the context of YouTube's and NBC's treatment of the Natalie Portman short, first aired on SNL last Saturday night.
Counterfeit Chic on virtual couture, inspired by the Oscars.
Question: right of publicity issues?
Prof Patry on a sufficiently original insurance policy that was protectable under copyright.
This is the second time I've used an insurance topic as a pretense to link to the Monty Python skit where Mr. Devious tells the Vicar that unfortunately the Vicar had purchased the 'NeverPay' policy where 'it states quite clearly that no claim you make will be paid.'
Nerdlaw reports settlement in a long-running dispute over 'The Lion Sleeps Tonight.' A weema way a weema way.
Discourse.net: agreed, this story is funny and tragic.
Wouter Pors, friend of the blog from Bird & Bird from its Amersterdam office, read our post regarding the protection of scent in France, and writes to inform me that I am sadly behind the times: the Netherlands granted protection to scent two years ago in Lancome v. Kecofa.
NY TImes: 'Man-Child In The Promised Land': David Johnston has a bi-polar disrder. He is in his 40's and lives with his parents in Texas. He composes music and creates drawings, mostly with magic markers. His work is popular and has a show in Chelsea coming up. His father buys most of his art and sells it on the Internet here. A dealer who worked hard to make Mr. Johnston popular, sometimes comes by on Sundays, when the father is in church, in order to buy Mr. Johnston's drawings.
We've spoken previously of YouTube, the 'community' video site. It now reports that it has been asked by NBC to remove the 'Lazy Sunday: Chronicles of Narnia' parody video first shown on NBC's Saturday Night Live.
The video first appeared on SNL on December 17. The media reported high numbers of downloads of the video on YouTube that week. I would speculate that many people learned of YouTube as a result. NBC may have benefitted as well. For example, I showed my kids the YouTube version that week, and they became SNL fans as a result.
Now NBC/SNL is charging for downloads via iTunes.
It is not reported when NBC sent its demand to YouTube.
At first glance, both YouTube and NBC seem to have benefitted by the free sampling.
UPDATE: NY Times reports on Monday that YouTube had approached NBC for a deal and that NBC had sent the demand letter this month. Additionally, the clip is available free now on the NBC site (which doesn't seem Mac-compatible).
ANOTHER UPDATE: Atrois writes:
'As with file sharing the right business question isn't "is someone getting music for free" the right business question is "does this really cause us to, in the net, lose revenue if we adapt our business model to the new reality." Free songs, free videos, they're all marketing techniques. Of course, giving out free songs and videos isn't exactly a new idea, it's what radio and MTV (when it still played videos) have been doing for quite some time . . ."
THIRD UPDATE: Jason Calcanis: 'YouTube Is Not A Real Business': discussing how video content must make the strike the balance between free stuff and not being available.
Counterfeit Chic on the copyrightability of a bullet-proof rose.
Something like a holy grail for the perfume industry has been achieved: Agenda Inc. reports that L'Oreal has persuaded a French Court to provide 'authorial rights' to one of its scents. I look forward to French law bloggers discussing this case.
Perfect 10 takedown demand to Google here. A bizarre document. If you use some of the model's names as Google search terms, (ALENA DRAZNA for example) then Google helpfully links to the DMCA complaint at the bottom of the search results. No, that is not how I learned of this, I learned of it from Boing Boing.
Perfect 10 wiki entry here.
Wiki list of Perfect 10 models here.
Calcanis discusses YouTube: 'Building a Business On Copyright Infringement."
Background here.
Strange case. Website owner sues Google for copyright infringement based on its practice of providing links to cached versions of his website. There is no explanation why author did not use tages to tell Google to exclude his site. The Court pointedly commented that if plaintiff had merely used such tags, there would be no suit. Held: Google's cache constitutes fair use.
Why was this suit brought? Reader Henry from NYC points us to page 24 of the decision: "Field decided to manufacture a claim for copyright infringement against Google in the hopes of making money from Google's standard practice."
Field v. Google, CV-S- 04-0413 (D. Nevada Jan 12 2006).
UPDATE: EFF commentary on case.
I suppose that this disclaimer should be applied to most of my postings but to this one in particular: I point to items of interest that usually don't provide all the information necessary to come to any sort of legal conclusion (in other words I'm not saying who's right and who's wrong):
Here is Adaptive Path's home page.
This post from Stop Design suggests that it created that page in 2003.
Here's a Flickr page showing what until recently was the home page of ColoradoLandRush.com.
Here is the home page of Site Surfer.com which appears to indicate that ColoradoLandRush.com unveiled its site in June 2005. Important note here: some of the comments in the Flickr page suggest that SiteSurfer designed ColoradoLandRush's site and point out the irony that Sitesurfer has worked with some IP sites. I'm not so sure SiteSurfer designed the site - it may merely be the hosting company.
Here is the home page of ColoradoLandRush.com today that states:
'We believe we have been the victims of US copyright law infringement with our Web site.
We have pulled the Web site and will launch a substitute in the next several hours as we investigate this issue.'
Practice pointer - Reps and Warranties and Worries
When you pay a vendor to provide you with material that may be subject to intellectual property protection, you need at least two things - a representation that the work is not subject to ownership by third parties; and indemnification that the vendor will pay for third party claims (this is without regard to how the parties determined ownership of the IP).
These reps and warranties don't protect you completely from worry. Free lance creators have, how shall we put it, views of 'fair use' that don't jibe with the law - they may completely believe in their heart of hearts that the product they deliver is their's to sell, and be quite wrong about it.
Second, indemnification from a free lance creator may not be worth much.
What else can you do? (1) do your own due diligence that the work you purchase is not a copy of someone else's (difficult); (2) work with reputable contractors (expensive); (3) maintain IP protection insurance (difficult and expensive).
Second Practice Pointer - Hidden Tags
A principal at Adaptive Path was asked how they spotted the second comer. He replied: We found it by searching on the google for "Adaptive Path" - since all the alt tags in their graphics still have our name in them, they're showing up on the first page of results. Nice!
Map makers used to put imaginary towns on their maps; directory publishers listed fake entries; software coders add (useless) commands or comments. The reproduction of these hidden tags by a third party may be evidence of wholesale copying.
Use unique tags in your source code and search for them on search engines.
Copyfight on the re-branding of Jane Austen.
NY Times article by David Pogue: 'Google Video: Trash Mixed With Treasure.'
Background discussion in YouTube here.
Via Kottke, a Washington Post article on protection of recipes
One should distinguish between a recipe, a textual rendering ofa recipe, and a compilation of recipes. Publications Intl. v. Meredith, 88 F.3d 473 (7th Cir. 1996) dealt with alleged infringement of a recipe book:
"The identification of ingredients necessary for the preparation of each dish is a statement of facts. There is no expressive element in each listing; in other words, the author who wrote down the ingredients for "Curried Turkey and Peanut Salad" was not giving literary expression to his individual creative labors. Instead, he was writing down an idea, namely, the ingredients necessary to the preparation of a particular dish. "[N]o author may copyright facts or ideas. The copyright is limited to those aspects of the work--termed 'expression'--that display the stamp of the author's originality." Harper & Row, 471 U.S. at 547, 105 S.Ct. at 2223. We do not view the functional listing of ingredients as original within the meaning of the Copyright Act.
Nor does Meredith's compilation copyright in DISCOVER DANNON extend to facts contained within that compilation. As the Supreme Court stated in Feist: Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyrights extend to the facts themselves. Feist, 499 U.S. at 350-51, 111 S.Ct. at 1290. The lists of ingredients lack the requisite element of originality and are without the scope of copyright. The Copyright Office itself has stated that "mere listing[s] of ingredients or contents" are not copyrightable. 37 C.F.R. s 202.1. The next question is whether the directions for combining these ingredients may warrant copyright protection.
The DISCOVER DANNON recipes' directions for preparing the assorted dishes fall squarely within the class of subject matter specifically excluded from copyright protection by 17 U.S.C. s 102(b). Webster's defines a recipe as: a set of instructions for making something ... a formula for cooking or preparing something to be eaten or drunk: a list of ingredients and a statement of the procedure to be followed in making an item of food or drink ... a method of procedure for doing or attaining something. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (Merriam-Webster 1986). The recipes at issue here describe a procedure by which the reader may produce many dishes featuring Dannon yogurt. As such, they are excluded from copyright protection as either a "procedure, process, [or] system." 17 U.S.C. s 102(b).
Meredith fashioned processes for producing appetizers, salads, entrees, and desserts. Although the inventions of "Swiss 'n' Cheddar Cheeseballs" and "Mediterranean Meatball Salad" were at some time original, there can be no monopoly in the copyright sense in the ideas for producing certain foodstuffs.
Nor can there be copyright in the method one might use in preparing and combining the necessary ingredients. Protection for ideas or processes is the purview of patent. The order and manner in which Meredith presents the recipes are part and parcel of the copyright in the compilation, but that is as far as it goes. As Professor Nimmer states: This conclusion [i.e., that recipes are copyrightable] seems doubtful because the content of recipes are clearly dictated by functional considerations, and therefore may be said to lack the required element of originality, even though the combination of ingredients contained in the recipes may be original in a noncopyright sense. 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT s 2.18[I], at 2- 204.25-.26 (May 1996)."
Patry: In Praise Of Imitation.
Tech Law Advisor takes on splogs (evil robots who re-post blog content word for word to create a pretense for running keyword ads), asking for much less than the one triillion dollars penalty I had proposed.
Amsterdam District Court holds that Armani shoe infringes Jan Jansen's 'Tutti Piedi.' Via Lovell's IP Newsletter (containing photo of both shoes).
Via Prof. Patry, Aharonian v. Gonzales, pro se attack on software copyrightability, brought by patent 'advocate.'
From the Splog Desk:
First, Jason Calcanis points out that Online Cash King is republishing his blog without authorization.
Then Online Cash King points out that Online Cash King is republishing his blog without authorization.
Jason: Try this - post the following: I, Onlne Cash King admit to violating the Trademark and Copyright Acts and will consent to an order entered against me enjoining me from all such future acts and paying Jason Calcanis damages in the amount of One Trillion Dollars.
This hack of Google Print which is being disseminated around the Web today at the blogospheric velocity allows you to read all (or perhaps all of the significant bits) of books on Google Print. The method seems to be especially effective for reference works.
This would seem to suggest that the market for certain types of books may be adversely affected by Google Print.
As this blogger puts it 'why lug around a 1300-page reference when you can just look it up on Google."
David Post thinks that this tool from Swedish radio named 'LET THEM SING IT FOR YOU' is a copyright violation.
Ninth Circuit decides complex case interpreting copyright termination under the 1989 CTEA (Sonny Bono act). From the decision:
This copyright action arises from a termination notice sent
by the appellant to the appellee, seeking to recapture rights to
various characters created by her grandfather, Alan Alexander
Milne, who authored the "Winnie-the-Pooh" children's books.
Milne originally granted various rights in those works to the
appellee in 1930. Then, in 1983, due to a change in copyright
law in 1976, Milne's heirs considered terminating the 1930
grant outright, but instead entered into a new agreement that
revoked the original grant and re-issued rights in the works to
the appellee. The appellant seeks to invalidate the 1983 agree-
ment based on 1998 legislation. The 1998 legislation only
authorizes the termination of copyright agreements executed
before 1978. Because the 1983 revocation and re-grant were
valid, we affirm the district court's decision.
Copyfight has exhaustive coverage.
Reading of this incident and thinking of Prof. Lessig's theory of 'code is law', all I can say is that there are still a few bugs in the system.
Denise Howell of Bag and Baggage discusses the Google Print cases and fair use. Chockful of links and comprehensive background materials. Particular emphasis is given to the 'fifth' fair use factor - is the copier wearing a black hat or white hat.
Via BBC, report on Open Content Alliance (members including Yahoo and Microsoft) intend to make 150,000 digitized books available.
Dave Winer of Scripting News discusses a quote by a Google lawyer defending Google Print, here.
Following a suit by the Authors Guild, the Association of American Publishers has now sued Google over its Google Print program.
Coverage by Slashdot,
Via Publishers.org, here is the complaint, draft by Debevoise.
