THE COPYKAT

Kylie Minogue’s fashion range loses copyright It claim

Australian pop star Kylie Minogue is associated with a range of interior design and bed linen products, produced by Ashley Wilde. In a recent action, this design company went on to sue BCPL, a brand which sells bed linen products, primarily owned by another well-known model and TV star Caprice Bourret. The subject of the litigation was with respect to a duvet cover (the cotton shell which covers a comforter) and a matching runner. The allegations of similarity were concerned with the following factual determinations (as reported in the IPKat):

- The choice of a the pattern of scallop-style pleats in repeating horizontal rows; 
- The relative size of each pleat; 
- The relative spacing between each pleat; and
- The relative spacing between each horizontal row. 

Justice Melissa Clarke firstly went on to establish that a presumption of copying will exist if the works are primarily substantially similar and there is proof of access to the prior work. However, she then went on to reiterate the rule that the question of copying concerns with the quality of the work, and not merely the quantity taken, and whether the intellectual expression and creation of the author is appropriated or not. It is not just the similarities but also the differences which need to be looked at, and the copyright needs to be determined as a whole. The differences cannot be downplayed, as was done in the case at hand.

These jurisprudential notes in combination with the determination that scallop-style pleats were relatively commonplace in the fashion industry and could not be monopolized due to it being a concept (Idea-Expression dichotomy), led the court to reject a finding of presumption of copying. Apart from this, the court found that the expression of such scallop-style pleats in the conflicting designs, in fact, encompassed sufficient differences and were not in any case substantially or extensively similar to bring in a case for the presumption of copying. The differences in the method of pleating the scallops, the number of pleats in the pleated scallops, the size of the pleated scallops and the shape of the pleated scallops, the number of repeated scallop motifs were rendered to be sufficient to avoid a claim for infringement and to establish an original distinct expression of a design made out of the concept of a scallop-styled pleat. In lieu of the same, the court rejected a finding of copyright infringement and Ashley Wilde was unsuccessful in the action.

Interestingly, this case reinforces the importance of factual evaluation and the fine line between inspiration and infringement especially in the fashion industry, to recognize the multitude of possibilities of expression in a copyrightable design and its dominion, and balance the interests of the copyright holder and the general public (other designers in the fashion industry) accordingly. It reinforces the principle of creative freedom and the leeway of experimentation on similar ideas, provided in copyright, to account for designs, which may prima facie seem similar intuitively, but are much more detailed and different when such details are analyzed. The judgment can be found here.

Versace sues Fashion Nova for infringement of the gold “Barocco” print

In yet another infringement action concerning the Fashion industry, Italian brand Versace has sued Fashion Nova to seek a remedy and redress with respect to the copyright infringement of its apparel involving the black and gold “Barocco-57” print, pop-hearts design the “Jungle print dress” that was worn by Jennifer Lopez in the Grammy Award functions. This case has been lodged in the US District Court for the Central District of California, as reported by the World IP review. The claim of Versace revolves around the principle of Fashion Nova deliberately riding on the popularity and renown of Versace’s signature designs and its valuable goodwill and business reputation, to make profits. (Trademark logic?) The use has been alleged to be within the content, text, and meta-tags of the Fashion Nova website, as well as on social media websites, wherein “Fashion Nova” results pop-up upon a search of Versace products, due to this infringing action, resulting in alleged misdirection of consumers. A notice has already served and despite the same, Fashion Nova has not allegedly taken down these infringing designs which are substantially similar to Versace’s copyrights, from its web-portal. Interestingly Kim Kardashian took to twitter to address this claim by tweeting: “ It’s devastating to see these fashion companies rip off designs that have taken the blood, sweat, and tears of true designers who have put their all into their own original ideas.”

David Gilmour involved in a legal battle for the 2015 solo-single “Rattle That Lock”.

In a suit for copyright infringement, Pink Floyd’s iconic guitarist David Gilmour has been sued by French jingle composer Michaël Boumendil, over a four-note jingle, which Gilmour was first exposed to at a French train station and was instantly charmed. According to reports, he had approached Boumendil to seek a license to use the music in a song, wherein the agreement stipulated co-authorship for the resultant song.  In a suit filed by Boumendil it is alleged alleged that instead of replaying the notes (as was stipulated in the licensing contract), Gilmour went on to interpolate the exact recorded notes. The claimant sought damages worth 450,000 Euros. When the court had to decide upon this, it was noted by the court that this infringement suit was a year after the stipulated release of the song, and hence was time-barred. But Boumendil has now more recently appealed this decision and is seeking damages for the alleged unlicensed use of this jingle, and a breach of the contract between the parties.

Jay-Z sues Australian retailer over lyrics

American rapper Jay-Z (Shawn Carter) has filed a copyright infringement lawsuit against Australian Jessica Chiha and her business “The Little Homie”, which sells hip-hop inspired clothing and apparel. The subject matter of infringement refers to the book “AB to Jay-Z” which has been created by this online retail business, to teach kids alphabets in terms of names and pictures of rappers. Since then, their imagery and names have been expended to use in a coloring book as well as clothing retail options. After being served with a legal notice, the company has maintained its defence of transformative use and fair use and has resisted the claim, which has consequently landed them in court. As far as the claim over lyrics is concerned, the lawsuit refers to the famous quote by Jay- Z: “If you’re having girl problems, I feel bad for you son, I got 99 problems but a bitch ain’t one”, which has allegedly been appropriated by the Children’s book, as it displays on its front page a quote on the same lines, which states: “If you’re having alphabet problems, I feel bad for son, I got 99 problems but my ABC’s ain’t one.”

These actions and use of the image, likeness, and quotes purported by Jay-Z have been alleged to be “a deliberate attempt to trade-off the reputation and goodwill of Jay-Z for own commercial gain”. As reported by Pitchfork, there have been multiple cease and desist notices sent to Chiha, however this retail business is adamant of this use being fair.

Can a claim of fair and transformative use subsist on the facts? It seems so - however, the main issue before the court would be the task to balance the transformative use factor with the commercial advantage factor of fair use and the acknowledgment of a violation of the publicity rights of Jay-Z. Use in clothing, unauthoriasedly, raises a direct claim under violation of Publicity rights, but as far as the use of likeness in the Children’s book is concerned, there is no direct commercial benefit accruing out of the use of the likeness of Jay-Z and it can be argued to be merely incidental and a transformative use of his identity. It will be interesting to see how this case shapes up in court.

Indian Production House Yash Raj Films booked for an alleged failure of royalty payments to the tune of 100 Crores to Authors

The Indian Performing Rights Society, which represents composers, lyricists and music producers has accused Bollywood production house YRF of unauthorisedly collecting and not distributing royalties worth 100 crores, legitimately belonging to authors  as reported by the IPRMENT law blog. A First Information Report has been filed before the Mumbai Police Economic Offences Wing. Further, an allegation of pressurising artists to enter into signing illegal agreements has also been raised. The FIR claims that while YRF managed to extract royalties from TV broadcast platforms, it hasn’t been able to collect the same from telecoms, radio stations and music streaming platforms to pay up. The core issue involved here is the non-membership of YRF in the IPRS collecting society, which is one of the major copyright societies indulging in revenue distribution. The lacunae is primarily because of the Indian Copyright Act as although it intends that royalties must be paid to the authors via a copyright society, it does not explicitly state so. The Copyright Act does not take into account the following questions, as reported in the IPRMENT law blog:

Who is supposed to pay these non-assignable and non-waivable royalties?
Who is supposed to collect these royalties?
Are authors and the assignee of their works compulsorily required to become members of a registered copyright society to claim royalties or can they continue dealing in their own works without becoming members 

Hence, due to no statutory compulsion to act through a copyright society, such dubious practices are being entered into by the Production houses, which have allegedly denied authors their claim to royalty. Recently, music composer/singer duo Salim-Sulaiman came forward in a journalistic report to state that they haven’t indulged in a work-based relationship with YRF in the last 4 years due to continuous non-payment of royalties, in spite of having allegedly collected the same. Such practices deny the authors their inalienable right to reproduction and right to receive royalty, on such assignments and the prime reason for the same is the lacunae and vagueness in the drafting of the Copyright Act of India.

 $1 Billion Lawsuit on Spotify by PRO Music Rights and Sosa Entertainment

A law suit has been filed by PRO Music Rights, LLC and SOSA Entertainment, LLC alleging that Spotify failed to pay royalties on over 550,000,000 streams. Pro music rights intends to ask a Florida based jury at the trial to hold Spotify responsible for its conduct and alleged infringement, and unfair and deceptive trade practices. The case was filed on 25th November at the United States District Court for the Middle District of Florida. The suit involves an allegation of removal of content for anti-competitive reasons, engaging in unfair deceptive and business practices and inter alia refusing to pay royalties - and publicly performing songs without a licence. According to the petition, Spotify removed the Plaintiff's profile without an advance notice without ever informing the claimant why these songs were removed. The Plaintiff's songs had genuine 550,000,000 streams before being removed an  was one of the most popular playlists. The petition further states:

“As it knows and claims to do, Spotify is required to remit royalty payments to Plaintiffs for the streams of their songs and to obtain public performance licenses for the public performance of songs on its platform. To date, however, Spotify has not paid full royalties for the 550,000,000+ streams of Plaintiffs’ songs on Spotify’s service”

It has also been alleged that the motive for removal of all these songs is linked with its equity deal with Music and Entertainments Rights Licensing Independent Network in order to pressurize MERLIN to terminate its contract with SOSA, as high stream counts from unknown independent acts do not generate close to the same revenue for Spotify from advertisements, as compared to mainstream acts, and do not offset the royalties owed. Further, it was alleged that 99% of the users responsible for the 550,000,000 streams of Sosa’s songs were ad-supported users rather that subscription users. Is this as a result of such discrimination on the part of Spotify against less established artists?  the Plaintiff thinks so and says it's musicians have suffered economic loss. This has been alleged to be an anti-competitive practice to oust independent musicians from the music market, merely due to less revenue for streaming services. In continuation, Sosa has also alleged that”

“Spotify continues to unilaterally profit from Plaintiffs’ music; despite purporting to remove Plaintiffs’ content, some of the Plaintiffs’ music continues to stream without license via Spotify-generated playlist(s), and without any compensation made to copyright holders, in blatant disregard of the Copyright Act. Spotify is legally obligated to pay royalties for streaming music.”

This battle will be interesting for the survival and growth of the Independent music circuit. The math can be done here:

1)    Mainstream artists are targeted by companies with a higher marketing budget, due  to the expectation of more number of streams and popularity, resulting in more consequent advertisements (of the company). These companies offer large sums to Spotify, in lieu of the advertisements – which gives Spotify its revenue 

2)    Independent Artists and non-mainstream music artists have a low budget advertisement attached to them, which provides less money per stream for Spotify, due to budget advertisement companies being associated therein (less revenue per stream as compared to mainstream songs).

3)   Royalties to be paid in lieu of streaming is equal because of it being a statutory amount and does not in any way vary upon the artist being mainstream or not. 

4)  This leads Spotify to a situation that with  the enhanced popularity and number of streams of non-mainstream and indie music as well (550,000,000), they get less revenue for a large number of streams (as compared to what they would have gotten, had the streams been on mainstream songs), and they have to pay equivalent royalties to both mainstream as well as indie artists.

5)  The ultimate conclusion out of this analysis is the low earning on the part of Spotify through indie artists, and equal royalties to be paid, which has led them to oust them from the market, in order to attract more streams for mainstream artists only which would lead to a higher ad revenue per stream for Spotify (when balanced with the amount of royalty to be paid, which remains constant).

At the core of this is the allegation that Spotify is contributing to the already persisting anti-competitive and unequal structure of distribution of music, wherein mainstream artists who have more funds to produce and market the music and are signed to a bigger record label are able to flourish, whereas independent artists are left marginalised - and fail to get fair compensation - or reach.

From the point of view of a musician, this is a sad state of affairs, where mere economic benefit is being preferred on the cost of access of more genuine and original content to the public, which was, in fact, the goal of copyright in the first place. This arguably de-incentives the musicians (especially independent ones) from creating music (to some extent),  due to the lack of marketing capability (although money is not the sole incentive), and is not competitive or ethical practice. True or not - does that matter in a court of law?

It will be interesting to see how the court approaches this and if it enters into this socio-economic aspect of survival of musicians who do not have much access to funds to market their music and content.

Plaintiff’s petition can be read here.

This Copykat by Akshat Agrawal

THE COPYKAT

The makers of a 'Grease' spoof have gone to the courts in the US seeking confirmation that their show is covered by the doctrine of "fair use" in retaliation to a 'cease and desist' letter from the publishers of the original musical. Grease, made world famous by the 1978 romantic comedy movie starring John Travolta and Olivia Newton-John is based on the 1971 musical of the same name by Jim Jacobs and Warren Casey. Theatre publisher Samuel French, now owned by Concord, represents the rights in the original musical.  According to Sketchworks which created the spoof 'Vape: The Musical'  the new production "uses millennial slang, popular culture, a modern lens, and exaggeration to comment upon the plot, structure, issues and themes of 'Grease' and to criticise its misogynistic and sexist elements". But Sketchworks say their argument that the play was a parody of Grease failed with Concord's lawyers and indeed the theatre that was due to host the spoof was putt off by the cease and desist letter. Sketchworks now wants "a declaratory judgment of fair use so that it may perform and otherwise exploit 'Vape' without further delay".

Buste de femme (Dora Maar) by Pablo Picasso

And the San Fransisco Chronicle reports that the San Francisco art editor who reprinted and sold copyrighted photos of paintings by Pablo Picasso as part of a reference book did have the right to do so under U.S. law - and that means he does not have to pay damages of $2.68 million ordered by a French court. In 2012 the court in Paris ruled that Alan Wofsy, had violated a previous order against making any commercial use of the photos, and ordered him to pay damages to the copyright-holder. Nearly 16,000 photos of Picasso’s works, taken from 1932 to 1970, were published in a 22-volume catalog after the artist’s death in 1973. In 1996, Yves de Fontbrune, a Frenchman who had purchased the publisher’s stock and obtained the copyright, sued Wofsy in France for reproducing some of the photos in “The Picasso Project,” a publication he offered for sale at a Paris book fair. Now U.S. District Judge Edward Davila sitting in San Jose has ruled the order is not enforceable in a U.S. court because federal law allows publishers to use copyrighted works for different purposes under the doctrine known as “fair use.” Wofsy’s book used less than 10% of the pictures in a photographic material available in a catalogue of Picasso’s paintings, which was intended for a different market and the court found that Wofsy's work did not compete with the catalogue, saying said fair use applies as the new book as the doctrine promotes “criticism, teaching, scholarship and research” by allowing copyrighted works to reach wider audiences with Wofsy's legal team saying said the judge recognised that “what he was doing, generating a reference work for libraries, academic institutions, auction houses and art collectors, is different from trying to compete” with the catalog of copyrighted photos.

Fitness firm Peloton that was recently called out for using unlicensed music and sound recordings in its popular (and profitable) exercise videos has admitted that "the challenges and complexities of music licensing are a key risk to its business". Peleton is facing a lawsuit  from a number of music publishers which alleges that Peleton's fitness videos contain unlicensed songs. Peloton countersued in April, mainly citing competition law arguments. The company is now heading for IPO and the pre-IPO filing states: "Given the high level of content concentration in the music industry, the market power of a few licensors, and the lack of transparent ownership information for compositions, we may be unable to license a large amount of music or the music of certain popular artists, and our business, financial condition, and operating results could be materially harmed" adding that despite "expending significant resources" on music licensing, the complexities of music rights ownership and song licensing meant that it could never be absolutely certain it wasn't "infringing or violating any third-party intellectual property rights" with the music already featuring in videos on its platform. At the time of the March lawsuit against Peleton  David Israelite, president and CEO of the National Music Publishers’ Association said “It is frankly unimaginable that a company of this size and sophistication would think it could exploit music in this way without the proper licenses for this long, and we look forward to getting music creators what they deserve.” The claim now stands at $300 million. Image (c) 2018 Ben Challis. 

Pitchfork reports that an  appellate court has ruled that iconic film composer Ennio Morricone can reclaim the rights to his film scores. Morricone sued Bixio Music Group in 2016 in an attempt to regain the copyrights to six of his film scores from the late ’70s and early ’80s arguing that his contract with Bixio expired in 2012 using the provisions of the US copyright law that  lets authors terminate a trasfer of rights  35 years after a work’s initial publication. The composer reportedly served Bixio a termination notice in 2012, but the company didn’t give their claim. In fact the composer lost at first instance in October 2017 when a New York federal court  determined that Morricone’s works should be considered “works for hire” and  that would block the composer’s termination rights. The U.S. Court of Appeals for the 2nd Circuit reversed that decision, saying the scores shouldn’t be considered “works for hire” in either U.S. or Italian law.

And finally, the three major recorded music labels, Universal, Sony, and Warner have issued legal proceedings against a US  internet service provider to be found liable for facilitating its customers’ copyright infringement. In their complaint, the major labels allege RCN Telecom has been aware for years of rampant copyright infringement by its subscribers, thousands of whom they assert include repeat offenders (UMG Recordings, Inc., et al. v. RCN Telecom Servs., LLC et al., 19-cv-17272 (D.N.J.)).  JDSupra reports that the federal suit contends RCN has received more than 5 million infringement notices, but turned a blind eye to music piracy by continuing to provide high speed internet to these users. The major labels claim RCN’s inaction facilitated copyright infringement and caused RCN to become a “haven for infringement.” 

Copyright Infringement Suit Against Supermodel Gigi Hadid Dismisssed

Judge Pamela K. Chen from the Eastern District Court of New York dismissed on July 18 a copyright infringement suit filed by XClusive-Lee, Inc. against supermodel Gigi Hadid, claiming that a picture she posted on her Instagram account was infringing.

Hadid’s Instagram account currently has almost 49 million followers, interested in viewing family pictures, fashion magazines cover featuring Hadid, fashion shoots and fashion photographs. Hadid posted in October 2018 a cropped version of a photograph of her taken the day before by a paparazzi outside Vogue’s Force of Fashion conference, where Hadid was part of a panel. 

The original version of the photograph showed Defendant wearing a denim jacket and shorts, a small handbag, high heels, jewelry and make up, smiling at the camera in an outdoor urban setting, probably outside the New York City studio where the conference took place. 

The photo posted by Hadid on social media was cropped mid-thigh. She added as comment:”all smiles post #ForceOfFashionpanel @voguemagazine.wearing #messikabygigihadid mini-cuffs and mono earing”, referring to a line of jewelry bearing her name which is sold by a French jeweler.  The “mono earrings”referred to in the post retail at $5,710. 

Xclusive-Lee, Inc., the company which owns the copyright to this photograph, filed a copyright infringement suit against Hadid in January 2019, claiming Hadid “copied and posted Copyrighted Photograph to Hadid’s Instagram account without license or permission from Xclusive-Lee.” It claimed that it was entitled to statutory damages, including any profits realized by Hadid attributable to the infringement, pursuant to 17 U.S.C. § 504. 

As a reminder, a work is protected by copyright, if it is fixed in a tangible medium and if it is original enough, even if it is not registered. However, a registration is required if filing a copyright infringement suit, and the Supreme Court recently held in Fourth Estate Public Benefit Corp. v. Wall-Street. Com LLC  that § 411(a) of the Copyright Act requires that copyright registration occurs “only when the Copyright Office grants registration” (at 888).

At the time of filing the suit, Plaintiff had applied for a copyright in the photograph, but had not been granted registration. Plaintiff argued that it had filed the copyright infringement suit before the Fourth Estate decision, but the EDNY rejected the argument as the Court cannot decline applying a Supreme Court decision “merely because the Supreme Court decision was issued after the filing of the compliant at issue in this case.”

 

The case was dismissed because the photograph was not registered with the Copyright Office.

That said, posting a photograph protected by copyright on Instragram without permission is copyright infringement. The Complaint noted that Hadid’s Instagram account featured several examples of “uncredited photographs of Hadid in public, at press events, or on the runway” and that “[m]ost if not all of these photographs were posted by Hadid without license or permission from the copyright holder.” 

Could it be fair use? Hadid may have used this photograph in order to contribute to the promotion of her jewelry line. Therefore, the character of the use, one of the four fair use factors, may have been for commercial gain, not for the sake of commenting or news reporting for the Vogue conference.

The second factor, the nature of the work, would probably be in Hadid’s favor, as it is not very creative. Hadid did not use all of the work, but cropped it, but she nevertheless substantially used the work, and so the third factor could have been in Plaintiff’s favor as well. The fourth factor, the economic effect on the value of the work, measures the effect of the use on the market. The picture could be licensed to be used on her Instagram account in order to promote a commercial line, and so it is possible that the fourth factor would have been in Plaintiff’s favor. 

It could it be argued that this particular photograph was not protected by copyright, as a work must be original enough to be protected. The photo was taken in the streets of New York, and must have been taken quickly, thus leaving little time for the photographer to make choices. Hadid deftly takes the pose, and it can be argued that it is her professional experience which contributed to the picture being original, unless the pose was directed by the photographer.

If a copyright registration had been granted before filing the case, the suit would likely not have been dismissed, as fair use is fact-based and thus is unlikely to be decided when granting a motion to dismiss.

However, if a copyright registration is mandatory for filing a copyright infringement suit, the Copyright Office may start to examine more closely whether a particular work is indeed original enough to be protected by copyright…

Take-away: Plaintiff must have a valid copyright registration before filing a copyright infringement suit.  

Court rules Andy Warhol's Prince Portraits are fair use

On the left:  Prince, Lynn Goldsmith, 1981; on the right: Prince, Andy Warhol, 1984

The US District Court, Southern District of New York, on July 1 ruled that Warhol's 1984 "Prince Series" do not infringe Lynn Goldsmith's copyright on a Prince's photograph shot in 1981 for Newsweek and never published.

In October 1984, Vanity Fair licensed for 400 dollars one of Goldsmith's black-and-white studio photographs of Prince by her agency, while the photographer did not know that her work had been licensed for use as an artist's reference. Indeed, Vanity Fair commissioned Warhol to create an illustration of Prince titled "Purple Fame", which was published in the November 1984 issue of the magazine. The article contained a copyright attribution for the portrait making reference to the Goldsmith's source photograph. Based on the Goldsmith's Prince photograph, Warhol created also the Prince Series, comprised of sixteen works: twelve silk-screen paintings, two screen prints on paper and two drawing. Twelve of the sixteen works were then auctioned or sold; all works were licensed for use in books, magazines, newspaper and merchandising purposes.   

After Prince died on April 21, 2016, Vanity Fair republished an online copy of its November 1984 "Purple Fame" article, crediting Warhol and Goldsmith for the Prince illustration in the article, beside publishing a commemorative magazine using one work of Warhol's Prince Series as magazine's cover, crediting only Warhol and not Goldsmith. 

In July 2016, Goldsmith started complaining with the Andy Warhol Foundation that Warhol's Prince Series infringed upon the copyright associated with her photograph, demanding the Foundation to pay a substantial sum of money and threatening to sue if the Foundation refused.

The Foundation preemptively sued Ms Goldsmith and her company in 2017 seeking a declaratory judgement that the works based on Goldsmith's photograph do not constitute copyright infringement, being dissimilar to the Goldsmith Prince photograph and, in any event, that the series is protected by fair use doctrine. In addition, the Foundation raised also a statute of limitation defense, arguing that the three-year statute of limitation barred the defendant's claim. Goldsmith responded with a counterclaim for copyright infringement. 

The Court did not evaluate all parties' claims, focusing on whether that Prince Series were protected by fair use applying the four-factor test.

As to the first factor i.e. the purpose and character of the use, the Court found that the Prince Series works can be considered sufficiently transformative. Whereas Goldsmith's photograph centered on helping Prince to reveal his identity of vulnerable and uncomfortable person, Warhol's Series created an  "iconic, larger-than-life figure" of the singer using unrealistic colors, employing a new aesthetic and conveying a new artistic message. Furthermore, each work of the Prince Series is immediately recognizable as a "Warhol" and not as real photograph.

As to the second factor, that is the nature of the copyrighted works, the Court ruled that its significance - as for the first factor - is diminished when the secondary work uses the copyrighted work for a transformative purpose as in the case at issue.

With reference to the third factor, i.e.  the amount and substantiality of the portion used in relation the copyrighted work as a whole, the Court observed that Warhol removed all protectible elements of Goldsmith's photograph in creating his Series. Indeed, he used only a portion of Goldsmith's photograph that is Prince's head; employing sharp contours of Prince's face and bright colors instead of black and white, giving a flat, two-dimensional effect rather than the three-dimensional one of the source photograph. 

As to the final fair use factor i.e. the effect of the use upon the potential market for or value of the copyrighted work, the Court inquired whether Warhol's Prince Series usurped the market for potential derivative works of Goldsmith's photograph. The Court found that the licensing markets of the two artists are very different and the Prince Series works cannot be considered as market substitutes that have harmed, also potentially, Goldsmith's market.  

The Court granted the Foundation's motion for summary judgement, dismissing Goldsmith's copyright infringement counterclaim. Goldsmith's lawyer said to New York Times that she was very disappointed from the fair use finding, hoping that the appeal will be more successful. 

THE COPYKAT

The Verge have published a new article on the role and implications of AI - artificial intelligence - in the 'authorship' of musical works - although the same thoughts must surely apply to artistic, literary and dramatic works . In 'WE’VE BEEN WARNED ABOUT AI AND MUSIC FOR OVER 50 YEARS, BUT NO ONE’S PREPARED' Dani Deahl asks some interesting questions - and find very few answers! As AI begins to reshape how music is made, how are our legal systems going to answer some messy questions regarding authorship. Do AI algorithms create their own work, or is it the humans behind them? What happens if AI software trained solely on Beyoncé creates a track that sounds just like her? Just a few of the thoughts in there!  Jonathan Bailey, CTO of audio tech company iZotope, seemed to most concisely sum up the issue “I won’t mince words,” he told The Verge. “This is a total legal clusterfuck.”

Bloomberg reports that a US photographer could lose some or all of a $450,000 jury award because he didn’t establish that the allegedly infringing business owner willfully infringed his copyrights by hiring a web developer who used unlicensed images. The U.S. Court of Appeals for the Ninth Circuit April 16 reversed part of a jury verdict in favor of photographer Jim Erickson in his 2013 lawsuit against Kraig Rudinger Kast holding that Erickson failed to show Kast financially benefited from the infringement or went beyond negligence into willfulness, remanding those issues back to the lower court: “Negligence is a less culpable mental state than actual knowledge, willful blindness, or recklessness, the three mental states that properly support a finding of willfulness”. And more on in a similar vein from the Second Circuit Court of Appeals in the case between BWP Media and e-commerce website Polyvore - digested by the New York Law Journal here. 

The US government has published its annual piracy report from the US Trade Representative which highlights where the US feels IP rights are most at risk. Both of America's closest neighbours, Canada and Mexico, appear on the list of countries that should be doing more to protect IP rights but special mention goes to Algeria, Argentina, Chile, China, India, Indonesia, Kuwait, Russia, Saudi Arabia, Ukraine and Venezuela. In a statement the UTSR said  "These trading partners will be the subject of increased bilateral engagement with USTR to address IP concerns. For such countries that fail to address US concerns, USTR will take appropriate actions". Drilling down into where the problems lie,The Pirate Bay gets a mention but the report acknowledges that other forms of piracy are now out-performing file-sharing. The report notes that "pirate streaming sites continue to gain popularity, overtaking pirate torrent and direct download sites for distribution of pirated content". The USTR says that the aim of its annual piracy bad boys list is "to motivate appropriate action by the private sector and governments to reduce piracy and counterfeiting".

A US federal appeals court has rejected a fair use ruling by a lower court in a case that focuses on what can and cannot be considered when applying the doctrine. The District Court in Brammer v. Violent Hues had found that the unauthorised use of a photograph qualified as fair use, even though it was a commercial use that did little to give any new meaning to the original photograph. At the time of the ruling US District Judge Claude M Hilton was widely criticised by legal observers and photographers’ trade groups who disagreed with his ruling that Violent Hues’s use of Brammer’s photo was “transformative” because Brammer had created the image for “promotional” purposes, while Violent Hues used it for “informational” purposes. The U.S. Court of Appeals for the Fourth Circuit has emphatically reversed the lower court’s ruling saying “What Violent Hues did was publish a tourism guide for a commercial event and include [Brammer’s] Photo to make the end product more visually interesting. Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet” adding “If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work” and that " “fair us is not designed to protect lazy appropriators". 

THE COPYKAT

THE MARS ARGO COPYRIGHT INFRINGEMENT DISPUTE:

In a case being tagged as “one of the most important battles” in YouTube history, Mars Argo (Brittany Sheets) had alleged identity and copyright infringement against Corey Mixter and Moriah Pereira (commonly known as Poppy). The grounds of the allegation mostly related to a video put up by the duo, which was termed as a “Mars Argo knockoff” by Sheets. The core of the dispute (as far as copyright and image rights are concerned) rested upon the claims stating an intimation of Mars Argo’s identity, likeness, expression of ideas, sound style and certain other distinctive elements of Argo’s voice and look (dyed hair to a specific Platinum color). It was claimed by Sheets in the lawsuit, that the duo tried to emulate the look as well sound style-associated with her and tried to pass themselves as her for commercial purposes. This law suit has however reached an ugly settlement (details can be found here) where the parties have agreed to never speak to or of each other and where all the rights to the work and identity have been settled to remain with Sheets. According to us however, a claim for fair use is bound to exist here, as there was no substantial reproduction of the work per say, and such a restrictive interpretation of a parody can have major ramifications on the YouTube creator community. Even in the case of H3H3 v. Matt Hoss, fair use was upheld on a YouTube upload which was criticising or came into the category of a parody. Similarly, herein as well merely the style or the way the content is expressed has been appropriated rather than the expression itself. The intricacies of the matter are not present in the public domain and hence an accurate analysis would be tough to construe, however I would like to point out to the case of Campbell v. Acuff Rose (1994) which bought in the concept of “parody as an obvious claim of transformative and fair use”. Justice Souter in that case had held that, parody, like comment or criticism, is bound to be covered under fair use and Section 107 of the US Copyright Act. It is an amalgamation of reference and ridicule which has been held to be permissible as a transformative element. Further, the court had coined the “conjure up” test wherein it was established that the threshold to deny a finding under fair use, in the case of a work which was a parody, was when the parodist appropriated a greater amount than necessary to ‘recall or conjure up’ the object of the parody. Hence, merely appropriating the sound style or look won’t qualify as infringing content per say, as long as substantial similarity is sufficiently established.

IS BLOCK CHAIN THE NEW SOLUTION TO COPYRIGHT INFRINGEMENT IN THE JOURNALISM INDUSTRY?:

As reported in Spanish by Cointelegraph, the Argentina based NEM foundation signed an MOU with a local trade union of journalists to work upon building a blockchain based solution for copyright protection. The issues which are sought to be countered through this are that of content theft and royalty paying failures amongst others. It has been developed to regulate the flow of content and enforce licensing rights effectively. A similar arrangement was recently entered into for a similar purpose by Associated Press (AP), to track the use of content. AP had entered into such an agreement with CIVIL, to use its network to track the use by potentials of created content. The main aim of the same is to keep a check on the chain of value and ensure adequate receipt of credit and compensation on the event of exploitation and use of a copyrighted work. The usage of block chain technology has been hailed to be effective in keeping track of how the information is used and avoid use for illicit purposes like Fake News propagation. Control over all kinds of information created, with the creator, has been argued to be the basic goal of inculcation and usage of blockchain technology, particularly in journalism.

The method of operation of the same has been enunciated upon by the press secretary of the local Argentina based union of journalists – CISPREN, who states, “Authors will be able to upload their content to blockchain, ensuring authenticity. Further, presence of a QR code along with a digital signature will be additional safeguards in the case of a dispute.” An advantageous implication of the emergence of blockchain technology in the journalism domain obviously will be the presence of a “vigilant eye” for anyone violating copyright due to a permanent record of the work and the ability to track the usage of the work, as has been reported by the bitcoin magazine. However, certain anxious issues exist as well, with the evolution of technology and the incapability of law to address the various consequential problems associated with it. The law, is not in its current state, woke enough to accommodate to such technological usage and there is grave possibility of misuse. Due to the anonymous nature of blockchain based transactions, which are embedded in an immutable manner, there is a huge possibility of circulation of infringing content and mis-information. The option to exploit such technology is not merely limited to rightsholders but rather is accessible to infringers as well, and until regulation is at its paramount, there is a certain risk associated with the adoption of newer technological mechanisms. Certain questions like management of takedown requests, identification of location of infringing work in an immutable embedded world are being posed, which are imperative to be brainstormed upon before lauding the appealing usage of such technology.

THE US “REGISTRATION” REQUIREMENT IN COPYRIGHT LAW:

The registration requirement is unique to the United States copyright enforcement and has been a topic of debate, in relation to its ambit, since long. There has been a split on the threshold requirement to fulfil “registration” amongst the circuits, with some preferring the “certified registration complete” approach (10^th and 11^th circuit) and some, the application approach, which is limited to merely applying (5^th and 9^th circuits). Even within the 6^th and 7^th circuits, there is no harmony in the view adopted and there has been a multitude of opinions flowing as to which is the most appropriate and intended one. The Copyright office has also shown its support towards the registration approach. It’s inclination towards the registration approach obvious, keeping in mind the profitability that follows from it. There is an expended approach mechanism, wherein the rightsholder can finalize upon a registration in under 5 days, upon the payment of a hefty 800$ per claim, over and above the regular application fee. The argument resorted to by the proponents of the registration approach is merely grounded on the literal rule of statutory interpretation, read on the provision which states,” no action for infringement can be instituted until registration of the copyright claims are made in accordance of the act.” This however goes against the creators’ interest and is a burdensome procedural flaw in the US copyright system.

This issue is finally being taken up the US Supreme Court, upon a certificate issue in the matter of Fourth Estate Public Benefit v. Wall-Street.com. The Supreme Court too on 8^th January, seemed divided on the interpretation with Justice Elena Kagen saying that the only way to be read the statute is to imply registration as registration being made and finalized conclusively. This was in support by Justices Sonia Sotomayor and Brett Kavanaugh and Chief John Roberts, however the Chief also acknowledged the technological development taking place resulting in faster infringing mechanisms and the problems associated with waiting for completion of registration. A purposive interpretation was also argued for by the amicus groups in the issue like the National Music Publishers association. In my opinion, in the current age of technological dynamism and the Copyright Act being drafted in 1976, waiting for a registration-based practice can result in validating infringement actions on an incidence of a lackadaisical conduct by the Copyright office. Further, there is a chance of exploiting the literal connotation of the provision by the Copyright office, in order to mooch of extra money. Hence, a harmonious purposive construction is imperative to effectively safeguard the rights of the shareholders especially in the realm of US Copyright law, wherein the threshold of copyrightability is a minimal modicum of creativity as compared to novelty in patent law.

 COPYRIGHT IN TRADITIONAL SONGS?:

India is known as the land of folk music because of the traditional association of music and lifestyle even within the diverse religious and sectoral groups present. An interesting question regarding the copyrightability of such traditional songs has been brought in before the Bombay High Court, which is set to decide this matter soon. Old songs which are sung in traditional community-based weddings have been argued to have been infringed by being included in a lyrical compilation, without the earlier author’s permission who had published the same earlier. The counter argument that has been raised is that these songs are traditional and not owned by any individual person. They are in the Public domain. In this light, I would like to get in the WIPO’s interpretation of the same. The WIPO has described the concept of Traditional Cultural expressions and has used it synonymously with the phrase “expressions of folklore”. It has defined it to mean productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community. These include verbal expressions such as folk tales, musical expressions such as folk songs and instrumental music.  They have defined traditional as- not “old” but rather an expression based upon tradition or associated with an indigenous or traditional society (based on location or community beliefs) and practiced in traditional ways. (WIPO Publication no. 489 (E), 2004). A specific expression of the same inculcating elements of originality or in a form of a compilation has although been held to be protectable due to involvement of sufficient skill and judgment, which is the threshold of originality. This doesn’t seem the case for lyrical infringements as the lyrics are always in the public domain and cannot be specifically changed in traditional works. “Traditional” implies a community economy, wherein authorship is not a central concern and is evolutionary in nature.

Hence, it can easily be held that a copyright or a monopoly right to exploitation cannot be claimed over lyrics of a traditional song that has been published, due to it being a generic element of a society and hence a mere idea rather than an original expression of the same. The court in the case at hand, although, needs to analyse the work wherein copyright is being claimed and examine whether, there are elements in the work which go beyond being traditional and generic, and fulfil the threshold of originality. Otherwise, a claim of copyright on an expression of a traditional song merely lyrically written, should ideally not be sustainable and there would be no infringement.

THRESHOLD FOR FAIR USE IN PHOTOGRAPH PROTECTION TO BE REVISITED:

A certiorari has been filed in the United States Supreme Court, against the decision of the 9^th Circuit case of Rentmeester v. Nike, (883 F.3d 1111 (9th Cir. 2018) wherein, it has been argued that the 9^th circuits decision is problematic and creates a circuit split, by giving “photographs a thinner protection than any other art form”. It has been alleged that an evaluation which requires super-substantial similarity is to be conducted which goes against the 11^th, 1^st and 2^nd circuit decisions which treat the individual elements of a photograph substantially protectable while evaluating the whole, rather merely the whole of the expression. The background of the case dealt  with 2 photographs involving Michael Jordan jumping in the style of ballet’s grand jete, with the ball in his left hand. However, the picture was taken from a different angle. This issue has been previously covered by the CopyKat in January 2015 and March 2018. The dispute in the 9^th circuit case involved 2 photographers, however it brings up a highly important question of how to treat photographs in copyright law and the concept of art within it the law - and transformative art in the context of 'fair use'. In the case of Cariou v. Price, 714 F.3d 694 (2d Cir. 2013) , substantiality was evaluated on the basis of “character” and “aesthetics”. Similar questions have been asked in cases like Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014), however a conclusive determination of what is to be considered of substantial importance when evaluating similarity amongst photographs is yet to determined. The CopyKat has its eyes set. Will it be lighting choices or painter’s use of colours?, individual elements or the whole of a photograph?, superficial texture or imagery? It will be really interesting to see how the Supreme Court resorts to resolve this long standing question. In my opinion, there is no infringement in the case at hand as separate creativity was exercised on the part of both the fixers in terms of clicking the photograph and the instantaneous reactions irrespective of the subject captured. It’s not the subject pictured which is copyrightable rather the expression which comes out of the photograph. Until and unless, the same photograph is not reproduced, merely the subject which is fixed cannot be claimed a copyright on. The differentiating factor from music and other forms of art and a photograph is the creativity involved in the art of curating and the art on one hand and merely fixing it on the other. I aint undermining the skill, judgment and creativity involved in fixing and clicking a photograph, rather am appreciating the intuitive technique and fixation involved in it which differs inherently from person to person.  The CopyKat is highly excited to see what the Supreme Court opines of the same.

VIDEOGAME COPYRIGHT INFRINGEMENT CASE RESOLVED

In the month of June 2018, Bethesda had brought in a copyright infringement suit over is videogame mobile title Fallout Shelter against Behavior Interactive and Warner Bros title Westworld. The main grounds alleged were based upon similar game design, art style, animations, features and other gameplay elements including various bugs being similar!! Notably even the source code in the resultant game was argued to be copied by Bethesda, claiming from an injunction from distribution and complete removal from the market. These allegations were completely denied then by Behavior Interactive. As reported by gamesindustry.biz, the dispute has amicably been resolved and the CopyKat can peacefully enjoy both these games now.

This CopyKat by our new intern, Akshat Agrawal. Thank you Akshat!