Is Every Orc an Author? On Rehearing, Judges Challenge 5-Second Copyright in Garcia v. Google

This article comes from the EFF website and is written by CORYNNE MCSHERRY

A panel of eleven Ninth Circuit federal judges heard oral arguments yesterday in Garcia v. Google, a copyright case arising from the notorious "Innocence of Muslims" video that was associated with violent protests around the world. The appellant, Cindy Lee Garcia, argues that she holds a copyright in her five-second performance in the video (a performance she says was tricked into giving), and is trying to use that claim to get the video pulled off the internet. To the shock of many, last February two Ninth Circuit judges agreed she might have a claim and ordered Google to remove the video from YouTube and prevent future uploads. Yesterday’s hearing revisited the facts and law that led to that decision. 

The judges grilled Garcia’s counsel on the question of copyrightability, challenging the notion that Garcia’s five-second performance could be a copyrightable work.  “Could any person who appeared in the battle scenes of the Lord of the Rings claim rights in the work?” asked Judge Margaret McKeown. And, she wondered, wasn’t this case really an issue of possible fraud, not copyright infringement?

Judge Alex Kozinski, however, suggested that the Beijing Treaty on Audiovisual Performances, which recognizes certain performance rights for actors, requires courts to recognize Ms. Garcia’s claimed copyright interest. However, the treaty is not yet in force, in the U.S. or anywhere else. In any event, as Google counsel explained, it is not clear that the treaty would create a copyright interest in a five-second performance that was part of a much longer work. Judge Kozinski also compared Ms. Garcia’s claim to a 1977 case involving a short performance by a “human cannonball.”

Google’s counsel stressed the burden on service providers and video-makers of recognizing a copyright interest in this case. If every person captured doing something creative on film could claim a copyright in it, service providers could find themselves flooded with takedown notices under the DMCA, resulting in the silencing of all kinds of lawful speech.  

Google’s counsel also attempted to keep the court focused on the preliminary injunction standard, which requires courts to deny the broad injunctive relief Garcia sought if the law does not “clearly favor” the legal claim. In this case, the overwhelming weight of case law (including a recent Ninth Circuit opinion) and even the Copyright Office clearly disfavors Garcia’s theory.  In our view, that, by itself, should have resolved the question.

Monday's hearing follows months of controversy. EFF and many other public interest groups have filed friend-of-the-court briefs in the case, noting (among other concerns) that actors generally do not have a copyright in their performances and that in any case neither Garcia nor the earlier opinion had justified a prior restraint of speech. We hope the Ninth Circuit quickly comes to the same conclusion and lifts the injunction.

Tis article is available on the EFF website at https://www.eff.org/deeplinks/2014/12/every-orc-author-rehearing-judges-challenge-5-second-copyright-garcia-v-google

The CopyKat: Google appeal the Innocence of The Muslims decision, fearing ongoing ramifications

The Dutch anti-piracy group, BREIN, has said that it will take its web-blocking efforts to the Supreme Court in the Netherlands, after the country's High Court overturned earlier blocks instigated against The Pirate Bay in 2012 - calling the blocks "ineffectual", the court also stated that the blockades "constitute an infringement of [people's] freedom to act at their discretion in an appeal brought by ISPs Ziggo and XS4All.


A member of U.S. Congress has introduced legislation aimed at ensuring that the Copyright Royalty Board also consider fair market value when setting songwriter mechanical royalty rates for digital services. The legislation was introduced by Rep. Doug Collins (R-GA), a member of the House Committee on the Judiciary, carrying the name the Songwriter Equity Act. It's purpose is to update provisions in sections 114 and 115 of the Copyright Act to level the playing field for songwriter, composers and publishers to receive fair compensation for the use of their intellectual property - and move towards parity with payments for the use of sound recording. More on Billboard here. 

Actor Hank Azaria has won a legal battle with Cinderella Man star Craig Bierko over a comical sports announcer they both insisted they had created. Azaria's character Jim Brockmire, a brash baseball anouncer, was portrayed by Azaria in the hugely successful FunnyorDie.com video which was a viral hit. Azaria claimed he created the Brockmire character as a party piece in the mid-1980s and only became aware of Bierko's similar creation when they met at a party through mutual friend Matthew Perry. In his ruling U.S. District Judge Gary Feess stated that Azaria had created character attributes and clothing, while Bierko's announcer was "extremely vague". Judge Feess added: "Defendant has offered no description of him other than that he is 'a white, male baseball announcer,' who expresses himself in a 'uniquely American and arguably musical' fashion." The judge also dismissed Bierko's claim that he and Azaria had an implied contract following a 1997 discussion, during which Azaria was told he couldn't use the character. 

one of the offending pendants - with attitude

Rapper Drake's efforts to have a lawsuit against him for producing copies of an owl pendant designed for him by claimants, the jeweller Baden Baden, dismissed have failed after an oral hearing. The motion to dismiss was based on the assertion that Baden Baden couldn't copyright the design because its source was in the public domain - namely, the Egyptian hieroglyph for the letter M, which dates back 5,000 years. Drake's lawyer also argued in the filing that Baden Baden offered no more proof of infringement than screenshots of other people wearing owl pendants without any evidence that Drake created or sold the alleged infringing pendants.  

President Obama has nominated Robert Holleyman as deputy US Trade Representative  - Holleyman was previously head of the Business Software Alliance (BSA) - a background which has raised some concerns , not least as the Trans Pacific Partnership Treaty remains under negotiation.  The TPP, the ambitious 12-nation free trade plan, recently hit a new roadblock after four days of negotiations in Singapore.

Cindy Lee Garcia: A still from YouTube before the take down

Whilst tonight's Oscars have grabbed almost all of the Hollywood headlines, there was an interesting and important copyright related news story after actress Cindy Lee Garcia persuaded the U.S. 9th Circuit Court of Appeals that she had rights to her performance in the 13-minute trailer for "Innocence of Muslims" which has been called "a crude piece of anti-Islamic agit-prop" and which has triggered Muslim outrage across the Middle East and northern Africa. One Egyptian cleric issued a fatwa calling for the death of every actor in it, and Garcia has received death threats. Garcia's victory prompted the Google owned YouTube to remove the trailer from YouTube but not without protest. In a ruling released this week, Chief Judge Alex Kozinski declared for a split three-judge panel that Garcia held a copyright in her performance despite appearing in only five seconds of the trailer, writing none of her own lines and even having part of her dialogue overdubbed by someone else meaning she can limit where her work will be publicly performed, and the court further agreed that America's First Amendment does not apply to copyright infringement cases.  The dissenting judge in the case, N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "An actor's performance, when fixed, is copyrightable if it evinces 'some minimal degree of creativity ... no matter how crude, humble or obvious it might be" adding  "That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all." Judge Kozinski did qualify the ruling adding that most actors and actresses would have given their (implied) consent to be filmed and for their performance to be used when they join a cast but not here: in this case Garcia had been hired  under false pretences. Writer and producer Mark Basseley Youssef had told the actress the part was in a desert adventure - called "Desert Warrior" and this untruth voided any implied licence. Corryne McSherry from the Electronic Frontier Foundation commented "Garcia is claiming a copyright interest in her brief performance, a novel theory and one that doesn't work well here. After all, Garcia herself admits she had no creative control over the movie, but simply performed the lines given to her. There may be a context where an actor could assert some species of authorship, but this doesn't seem to be one of them. Moviemakers of all kinds should be worried indeed." On Thursday Google filed an emergency motion that would allow it to keep the video available until a final decision is made on the copyright issue saying "Under the panel's rule, minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright claim".

And finally, the Guardian reports that artist, comedian and writer Miriam Elia is facing the potential of a copyright action from Penguin after she self published here own version of a 'Ladybird' Book - exploring modern art where the traditional characters of Mummy, Peter and Jane grapple with Tracey Emin-style conceptual art. One page, 'God Is Dead', depicts an empty room, in which Mummy introduces the children to a severe form of Nietzschean nihilism,  whilst  another page pokes fun at the giant inflatable animals that the artist and former Wall Street commodities broker Jeff Koons is famous for.  It seems that Penguin haven't been too heavy handed though - and  whilst We Go to the Gallery contains collages made from scenes cut from old Ladybird books, it also contains the artist's own work, and the company has told Elia that it would allow her one month to sell enough books to cover her costs, but any more have to be destroyed. Penguin contacted Elia last month to complain: "It was a bit of a shock. I never really thought about copyright," she said. "Artists just respond to the world in your little room and you're not thinking about much else. You just think: 'Oh, this will be great!". She stressed that Penguin has been sympathetic and has been open to negotiation, but ultimately would not back down on what it saw as infringement of its copyright. It's interesting to consider what difference will the new UK planned exception for parody and pastiche will add to this scenario - from this blogger's perspective certainly an arguable defence.

Not Laughing all the Way to the Banc?

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

Cindy Garcia in a scene from the trailer

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

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

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

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

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

The CopyKat - last Christmas you ......

As Eleonora reports over on theIPKat, Google has announced that it will be permanently shutting down the Spanish version of Google News, effective from December 16, 2014. The shutdown comes in direct response toamendments to the Spanish intellectual property law (Ley De Propiedad Intellectual) imposing a compulsory fee for the use of snippets of text to link to news articles, by online news aggregators that provide a search service. Google says its news service makes no profit and so hasd decided to pull the service out of Spain.  Richard Gingras, Head of Google News, said "[t]his new legislation requires every Spanish publication to charge services like Google News for showing even the smallest snippet from their publications, whether they want to or not. As Google News itself makes no money (we do not show any advertising on the site) this new approach is simply not sustainable."

Finland has decided to ditch copyright levies on digital devices. Instead a special government fund will be set up to compensate artists for private copying of music and movies. Following a Parliamentary  vote, Finnish MEP Henna Virkkunen said the new system would be “fairer to consumers and better better for artists because they will get more compensation this way”. Even Veronique Desbrosses, general manager of GESAC, which represents authors’ rights, agreed that increased compensation for artists was a positive element, saying “private copying compensation is part of the ecosystem and is essential”.

Chief Judge
Alex Kozinski 

With the eleven person en banc Ninth Circuit panel set to begin to re-hear arguments in Garcia v. Google case today in Pasadena, a number of Silicon Valley technology companies are amongst those resisting Cindy Lee Garcia's quest to "scrub the internet of her 5-second appearance in the controversial trailer for Innocence of the Muslims". Those against actors gaining a recognised copyright in their performances include Netflix, and the remaining amici range from law professors to news organizations, public interest groups to the Screen Actors Guild-American Federation of Television and Radio Artists—the last being the lone brief endorsing Garcia's copyright position. But interestingly no other major content owners from the film, TV or recorded music sectors have joined the battle: yes they want Google to take down infringing items - but no - they don't want performers and recording artists having any rights that might restrict their own commercial objectives. Google, the California Broadcasters Association and the American Civil Liberties Union all "foresee dire consequences if a U.S. appeals court doesn’t overturn a first-of-its-kind ruling" given by Chief Judge Alex Kozinski that gave actress Cindy Lee Garcia a copyright interest in her performance. Small filmmakers have also weighed in, backing Google; Jack Lerner, an assistant clinical professor at UC-Irvine School of Law, helped write an amicus brief on behalf of the International Documentary Film Association, other independent film groups and filmmakers including Morgan Spurlock, whose "Supersize Me" was nominated for an Academy Award. The California Broadcasters Association said that if the February ruling stands, it will open the floodgates to demands by minor players in movies for the removal of their performances from the Internet. More here.


Torrentfreak now reports that the Motion Picture Association Of America is now looking to secure web-blocks in the U.S without requiring new U.S. legislation. It seems having originally investigated how it might resurrect the web-block elements of SOPA/PIPA in Congress without causing so much controversy (which seems to have been a fanciful hope!)  - the MPAA has now opted for seeing if it can find a way to secure web-blocks in the American courts under existing laws, without requiring new legislation to be passed.

For the past three Decembers, a new musical tradition has been quietly taking root in the recorded music sector, stemming from the 2012 revision to European Union copyright law providing that sound recordings would be protected for an extended 70 years (rather than 50). But attached to that extension was a crucial proviso: in order to qualify for the extra 20 years of protection, the recordings had to be released within the first 50 years after they were made. Now Bob Dylan is said to be releasing a nine-LP box set of unreleased material from 1964, to keep the recordings from entering the public domain. The Beach Boys, The Byrds and The Kinks  are also due to release material although a number of websites noted that Universal Music is running out of time if it wants to reboot the copyright in any unreleased Beatles recordings from 1964. This time last year the major and the band's Apple Corps released 'The Beatles Bootleg Recordings 1963' onto iTunes. 

The one-time pirate website FilesTube has been officially "un-blocked" in the UK after relaunching itself as a licensed video aggregator. UK internet service providers were ordered to block their users from accessing  the site by the High Court in an action brought by record industry trade body the BPI in October last year. A relaunched Filestube is now as an aggregator of only legitimate content. and according to Torrentfreak, FilesTube's Poland-based operators had anticipated having to go the English High Court to get their domains unblocked, but the BPI had been monitoring the situation and voluntarily requested the block be removed. Indeed the BPI's General Counsel Kiaron Whitehead told TorrentFreak: "We are pleased that the block has encouraged FilesTube to change its business model so that it no longer appears to infringe music rights. Accordingly, we have agreed to un-block the site, which the ISPs will implement over the next few weeks. We hope that other sites which are subject to blocking orders will follow suit and help to support the development of legal digital entertainment".

Following on from our last blog and from TorrentFreak comes the opinion: "The Pirate Bay was taken offline in a police raid in Sweden. It may only have been the front-end load balancer that got captured, but it was still a critical box for the overall setup, even if all the other servers are running in random, hidden locations. Sure, The Pirate Bay was old and venerable, and quite far from up to date with today’s expectations on a website. That tells you so much more, when you consider it was consistently in the top 50 websites globally: if such a… badly maintained site can get to such a ranking, how abysmal mustn’t the copyright industry be?

Updates in the 'Innocence of the Muslims' copyright saga

We had already reported how Cindy Lee Garcia had persuaded a split panel of the U.S. 9th Circuit Court of Appeals that she had rights to her performance in the 13-minute trailer for "Innocence of Muslims" - the "crude piece of anti-Islamic agit-prop": Chief Judge Alex Kozinski held that Garcia held a copyright in her performance despite appearing in only five seconds of the trailer, writing none of her own lines and even having part of her dialogue overdubbed by someone else. The dissenting judge in the case, N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "An actor's performance, when fixed, is copyrightable if it evinces some minimal degree of creativity ... no matter how crude, humble or obvious it might be".  The video was taken down from YouTube - under protest. Now the Hollywood Reporter, amongst others, has revealed some updates in the case:

-  Almost immediately after the ruling, Google filed an emergency motion to stay the order pending a rehearing en banc saying "Under the panel's rule, minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright claim". Judge Kozinski denied the motion, but in a rare move "that illustrates the tensions this decision has wrought" another 9th Circuit judge made a sua sponte request to have the Circuit reconsider the stay.

-  Facebook, Twitter, IAC and Pinterest have all requested permission to file an amicus brief supporting Google's position.

 - and media groups and publishers including The New York Times, Washington Post and the Los Angeles Times are also weighed in to support Google.

-  It also transpired that Garcia has been trying to register as the sole author of a "dramatic performance fixed in tangible medium of expression" at the U.S. Copyright Office. In December, 2012, the chief of the performing arts division at the Copyright Office indicated that the registration would be refused because a "motion picture is a single integrated work."; On March 6, the Director of Registration Policy and Practices wrote a letter to Garcia's lawyer firmly refusing registration and noting how the Copyright Office's "longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.

It seems the sequel is set to open soon!

The CopyKat: mirror mirror on the wall - who has the biggest banana of them all?

A federal judge has dismissed lawsuit filed by Arrow Productions, the owner of the copyright in the 1972 iconic porn movie “Deep Throat”. The case was brought against The Weinstein Co, the company that produced the biographical 2013 movie “Lovelace” which looked  look at the life of Linda Lovelace, star of “Deep Throat”. According to Arrow the 2013 film recreated three scenes “word for word, positioned the actors identically or nearly identically, recreated camera angles and lighting and reproduced costumes and settings” from the original film.  U.S. District Judge Thomas Griesa said that the movie was “entitled to a presumption of fair use,” concluding that its use of the three scenes from “Deep Throat” added a “new, critical perspective on the life of Linda Lovelace and the production of ‘Deep Throat.". The judge also dismissed trade mark claims.

TiVo has announced that it is releasing a new product - the “Roamio Over-the-Air [OTA] DVR”) that will allow customers who don’t have cable/satellite service to record, store, and playback over-the-air television programming (provided they have an HD digital antenna pulling in the signals). Now what does that remind the CopyKat of - ohhhhhh yes - the Aereo service that the Supreme Court declared to be infringing  in June. However the key difference is that this is a customer's box - allowing customers to record programmes where they already had free access, and to play those recordings back to themselves - rather like a video recorder - and that of course reminds us of of that classic 1984 (split 5-4) Supreme Court decision in Sony v. Universal which found that  manufacturers of home video player/recorder devices such as Betamax or other VCRs could not  be liable for infringement - overturning the The United States Court of Appeals for the Ninth Circuit which had found the manufacturers of betamax manchines liable for contributory infringement. But will the content and broadcast sectors see it that way?

The head of the Serbian actors’ association, Nikola Djuricko, has said that actors will demand amendments to the copyright law that would extend legal protection on artists whose performance is visual and not just an audio recording (Article 117 of the Serbian Law on Copyright and Related Rights states that performers are entitled to remuneration for the performances published “on a sound carrier”). 

Maslen & Mehra's work

Australian artists Tim Maslen and Jennifer Mehra have issued a legal challenge to the BBC. alleging that a BBC TV promotion for a World War One program infringes their copyright in their 'mirror soldier' artwork. Mehra and Maslen cut silhouette figures from mirrors and then place these mirror people in a landscape and film them with a moving camera. The result is "a interplay between the background and the landscape which is reflected in the mirrors. As the camera shifts, the mirror figures seem to blend with, and then emerge from, the background". ABC explains that the BBC promotion uses the same device but the BBC write to the artists saying ‘the team who worked on this project were not previously aware of your work. With regards to the image itself, the idea was conceived by the creative team at Karmarama, an advertising agency, and brought to life through a commissioned artist and a bespoke shoot. Everything has been created from scratch for this campaign.’  If this gets to court it will be interesting to see what might transpire ......... and it's worth noting that Judge (now Mr Justice) Birss did find infringement in the so-called Red Bus Case (Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1) where a picture of a red bus travelling over a monochrome Westminster Bridge and Houses of Parliement against a white sky had been 're-created' (but not copied) by New English Teas for packaging. Image from MyModernMet.

The International Business Times tells us about Getty Images, whose 'settlement demand letters' - sent to those who the image licensing copany have discovered have used their 80 million images without permission - are often accused of being close to mimicking the behaviour of copyright trolls. Well, Getty has had a nasty shock. Getty's Picscout software picked up an unlicensed image it thought was on the website of of  the Schneider Rothman IP Law Group, a Florida law firm (who specialise in copyright litigation). Getty wanted a $380 licensing fee for a photo of a woman texting and driving, which Getty claimed, was being used on the firm’s website without permission. The law firm pointed out that it never displayed the Getty-owned image on its website. Rather, the image was syndicated through a plugin operated by Zemanta Inc., a software company that provides third-party content.  Getty have now admitted its error and that it had closed its claim against the law firm - but not before the law firm issued its own legal proceedings alleging  “unfair and deceptive business practices.” The law firm is seeking a court declaration that no infringement was committed and an injunction against Getty to stop it from demanding payment where no infringement exists.  

The Hollywood Reporter tells us that Sirius XM could be on the verge of fending off the first major challenge in an ongoing lawsuit brought by major record labels over its royalty-free broadcasting of pre-1972 music (which of course includes a wide repertoire including classic rock n roll and tracks from the likes to Bob Dylan, The Beatles and the Rolling Stones). Los Angeles Superior Court Judge Mary Strobel has indicated that she was leaning towards rejecting a motion by Warner, Universal, Sony, Capitol and ABKCO Records to accept the labels' interpretation of the law in jury instructions. The plaintiffs believe that state laws protect the misappropriation of older sound recordings that were authored before falling under federal copyright protection. But the judge isn't ready to go so far and has indicated that she feels the label's may be relying on inappropriate case law. This lawsuit is just one of a number of actions against the broadcaster - which include the class action led by Flo & Eddie of the Turtles in which the band behind "Happy Together" contends that state law protects pre-'72 music and the broadcaster can't rely on statutory royalty rates for the recordings - and the claim from collection society SoundExchange claiming Sirius XM underpaid federal royalties for pre-'72 tunes. And Sirius have had a second dose of good news on that front: U.S. District Judge Richard J. Leon in the District of Columbia has approved the Sirius' motion to stay the lawsuit from SoundExchange to await the decision of a hearing with the federal Copyright Royalty Board - the body that sets the statutory rates that Sirius XM must pay - and if these can include revenues purportedly attributable to performances of pre-1972 sound recordings."

Banana Lady

We had previously reported how Cindy Lee Garcia had persuaded a split panel of the U.S. 9th Circuit Court of Appeals that she had rights to her performance in the 13-minute trailer for "Innocence of Muslims".  Chief Judge Alex Kozinski held that Garcia held a copyright in her performance despite appearing in only five seconds of the trailer, writing none of her own lines and even having part of her dialogue overdubbed by someone else. The dissenting judge in the case, N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "An actor's performance, when fixed, is copyrightable if it evinces some minimal degree of creativity ... no matter how crude, humble or obvious it might be".  The Garcia case is clearly unusual, as Judge Kozinski acknowledged. Actors don’t own copyrights in their performances in Hollywood films — not least as film contracts clearly specify each person’s rights. In Garcia’s case, there was no contract, and thus the unusual (“rarely litigated”) issue arose of whether she had a copyright in her performance. Having over turned the trial judge and with a dissenting justice in the appellate court, the Garcia decision is currently awaiting possible rehearing by the Ninth Circuit en banc, and is somewhat controversial. But now we have a second and seemingly conflicting decision in the Banana Lady suit - an action brought by Catherine Conrad, a/k/a the “Banana Lady,” who puts on private performances while wearing a costume in the shape of a giant banana. The case of Conrad v. AM Community Credit Union reached the U.S. Court of Appeals for the Seventh Circuit after photos and videos of her performance were posted to the Internet after a performance at a credit union trade association event - despite her desire to forbid this.  The appeals court unanimously rejected her claim (one of many she has brought, some seemingly frivolous) and in a decision written by Judge Richard Posner the court held that Conrad’s performance “was not copyrighted or even copyrightable,” since it wasn’t fixed in a tangible medium. And because the videos taken by members of the audience merely portrayed non-copyrightable material, they didn’t infringe her rights. Conrad also alleged that the event organiser was contractually obligated to prohibit posting of videos of her performance — but the organiser showed that they did make an announcement announcement and so had not induced any copyright violations. The decision affirmed the federal court in Winconsin:  "if you dance around in a giant banana costume at a public event, you cannot restrict people from posting pictures of you doing so under the auspices of copyright infringement." 

Sun, Sunburn, Sex and Selfies

You may have heard of “sunburn art” which seems to be the latest selfie trend. One can place pieces of (artfully) cut cardboard onto one’s skin to shield body parts from the sun, and then hit la playa sans sunscreen. At the end of the day, voilà!, #sunburnart is posted on social media. One can also use sunscreen to design lighter shaded areas on the body, while the unprotected skin takes a nice lobster color. Indeed, while #sunburnart selfies will not send a piece of art tumbling down, they nevertheless come with risks, ranging from potential online embarrassment to skin cancer.

#SunBurnArt As Dumb Trend

This is a social media trend, and some of the sunburn “art” is not much to look at, but some patterns created on the skin are certainly original enough to be protected by copyright. Under U.S. law, sunburn art can be protected by copyright if it is original enough and if it is fixed. While a tan is ephemeral (although the sun damage is permanent), it is fixed by the selfies, and may thus be protected by copyright. One can imagine a copyright infringement suit filed by someone claiming that a “selfieccionado” has ripped off his #sunburnart, although I hope never have to read this complaint, at least, not before cocktail hour.

#SunBurnArt as Performance Art

Because #sunburnart is potentially dangerous to one’s health, and as some of the patterns are quite original, one could consider some of these selfies as performance art on social media (oh yeah!).

Performance artists often put their health, even their lives, in jeopardy when using their bodies to create a performance. In the 1971, performance artist Chris Burden had a friend shoot him in the arm with a gun for the performance Shoot. The same year, Gina Pane climbed a ladder, which steps bore razor blades, to create L’Escalade. Three years later, Chris Burden was nailed on a Volkswagen “bug” car, which was pushed out of a garage, where the artist stayed for two minutes to create Trans-fixed. For Rhythm 0, created in 1974 in Italy, Marina Abramović placed 72 objects on a table, including a gun, a bullet, nails, a whip, a pocket knife and, yes, a band aid and alcohol, which the audience could use as they wished  on her body. Innocuous, even potentially pleasant objects, such as perfume, water, or a coat, were also available to be used. However, the artist ended up covered in blood.

These performances were all recorded, albeit not on selfies, and thus are protected by copyright in the U.S., which protects works only if fixed in a tangible medium. However, a performance artist wishing to be the sole right holder should make sure that the person photographing or recording the performance cannot claim the status of a co-author. Also, that fixation must be done “by or under the authority of the author.” This was reinforced recently by the 9^th Circuit en banc in Garcia v. Google, where the court noted that actress Cindy Garcia could not claim copyright in her performance, because, among many other reasons, she had not fixed her performance herself (see p. 16).

In France, the Paris Court of Appeals held in 2004 that the photographer who had taken pictures of the Première Tentative de rapport avec un chef-d’œuvre performance created by Alberto Sorbelli, dressed as a female prostitute, at the Louvre Museum in front of the Mona Lisa, was only the co-author of the work, along with Mr. Sorbeli, who had filed a copyright infringement suit after pictures of his performance had been published without his authorization and using a different title. Interestingly, Mr. Sorbelli had also claimed a violation of his right to his image, and this claim was also successful.

Performance Art and Nudity, Oh Là Là!

Let’s stay in France, where performance artist Milo Moiré was arrested this month in Paris for public exposure, putting a stop to her performance piece wherein she asked delighted tourists to take selfies with her, stark naked, in front of the Eiffel Tower. Indeed, even though the French have generally a laissez-faire attitude about nudity, “sexual exhibition imposed on the sight of others in a place accessible to the public” is incriminated by article 222-32 of the criminal Code and is punishable by one year imprisonment and a 15,000 Euro fine. It isnot nudity per se which is incriminated, but sexual exhibition, and the French courts consider what was the intention of the person who exhibited herself to judge whether a particular public nudity is indeed a sexual exhibition. The artnet news article (see above) notes that “nudity is normally tolerated [in France] if it is part of a performance. The arrest indicates that France does not view her as a legitimate artist.” It is probable that the police officers who arrested Ms. Moiré could not assess on the spot whether her public nudity was or was not sexual exhibition, especially because she encouraged contact with members of the public. Ms. Moiré was not charged, but if she had to face trial, her lawyer would probably would be successful in arguing that, because her public nudity was part of her artistic performance, the facts lack the moral element of “exhibition” and thus cannot be incriminated.

Let’s all have a fun and safe summer!

Image courtesy of Flickr user Classic Film under a CC BY-NC 2.0 license.

Never mind the moral squalor .... its the CopyKat

AT&T has started sending letters to some of its customers, threatening to disconnect them because they've been accused ("without trial or a chance to rebut the evidence") of copyright infringement. AT&T is doing this voluntarily as part of the controversial Copyright Alert System, whose overseeing body is The Center for Copyright Information. You can see the letter here.

Former US presidential hopeful, 'hockey mum' and former Governor of Alaska Sarah Palin is facing a copyright claim: the North Jersey Media Group have filed a law suit against Palin and her political action committee (PAC), alleging copyright infringement over the use of an iconic photograph of a flag at Ground Zero taken by one of their newspaper photographers on the politician's website and Facebook pages. In the photo, three fireman raise an American flag over the debris of the World Trade Center towers - and appeared on Palin's PAC’s website and Facebook page under the words “We Will Never Forget” though  it seems the image is no longer on either site

Mike Weatherley MP

In the UK, Mike Weatherley, the MP for Hove, and organiser of the annual 'Rock The House' talent competition, has been appointed as the Prime Minister's Adviser on Intellectual Property, with a particular focus on "enforcement issues relating to the creative industries".  Mike comes from a strong professional background in Intellectual Property for both music and film. Before his election to Parliament in 2010, Mike was the Vice President (Europe) for the Motion Picture Licensing Company and previously worked for music industry giant Pete Waterman. And this blogger can confirm from personal experience that Mike is a big music fan - cares about the creative industries - is a very approachable MP - actually knows something about IP - and is happy to help when he thinks he can make a difference.

It seems that Liberation Music has belatedly realized it chose the wrong adversary in Lawrence Lessig for a copyright dispute. Citing the need to protect a copyrighted song, the company had sought to block the work of Harvard law professor Lessig, after he posted a lecture that included amateur videos using the song  “Lisztomania,” by the band Phoenix on YouTube, to demonstrate how individuals can create new content by blending homemade videos with popular music.  

After a YouTube take down, reinstatement and now the claim being withdrawn, one wonders why this was ever even started: I have to say "Fair use" springs to mind - as does "Egg on faces" at the record label. And what of the recording artist - the now very successful French band Phoenix comprising of Thomas Mars, Deck d'Arcy, Christian Mazzalai and Laurent Brancowitz? It would be interesting to get their take on what their record label have been up to, not least as despite Liberation dropping it's claim, Lessig, aided by the Electronic Freedom Foundation, still plans to fight the takedown in US District Court in Boston, where Liberation Music had filed the complaint.

Philip Pullman

His Dark Materials author Philip Pullman has said that illegal downloading is a kind of "moral squalor" and copyright theft is much as reaching in to someone's pocket and stealing their wallet is theft, saying that authors and musicians work in poverty and obscurity for years to bring their work to the level "that gives delight to their audiences, and as soon as they achieve that, the possibility of making a living from it is taken away from them". In an article in the Index on Censorship he says that it is outrageous that anyone can steal an artist's work and get away with it" and adds "The principle is simple, and unaltered by technology, science, or magic: if we want to enjoy the work that someone does, we should pay for it"
Pullman is president of the Society of Authors and in the article Cathy Casserly, chief executive of Creative Commons, responds on the place of copyright in the digital age.

The US film industry has welcomed a paper published by the Phoenix Center for Advanced Legal & Economic Public Policy Studies which questions earlier research that claimed that the shutdown of MegaUpload had had a detrimental effect on smaller independent film releases.
That research, from the University Of Munich and the Copenhagen Business School claimed that while the closure of MegaUpload had contributed to a slight increase in revenues for blockbuster movies, mid-sized films had probably lost out, because file-transfer sites enabled peer-to-peer promotion of films that couldn't afford massive advertising campaigns, and that could result in more tickets sold at the cinema. Now Dr George Ford of the Phoenix Center has suggested that the Munich and Copenhagen academics reached that conclusion because of "a poorly-designed statistical model" and a misunderstanding of the economics of the film industry. The study, therefore, Ford reckons, "adds nothing constructive to the debate - save a little excitement". Motion Picture Association of America comment here.

And finally, music creators and performers - and others - might find this article by  Kristelia Garcia of interest - How Private Copyright Deals Are Cutting Artists Out...: Ms Garcia is a Visiting Fellow at Yale Law School, and a Visiting Associate Professor at George Washington Law School, and is also a former executive at both MySpace Music and Universal Music Group: the article reflects on the recent flurry of direct deals between record labels and/or music publishers with broadcasters in the USA - and the potential problems being faced by both the music collection societies - and composers, writers, performers and recording artists when labels and publishers 'deal direct'.

2015 - THE COPYRIGHT YEAR

2015 - It's been another busy copyright year! Pre-1972 sound recordings, the copyright in performances and protecting a 'vibe' in the USA, as well as the art of photography in France, web blocking in Australia, a failed private copying exception in the United Kingdom all featured on the 1709 copyright blog, along with topics such as the Trans Pacific Partnership Agreement and the ensuing changes in countries such as Canada and New Zealand, and the reform of copyright law, both in the U.S. and Europe. These, and many more updates, regularly made our headlines - and here's just a brief and somewhat personal account of who said what to whom and why they did. The carve up of the 'digital pie' by the music industry was another recurring theme, as were culinary recipes and all things food, along with the hot topic of the definition of  'communication to the public' and what this actually means - which seemed to leave the Court of Justice of the European Union clutching at ever more complicated and ever more common sense defying decisions when looking at online linking. Well to the man on the Clapham omnibus anyway. 

The year began with one of those topics that featured on a regular basis throughout 2015: 60s pop band the Turtles' ongoing battle with Sirius XM to get paid royalties for the use of their pre-1972 sound recordings such as 'Happy Together": In January a New York federal judge largely dismissed Sirius XM’s request to reconsider her 2014 decision in favour of members of the band over the payment of royalties for recordings made before 1972. U.S. District Judge Colleen McMahon rejected Sirius’ arguments that Flo & Eddie Inc, controlled by founding band members Howard Kaylan and Mark Volman, did not own copyrights in The Turtles’ recordings or that Sirius had an “implied” license to play Turtles' songs. Judge McMahon did, however, agree with the New York-based satellite radio company that Flo & Eddie could recover damages for copyright infringement only for the three years before it sued on Aug. 16, 2013, not six years as she had previously suggested. Also in the US, the 9th Circuit Court of Appeals ruled that watchmaker Omega's attempt to use copyright laws to block the sale of Omega watches at discounted prices by Costco will just not work - because of the 'first sale' doctrine' - and that Omega's action was also a misuse of copyright. In Europe, The Court of Justice of the European Union ruled that the consent of a copyright holder does not cover the distribution of an object incorporating a work where that object has been altered after its initial marketing to such an extent that it constitutes a new reproduction of that work (Case C‑419/13, Art & Allposters International BV v Stichting Pictoright) with Eleonora opining that the decision means that that there is no such thing as a general principle of digital exhaustion under the InfoSoc Directive. Another thread that ran through to the close of the year was the harmonisation of copyright in the European Union: The European Copyright Society (ECS) said in a letter to the European Commission's digital commissioner Günther Oettinger, that the "actual Union-wide unification of copyright", as opposed to simply further harmonising the existing EU copyright regime, would have "several major advantages" saying "While copyright unification may be considered undesirable, or perhaps too drastic, by certain stakeholders and national legislatures, this is in our opinion the only way a fully functioning digital single market for copyright-based goods and services can ultimately be achieved. It is in fact the logical next step for the EU legislature to take in this field" and "a European copyright law would establish a truly unified legal framework, replacing the multitude of often opaque and sometimes conflicting national rules that presently exists. Mr Oettinger seemingly agreed as he had previously expressed his preference for "uniform rules" on copyright to apply across the European Union.

In February, Swedish songwriters joined their UK counterparts in criticising the way in which revenues from the digital streaming pie are currently shared out, pointing out the unfair and unsustainable way in which royalties stemming from streaming services are being shared between different stakeholders - in particular the large share taken by record labels on their own behalf, and on behalf of recording artistes, leaves little for music publishers and songwriters. The U.S. Copyright Office released a comprehensive study, “Copyright and the Music Marketplace” detailing the ageing music licensing framework as well as the ever-evolving needs of those who create and invest in music in the twenty-first century. In addition to providing an exhaustive review of the existing system, the report made a number of recommendations that would bring both clarity and relief to songwriters, artists, publishers, record labels, and digital delivery services. Also in the USA, Andrus Nomm, a 36 year old Estonian who lives in the Netherlands, and one of a small group of ex MegaUpload staffers who are facing extradition to the US for involvement in the running of the controversial file-transfer company, pleaded guilty to criminal copyright infringement charges was been sentenced to a year and a day in a US prison. Nomm pleaded guilty in US District Court for the Eastern District of Virginia to conspiracy to commit felony copyright infringement.  A New York federal judge agreed to certify an interlocutory appeal by SiriusXM against the ruling that gave state copyright law protection to pre-1972 sound recordings.  As a result, the 2nd Circuit would now address the legal issue that copyrights in pre-1972 sound recordings didn't cover the right to exclusive public performance - a position successfully challenged by Turtle's musicians Flo & Eddie who filed filed 2013 lawsuits in California, Florida and New York. In one of a number of 'food' cases this year, A federal judge told a Cleveland restaurateur that food recipes can't be protected by copyright law: Judge Patricia A Gaughan said: "The identification of ingredients necessary for the preparation of food is a statement of facts. There is no expressive element deserving copyright protection in each listing. Thus, recipes are functional directions for achieving a result and are excluded from copyright protection under 17 U.S.C. 102(b)" adding for good measure "Certainly plaintiffs cannot be suggesting that somehow the copyright prevents defendants from serving chicken salad sandwiches". And the French civil Supreme Court, the Cour de Cassation, held that a corporation cannot be the author of a work protected by copyright: “une personne morale ne peut avoir la qualité d’auteur.” The case is Cass. Civ. 1ère, No. 13-23566.

March was all about the 'Blurred Lines' in copyright and a US Jury's decision to award $7.3 million to the Estate of Marvin Gaye on the basis that Pharrell Williams and Robin Thicke’s soul-inspired pop song "Blurred Lines" too closely mirrored Gaye’s 1977 single "Got to Give It Up". It's no secret that this writer believes the decision to be fundamentally wrong: whilst the recordings share a very similar 'vibe' - the songs are quite different - and this case was all about the alleged copying of a song. Grammy winner John Legend was one of many in the creative industries concerned that the  verdict could set a worying precedent for artists creating music inspired by others. Howard E King, The lawyer for Thicke, WIlliams and co-writer rapper TI, said the decision set a "horrible precedent for music and creativity going forward". An appeal followed later in the year. The IP Court of Venice held that a work created by a lawyer for their client in the provision of legal services was protected by copyright law. The court found that the piece in question, a review of anti-counterfeit regulations, “possesses a creative quality, epitomised by originality and novelty” because the work was "“the result of a personal, original, new and creative elaboration of legal concepts and industry practices and of the experiences of the author”. Pirate Party MEP Julia Reda, who was then leading the European Parliaments review into the harmonisation of EU copyright law, highlighted her view that geo-blocking within the EU was a threat to European culture. Would she be successful in promoting her view? Readers should now know the answer but scroll down if you don't! The European Parliament's shadow rapporteur Dietmar Köster said "The reform of copyright also concerns linguistic precision - a distinction should be made between Anglo-American copyright and continental European authors' rights. With copyright exploitation rights not necessary reserved for the creator". WikiLeaks released  the "Investment Chapter" from the secret negotiations for the TPP (Trans-Pacific Partnership) agreement. The document added to the previous WikiLeaks publications of the chapters for Intellectual Property Rights (November 2013) and the Environment (January 2014). And finally Eleonora updated on the CJEU's decision in Case C-279/13 C More Entertainment where the CJEU said that live broadcasts are not communication to the public within InfoSoc Directive, but Member States can protect them: "[The Information Society] [D]irective provides that broadcasting organizations may prohibit the provision to the public fixations of their broadcasts, so that everyone can access them from a place and at a time chosen individually." 

April began with an ominous warning for online music streaming service Grooveshark when a US judge ruled ahead of a trial that Grooveshark's copyright violations on nearly 5,000 songs were "wilful" and made "in bad faith." In September 2014 U.S. District Judge Thomas Griesa ruled that Grooveshark's parent company, Escape, and its founders, Samuel Tarantino and Joshua Greenberg, were liable for the illegal uploads of thousands of recordings. In Russia, owners of 'pirate' sites were given a final warning by the government. that amendments to the countries copyright law which would come into force May 1st would not only protect more content than ever before, but also contain provisions to "permanently block sites that continually make unauthorized content available. And HBO blamed Periscope for facilitating mass copyright infringement after four episodes of the new series of Game of Thrones were leaked and widely shared using the service.  Creators from all creative sectors and geographic regions addressed the perceived shortcomings of Pirate Party MEP Julia Reda's draft report on the adaptation of the Copyright Directive.  As the life of the current UK Parliament ended, it was announced that Mike Weatherley MP was stepping down as a Member of Parliament, but Mike published a final Discussion Paper on copyright. Safe harbour provisions and online service providers which concluded "It does appear to me that the scope of the E-Commerce Directive today is much broader than was envisaged at the time by those drafting it. I would urge the next UK Government to enter into a dialogue with the Digital Single Market team at the EU Commission with a view to considering whether the balance remains fit for purpose." Our (then) newest blogger Andy Johnstone gave us the first of his interesting updates on orphan works in the UK which showed that  at the end of the first six months of the Orphan Works Register, a total of 263 works have been subject to applications for a licence, with 220 licences having been granted. The vast majority of applications (215) were for still images, of which 202 concerned photographs and the remainder for paintings. The next highest area of interest was written works, with 34 applications, and 19 licences granted. Fourteen sound recordings have been subject to applications, but so far no licences had been granted in that category. Trailing way behind in popularity were scripts and choreographic works (1 application awaiting further information), musical notation (1 licence granted) and moving images (no applications). And finally in April we reported on the slightly confusing headline "Woman forced to copyright breasts to fight revenge porn" in our article Revenge porn - the need to legislate between privacy and copyright? which concluded that whilst it may be useful in certain circumstances, copyright was not the best tool to protect privacy. Marie-Andrée Weiss added to this with her article Right of Publicity and Freedom of Speech Clash in Manhattan. 

Jimi Hendrix by Gered Mankowitz

May May May: The month began with the news that the music-sharing service Grooveshark had shut down after 10 years. A full eleven strong panel ('en banc') of judges of the Ninth Circuit reversed the earlier (and somewhat controversial) decision of the Appeals Court in Garcia v Google now denying Cindy Garcia any copyright in her acting performance. What's more the court was fairly critical of Judge Alex Kozinski's earlier decision. In particular they were critical of Kozinski's readiness to grant an injunction against Google, despite the fact that this action appears to have constituted prior restraint contrary to the First Amendment. Kozinski, who was also one of the eleven en banc panel of judges, did not take this criticism with a shrug of the shoulders, but instead launched into a robustly worded dissent. Also in the US, the Obama administration sided against Google and said the U.S. Supreme Court should not hear the company's appeal in a case against Oracle, in a case which had wide implications for the technology industry. The case involved how far copyright protection could extend to Java programming language.  In a new case for Sherlock Holmes we reported on yet another attempt by the Estate of Sir Arthur Conan Doyle, author of the Sherlock Holmes detective dramas, to protect the character of Sherlock Holmes, this time claiming that the plot of the new film "Mr Holmes" infringes on the Conan Doyle's short story, "The Adventure of the Blanched Soldier" published in 1926 in Strand magazine. This claim seemed to have more legs than previous ill judged attempts to protect the characters of Holmes and Watson, as this case reflected on similarities between the new film and the book it is based on,  "A Slight Trick of the Mind" by Mitch Cullins, and later (and still copyrighted) works by Conan Doyle. US District Judge Philip Gutierrez sitting in California allowed a class action lawsuit to proceed against satellite-radio company Sirius XM Holdings Inc over the payment of royalties for pre-1972 tracks. The US National Music Publishers' Association (NMPA) filed a lawsuit in the US District Court for the Southern District of New York, alleging copyright infringement against Wolfgang’s Vault, which hosts many thousands of hours of live concert recordings which it disseminates on websites such as YouTube, Music Vault, Concert Vault and Daytrotter. The NMPA claims the online live concert audio and video platform does not have proper licensing in place for the content it hosts. The NMPA says "Hopefully, this lawsuit will bring publishers and many iconic songwriters the revenue they deserve for the use of their music.” And finally and in a decision that certainly alarmed the photographic community,  the Paris Tribunal de Grande Instance ruled that a iconic photograph of Jimi Hendrix taken in, with Hendrix 1967 wearing a military jacket, holding a cigarette and puffing a cloud of smoke while looking at photographer Gered Mankowitz, lacked the originality necessary for its protection by French law, and that “the failure of the description of the characteristic elements of the alleged originality also constitutes a violation of the principle of defence rights.” The TGI thus concluded that Mr. Mankowitz had no intellectual property rights over the photograph. Marie-Andrée  opined that, as such, this ruling should give pause to French IP practitioners defending the rights of a photographer, as they must now prove why the author chose the different elements of a photograph and how these choices reflect his personality in such a way that the work is original. However, the case will be appealed, and so the debate on what is an original work, and how to prove, it is still ongoing in France.

Those Turtles

In June in Australia, Green party senator Scott Ludlam branded the government’s controversial website blocking bill a "lazy and dangerous" piece of legislation that wouldn’t be happening if the Labor government “hadn’t gone completely missing". The Australian Parliament had begun debating the Copyright Amendment (Online infringement) Bill 2015 which would enable rights holders to apply to the Federal Court for an injunction to force ISPs to block its customers from accessing a website. The legislation was enacted. China's Sword Campaign - the now annual nationwide special enforcement crackdown on online piracy and copyright infringement - began. The campaign is jointly operated by the National Copyright Administration of China (NCAC), Ministry of Industry and Information Technology (MIIT), Ministry of Public Security (MPS) and Cyberspace Administration of China (CAC). In 2015 the campaign focussed on music, film and TV, online literature and mobile applications. In London the  British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music successfully challenged the UK Government's new exception to copyright for private copying. In BASCA v Secretary of State for Business, Innovation and Skills the High Court agreed the October 2014 regulations were unlawful because the decision not to provide fair compensation was based on wholly inadequate evidence.  Whilst the music industry welcomed the move, and to this blogger it is certainly a correct interpretation of the law, the decision was widely criticised as being simply out of touch with the reality of what consumers actually do. A pyrrhic victory at best.  Ongoing EU copyright reform prompted Andy to ponder on the 'Freedom of Panorama' and the quite different approaches taken in member states as to whether a photographer, videographer or artist may freely record and then exploit images of sculptures or buildings which are visible in public places, And what of those reforms? Following a vote by the European Parliament’s Legal Affairs Committee, the amended version of its report on the implementation of the EU’s 2001 InfoSoc/Copyright Directive went forward for for a vote a by the full European Parliament in July and the revised draft report (amongst other things) called for: an impact assessment in relation to any single European copyright title proposal;  looking at issues arising from geo-blocking of access to certain content services within the EU; mandatory adoption of some copyright exceptions and limitations - whilst recognising that some difference may be justified on the grounds of specific cultural and economic interests; an assessment of proposed new exceptions to allow (for example) libraries to lend e-books; and text and data mining; and revisiting 'safe harvour' provisions. US satellite broadcaster Sirius XM had a mixed month. SiriusXM won a rare victory in Florida over its use of pre-1972 recorded music in the satellite radio broadcasters' ongoing battle with Flo & Eddie. Judge Darrin Gayles decided to rule in favor of SiriusXM's summary judgment motion. The judge said he understood why his judicial colleagues in other states had ruled differently, noting that California and New York are creative centres of culture, and laws have been enacted there to protect artistic rights, and there have been prior cases that have touched upon the present controversy. But Judge Gayle said that "Florida is different"  saying "There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts." But that was the last of the 'good' news. As the month ended Sirius reached a settlement with the three major record labels  over that long-rumbling pre-1972 copyright dispute in the US. The recording Industry Association of America (RIAA) claim settlement also includes ABKCO – the owner of classic Rolling Stones copyrights – and the claimants were awarded $210m as part of a settlement with Sirius. In a statement, Sirius said: “The settlement resolves all past claims as to our use of pre-1972 recordings owned or controlled by the plaintiffs and enables us, without any additional payment, to reproduce, perform and broadcast such recordings in the United States through December 31, 2017.

In July, the month started with what looked like the makings of a PR disaster for Universal and Prince in the 'Dancing Toddler' case - which revolved around a twenty second home movie featuring a toddler dancing to Prince's "Lets Go Crazy" which Universal Music forced off YouTube back in 2007. As the case reached the Ninth Circuit Court of Appeals, US Circuit Judge Milan Smith said somewhat ominously that the concept of fair use is an integral part of the language of the DMCA, criticising the music company saying: "I struggle with how anyone looking at this from Universal's perspective would doubt that little children playing and dancing around to music by the artist known as Prince could view it as anything other than a fair use." The Estate of the Nazi propaganda minister Joseph Goebbels won its lawsuit against Random House publishing company over claims that a new biography by Peter Longerich, Professor of Modern German History at Royal Holloway College at the University of London, which quoted extensively from Goebbels' diaries, infringed the rights of Goebbel's heirs. Goebbels committed suicide in May 1945 and his work will enter the public domain on the 1st January 2016. The UK's Intellectual Property Office (IPO) released data that showed that the number of UK consumers accessing digital content through legal download or streaming platforms has risen 10% since 2013 - but that one in five consumers continued  to access music, movie, TV or gaming goodies from unlicensed sources online. The IPO survey says that 15.6 million UK internet users now access music online, with twelve million streaming and 10.5 million downloading. Spotify and Amazon were amongst the most used streaming music platforms in the UK, but 54% of online music was consumed via YouTube - which whilst a licensed service certainly for songs via its licence with PRS for Music - is not seen as a primary revenue source by record labels and music publishers as it still relies on safe harbour provisions to function - without the need to obtain licences from record labels and others. The IPO also launched a consultation on whether the maximum term of imprisonment for online criminal infringement should be raised from the current 2 years to a maximum of 10 years. In China. the the National Copyright Administration updated its policies on music streaming, updating saying online streaming services must stop providing unlicensed music to users. Service providers were required to remove unlicensed music by the end of July . The NCA said in a statement that the move was in line with China's copyright law and regulations. The NCA said those who do not follow the order would be 'seriously punished'. In Japan,  negotiators moved to cancel wartime copyright extensions in favour of the USA as part of Trans-Pacific Partnership multilateral free trade talks. In talks with the United States, Japan is demanding that the special post WWII arrangements be scrapped if the period of protection for copyrighted works were extended under the TPP. Like many others, the CopyKat questioned USA's position in seeking greater copyright protection and terms, but not seeking to extend the wide protection of U.S. "fair use" to other signatory jurisdictions. In the Blurred Lines case, U.S. District Judge John Kronstadt rejected a new trial but 'trimmed' the damages awarded against Robin Thicke and Pharrell Williams to $5.3 Million (from $7.3 million), whist accepting the  Gaye family's contention that record labels including UMG Recordings, Interscope and Star Trak Entertainment should be held liable for their distribution of the song that was found to be a copy of Gaye's "Got to Give It Up"; Clifford "T.I." Harris Jr., the rapper who contributed a verse on the blockbuster "Blurred Lines" song was also found to be potentially liable.  Sony found out that is was  being sued by 19 Recordings Ltd (which represents a number of artists from the American Idol series, including Kelly Clarkson and Carrie Underwood) over claims that Sony has acted in bad faith in taking a financial stake in Spotify and benefiting from general advertising revenue without passing on a share to the artists. Sony defended its activities by saying it is not required to share its general profits with its artists. Fair? Reasonable? Probably not. And the Berklee Institute for Creative Entrepreneurship released an in-depth study focused on promoting fairness and transparency within the music industry. Finally,  and in the wake of the Jimi Hendrix decision at the Paris Tribunal, 1709 Blog friend and PhD researcher, Mathilde Pavis (University of Exeter), gave us her answers to the question "What is the approach to originality in French courts?" 

August: And the Trans Pacific Partnership Agreement (TPP) was back in the news as the latest leaks revealed a widening disagreement between member nations on the deal’s 'draconian' copyright and intellectual property (IP) provisions which appears to be a split between the USA and almost all of the other 11 potential signatories on a number of copyright provisions.  The then Australian Attorney-General George Brandis commissioned a cost-benefit analysis of proposed digital copyright reform, which will encompass an economic analysis into the Australian Law Reform Commissions's (ALRC) recommendation to adopt a flexible fair use provision in regards to digital copyright in Australian law, seemingly as the the AG was concerned about the costs to both rights holders and rights users.  A federal judge in Los Angeles told the city of Inglewood that it could not silence a critic of Mayor James T. Butts Jr. by asserting copyrights over the official videos of City Council meetings. US District Judge Michael W. Fitzgerald's decision made it clear that the the state legislature had severely limited the ability of local governments and other public entities to copyright the materials they create - and - even if Inglewood could copyright the videos, the use by local resident Joseph Teixeira criticising the Mayor would be covered by fair use. Ashley Madison, the website that allowed married people to have secret liasons tried to prevent dissemination of its stolen database and other information by sending DCMA copyright takedown notices to social networks and file-sharing sites. It was only partially successful - not least as there were 33m user records available to be posted online - a huge volume. Some takedowns worked - but some failed - because platforms such as Twitter resisted some DCMA claims.  As the month ended, in the UK, PRS for Music wrote to it's members saying it is beginning legal action against online music streaming platform SoundCloud after "five years of unsuccessful negotiations". And John Enser updated us on the European Commission latest consultation arising out of its Digital Single Market initiative: This time, the topic on the card was 1993's SatCab Directive, or to give it its full title "Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission"

September began with news that the "Happy Birthday" saga was moving towards the end game: in a summary judgment US District Judge George H. King held that the song's original copyright, assigned  Clayton F. Summy, who copyrighted and published them in a book titled "Song Stories for the Kindergarten" was now free of copyright claims, two years  after Good Morning To You Productions challenged the copyright owned by Warner/Chappell, arguing that the song should be "dedicated to public use and in the public domain." In Japan, Kenjiro Sano's design for the Tokyo Olympic's official logo was dropped after a claim by the Belgian designer Olivier Debie who argued that the design was very similar to one he created for the Theatre De Liege, Mr Sano also admitted that a range of promotional bags produced for brewer Suntory contained copied images, blaming staff at his studio. A zoo is Nagoya was also reportedly checking similarities between its own Sano designed logo and the logo of a museum in Costa Rica. Animal rights charity PETA filed a  federal lawsuit in San Francisco seeking to vest copyright in that infamous 'Monkey Selfie' in the crested black macaque who snapped the image,with photographer David Slater's unattended camera.  PETA (People for the Ethical Treatment of Animals) sued on behalf of the macaque, dubbed Naturo, claiming he was the author of the selfies, thus allowing Peta to administer all revenues from the photos for the benefit of the monkey, and other crested macaques living in a reserve on the Indonesian island of Sulaw. Holy haberdashery, Batman! The 9th U.S. Circuit Court of Appeals confirmed a 2012 District Court judgment that held that the Batmobile's bat-like appearance and other distinct attributes, including its high-tech weaponry, attract copyright protection that can't be replicated without permission from owners DC Comics. Benjamin Allison, the attorney for the Arthur Conan Doyle Estate,  told The Wrap that it has reached a settlement in principle with the producers of Mr Holmes which stars Sir Ian McKellen: The terms of the settlement were not made public, but Mitch Cullin’s novel, on which the film was based,  will cite the use of Conan Doyle's still copyrighted material moving forward. Adult movie studio Malibu Media received a slap on the wrist from New York federal judge Katherine Forrest. The company, often criticised as a copyright 'troll', had asked the court permission to interrogate the neighbours and spouse of an accused downloader - but this was a tactic that the court equated to harassment with Judge Forrest saying "Plaintiff may not subpoena neighbors or Defendant’s significant other based on the current record. As to the neighbors, Plaintiff would be engaged in a fishing expedition and/or harassment of defendant (by way of causing embarrassment/humiliation)".  In an important decision, and one which will undoubtedly have an impact on how content owners deal with what they consider is infringing content on the likes of YouTube, Universal Music Group  were told by the U. appellate court that they should have considered whether a woman’s 29-second video of her two kids dancing to Prince’s “Let’s Go Crazy” was fair use before issuing a takedown notice to YouTube. In Australia Attorney-General George Brandis lost his position as Minister of Arts as well as his responsibilities for copyright and content classification - which moved from his office to that of newly appointed Communication Minister Mitch Fifield. The Australian government was urged on to stop the process of implementing an ISP copyright code.  The Internet users rights group Electronic Frontiers Australia confirmed it wanted the process to be halted. And finally, Russian social network vKontakte (VK) was ordered by a Russian court to use effective technology to prevent copyright infringement of the recordings of two record companies. The IFPI said the ruling, handed down in the Saint Petersburg & Leningradsky Region Arbitration Court, is a significant judgment which, when implemented, should improve the environment for developing a thriving licensed music business in Russia.

So what's on the menu in October? In the USA  The US Court of Appeals for the 2nd Circuit delivered its judgment, and confirmed the decision of Judge Chin in the 'Google Books' case and that the scanning activities of Google within its Library Project are to be considered a fair use of copyright works. In February this year we reported on the case of Tomaydo-Tomahhdo LLC et al v. George Vozary et al where.a federal judge told a Cleveland restaurateur that food recipes can't be protected by copyright law where Judge Patricia A Gaughan said "The identification of ingredients necessary for the preparation of food is a statement of facts. There is no expressive element deserving copyright protection in each listing." In a similar case, an appellate court held now found that neither a chicken sandwich recipe nor its name is eligible for copyright protection in the US. In Colón-Lorenzana v. South American Rest. Corp. the claimant, a worker at a fast-food restaurant, suggested a concept for a new chicken sandwich, complete with his own recipe and a name - the “Pechu Sandwich": This consisted of a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun - but the claims were dismissed by the First Circuit -  neither the recipe nor the trade name fell into any of the eight enumerated categories of works available for copyright protection. Would a court in Europe take the same approach? Keep reading! 
Senators Grassley and Leahy, the Chairman and Ranking Member of the Committee on the Judiciary, succeeded in persuading the US Copyright Office that “software-enabled devices” (such as cars, phones, drones, appliances, and many more products with embedded computer systems) could be modified and altered by users who did not need to go to the expense of taking cars and tractors to authorised dealers. Aerosmith lead singer Steven Tyler had become the third musician to hit Republican presidential candidate Donald Trump with a cease-and-desist letter for his use of music on the campaign trail. joining R.E.M. bassist Mike Mills and Neil Young, who both asked Trump to stop using their music. Yoga was back in the CopyKat's paws after the Indian-American yoga guru Bikram Choudhury lost a case asking for copyright protection for yoga poses and breathing exercises he developed. The Court of Appeals for the Ninth Circuit ruled in favour of Evolation Yoga, against whom Choudhury had filed a lawsuit in 2011, saying that copyright was not appropriate for Choudhury's Bikram Yoga sequences because "it was an idea, process, or system designed to improve health, rather than an expression of an idea" adding it was also ineligible for copyright protection as a compilation or choreographic work. Comments on a leaked 'IP' chapter of the final Trans-Pacific Partnership (TPP) Agreement noted that signatories not already in line with the USA will have to adopt a number of 'Americanised' changes to alter their copyright laws. The intellectual property chapter covers a broad range of issues including extended copyright terms, ISP liability and the criminalisation of non-commercial piracy - the copyright term of signatories will be set to the life of the author plus 70 years. This is already the case in the United States, but Canada for example will have to extend it's current term by 20 years. But still no fair use! Our FrenchKat Asim told us that The Lille High Court rendered  a judgment on September 24th ordering champagne house Vranken Pommery to pay €133,500 by way of damages to the artist Anita Molinero after the company had the latter’s sculpture incinerated without her knowledge or consent. And in the wake of a number of decisions by the CJEU, Eleonora treated us to her extremely useful table which seeks to clarify the answer to the question whether linking falls under the scope of the right of communication to the public as per Article 3 of the InfoSoc Directive (until the next CJEU decision ......):

In November Andy updated us on second six months of the UK IPO's Orphan Works Register.  This period had seen much less activity: Only 31 new applications had been received, taking the total to 294 for the whole year. However the proportion of successful applications has stayed the same at 83%. As was noted at the six month point, the vast majority of applications had been for still images (229) with written works (47) in second place. However the success rate for written works is much lower at 55%. Sound recordings come in third place (14 of which 12 were granted licences) and musical notation, scripts & choreography, and moving images only having one or two applications for each category.  the IPO also announced that it was abandoning the UK's private-copying exception which was introduced in October 2014, and which was effectively declared illegal by the High Court in July of this year - not least because of the ruling of the CJEU in Case C‑572/13, Hewlett-Packard Belgium SPRL v Reprobel SCRL, intervener Epson Europe BV ("Reprobel"). A Czech man, Jakub F, struck a novel deal to avoid penalties for copyright infringement. Admitting “I had to start this site, because I spent eight years spreading pirated software and got caught”, he set up a website set up to promote a YouTube video in which he apologised for his behaviour. If the video reaches 200,00 views, he will pay only a faction of a hefty damages bill, after he was found guilty of copyright infringement.  The Court of Justice of the European Union (CJEU) gave its ruling in Case C‑325/14, SBS Belgium NV v Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM), on a reference for a preliminary ruling from the hof van beroep te Brussel (Brussels Court of Appeal, Belgium) holding that a transmission not accessible to the public is "not a communication to the public". The Anne Frank Fonds, set up in 1963 by Anne’s father, Otto, said that the 'Diary' we all know was still in copyright despite Anne's death in 1945. Why ? Well it seems the Diary is an edited compilation of two earlier works by Anne Frank, and that edited version was put together by her father, Otto, and first published in 1947 - but as the copyright term will run from Otto's death in 1980, the Foundation say this work is still protected by copyright in Europe and will be until 2050.  The Foundation also said that two original versions by Frank, and various later translations, were not published until 1986, and so again the Trust says these remain in copyright, as do the versions edited by the German writer Mirjam Pressler, who is still alive (and is credited as a co-author with Otto of the 'definitive edition'). The Diary was first translated in English in 1952 by Barbara Mooyaart, who is now 96. In the United States, the diary’s copyright will still end in 2047, 95 years after the first publication of the book in 1952. We had only noted the rise of music platform 'Aurous' in September, but by the end of November the writing was on the wall for the alleged " flagrant example of a business model powered by copyright theft on a massive scale" and its founder Andrew Sampson as the Recording Industry Association of America launched an action. And finally our leader, inspiration and blogmeister Jeremy Phillips retired - we already miss him!

So our final month, December. As the month began, the European Commission issued a proposal for a regulation on the cross-border portability of online content services in the internal market and released a new Communication - Towards a modern, more European copyright framework, in which it anticipated that policy and legislative action would be taken in Europe in respect of: (a) exceptions and limitations; (b) exclusive rights (including both clarifying issues facing linking and considering whether any action specific to news aggregators is needed); and (c) enforcement (including Follow the Money strategies, commercial-scale infringements, application of provisional and precautionary measures, and injunctions and their cross-border effect); Thirdly the EC launched a public consultation on the evaluation and modernisation of the legal framework for the enforcement of intellectual property rights. Elsewhere, in Germany, the Federal Supreme Court of Justice (BGH) has upheld a legal ruling that effectively obliges Internet service providers to block access to copyright infringing websites in instances where the site's operators and hosts are unidentifiable. German collection society GEMA immediately welcomed what it called a "long overdue landmark decision" that "points the way forward for protecting the rights of authors in the digital music market" adding "Finally we have legal clarity on the permissibility of blocking access to websites illegally offering copyrighted music works on a massive scale. This is a major step forward in the fight against Internet piracy".  A two-year-old lawsuit over the ownership of the copyright of 'Happy Birthday' came to a close, as publisher Warner/Chappell settled with the plaintiffs who kicked off the dispute. The "most important outcome": once the settlement process has been approved, 'Happy Birthday' will be in the "public domain" (and yes I know I was criticised for using this phrase before. But whatever, this is clearly not an ideal outcome for Warner/Chappell, who had previously been generating around $2m in royalties from the song annually.  As the month ended, 1709 Blog friends Margherita Bariè and Marco Annoni updated us on the potential protection of both culinary recipes and photographs of dishes under Italian law: noting that the photography of food would be protected where they display sufficient originality, we learned of the interesting decision by the Court of Milan to afford protection to recipes saying this protection is based "not on the contents of the recipes of the various kinds of preserved meats or of the instruction to the various preparation steps, but rather on the form of expression that needs to be regarded as relevant for the purposes of the requested protection". And in the world of music, sharing the digital pie and copyright reform, MBW reminded us of the ‘Four Pillars for Fairness’ proposed by the the global umbrella for artists (the IAO) as part of the European copyright review, asking for (i) Transparency in value chain so artistes can see where the money goes (ii) a Duty of Care – an enhanced legal duty of care from intermediaries to artists ensuring artists are protected when intermediaries own or license their work (iii) a Fair Share of Value and (iv) proper Remuneration Rights in digital age.  Andy also took a look at royalties with his very interesting article "Can we always trust copyright licensing?" opining "the good intentions of the EU [CMO management] Directive and the IPO's secondary legislation are laudable but until we can have genuine trust in the vast machinery which monetises copyright, all talk about reforming other parts of copyright is rather like building a house on sand." CISAC reported that for 2014, the total revenue collected by its members worldwide was €7.9 billion (£5.8 Billion). As the copyright year closed, PRS for Music settled with online platform SoundCloud after five years of fruitless negotiation and that recently launched legal action, with CEO Robert Ashcroft saying the deal had resulted "in a licence under which our members are fairly rewarded for the use of their music" adding "The safe harbours in current legislation still present ambiguity, and obstruct the efficient licensing of online services, but our agreement with SoundCloud is a step in the right direction towards a more level playing field for the online marketplace" and that Europe needs to rebalance how safe harbour provisions work saying "We’ve called on the European Commission to examine the boundaries of who can benefit from the hosting defence under safe harbour legislation and who cannot." As the year ended, the US Copyright Office announced a review of ‘section 512’, which contains the safe harbours in American copyright law. And finally back down under: it seems the Australian government is planning more copyright laws changes, publishing draft amendments to the Copyright Act 1968 for 'safe harbour' protection as well as an exception for people with disabilities, simplifying educational licences,allowing preservation copies for libraries and greater clarity for cultural institutions. Comments on the draft amendments can be submitted until 12 February 2016. The Second U.S. Circuit Court of Appeals ruled that the rights to the familiar Christmas tune “Santa Claus is Comin’ to Town” will revert to the original artist’s heirs in 2016.  The Second U.S. Circuit Court of Appeals ruled that the rights to the familiar Christmas tune “Santa Claus is Comin’ to Town” will revert to the original artist’s heirs in 2016. And let's end with some Christmas 'bah humbug': The decision from Justice Perram in Australia in Dallas Buyers Club LLC v iiNet Limited (No 5) [2015] FCA 1437 will not have cheered the movie industry, and Jani Ihalainen explains all on the IPKat here, but just to cheer up the content industries, a New Zealand judge ruled that MegaUpload boss Kim Dotcom and three of his colleagues could be extradited to the United States to face criminal copyright charges. Unsurprisingly Dotcom's lawyers said they would appeal. 


You can catch up with Eleonora's 2015 Copyright Awards on the IPKat here. 

As ever - readers will have their own views on what should (or perhaps should not) be in their copyright year. The CopyKat writes from a UK/US, music industry and common law perspective: So please let us know if you think something important is missing - comment is free on the 1709 blog, but please be polite and thoughtful!