THE COPYKAT - in the wake of "Blurred Lines" - more blurred lines

There have been two major US decisions in the word of music and sound recordings with a win for Kraftwerk and a loss for Katy Perry, and in the background a third (the Led Zepplin "Stairway to Heaven" case waits for an upcoming an en banc appeal in the Ninth Circuit, and a fourth involving Ed Sheerhan in turn waiting for that decision (Sheerhan v Townsend) with Judge Louis L Stanton acknowledging that as the appeal judges will be considering some copyright technicalities that are very relevant to the 'Thinking Out Loud' action, even if not binding, to proceed with Sheerhan case in "wilful ignorance" of their conclusions would be "folly". 

First off - sampling: The European Court of Justice sided with German electronic music pioneers Kraftwerk, ruling that unauthorised sampling of even brief clips of a sound recording can constitute copyright infringement as long as they are recognisable, in a long running case that has added some clarity to how sampling should be treated in the European Union. Kraftwerk brought the action against hip-hop producers Moses Pelham and Martin Haas in 1999 over the Sabrina Setlur track “Nur Mir”, which revolves around a two-second snippet of Kratfwerk's “Metall auf Metall” used as a loop.

In 2012, Germany's Federal Court Of Justice found in favour of Kraftwerk, in part on the basis that Pelham could have easily recreated the sound he sampled, so clipping the snippet out of 'Metal On Metal' was just laziness. Four years later the German Constitutional Court overturned that judgement, deciding Pelham's "artistic freedom" had to be considered - and that the negative impact on Kraftwerk caused by the uncleared sample wasn't sufficient to outweigh the sampler's artistic rights. The case was then referred to the CJEU.

Making clear the difference between sampling a recording and copying part (or all) of a song, Advocate General Maciej Szpunar wrote in his opinion "A phonogram is not an intellectual creation consisting of a composition of elements such as words, sounds, colours etc. A phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself" adding "Consequently, although, in the case of [other creative works], it is possible to distinguish the elements which may not be protected, such as words, sounds, colours etc, from the subject-matter which may be protected in the form of the original arrangement of those elements, such a distinction is not, however, possible in the case of a phonogram".

In the second major case, a jury has now ruled that the Katy Perry song Dark Horse does plagiarise a Christian rap song. After two days of deliberations, the jurors concluded that Perry's team had likely heard 2008 release 'Joyful Noise' before writing 'Dark Horse', and that the latter was sufficiently similar to the former to constitute copyright infringement.

Both producer Dr Luke, a co-writer on Perry's hit and Perry herself said they had never heard of 'Joyful Noise' nor heard of the artist behind it, the rapper Flame, real name Marcus Gray - before they started work on their song and recording. Gray's team argued that there had been many opportunities for Perry and her co-writers to to have heard 'Joyful Noise' and argued that whilst the copying may not have been deliberate,  her team had subconsciously infringed the earlier work. Gray's legal team also also pointed to the similarities between the two songs - each share a distinct musical phrase consisting of four C notes followed by two B notes. Perry's legal team argued that this was a very common musical phrase that couldn't possibly be protected by copyright. Luke added that if the court did indeed decide that a musical phrase of this kind enjoyed copyright protection, it could set a dangerous precedent that would impede the music making process.

They're trying to own basic building blocks of music, the alphabet of music that should be available to everyone," said Katy's lawyer Christine Lepera during her closing arguments in court last week, but the jury has accepted that this was copyright infringement. The case now goes to a penalty phase, where the jury will decide how much Perry and other defendants owe for copyright infringement.  Jurors found all six songwriters and all four corporations that released and distributed the songs were liable, including Perry and Sarah Hudson, who wrote the song’s words, Juicy J, who wrote the rap he provided for the song. Other defendants found liable included Capitol Records as well as Perry’s producers: Dr. Luke, Max Martin and Cirkut, who came up with the song’s beat.

A wide array of artists – including Korn, Tool, Sean Lennon, Linkin Park and  Jason Mraz have joined the amicus brief submitted in the ongoing ‘Stairway To Heaven’ case, supporting the British rock band in their arguments and calling on the judges in the Ninth Circuit appeals court to uphold the earlier ruling that Led Zeppelin did copy ‘Taurus’ when they wrote their 1971 classic. In total 123 artists support the amicus brief saying that if the original ruling in the ‘Stairway to Heaven’ case is overturned it could create a dangerous precedent that would be hugely detrimental to songwriting and an assumption that “trivial and commonplace similarities between two songs could be considered to constitute the basis for a finding of infringement” and that this would confuse artists, stifle creativity, and result in “excessive and unwarranted” litigation by artists and lawyers seeking to profit from ambiguities in the law.

Rolling Stone magazine published the article Why All Your Favorite Songs Are Suddenly Being Sued? asking asking why is so much music being hit with lawsuits, in a trend a trend that shows no sign of slowing. You can find that here and more comment and analysis here (from Professor Edward Lee in the Washington Post) 

Major US broadcasters ABC, CBS, Fox and NBC Universal have filed a lawsuit against an upstart online TV service offering free over-the-air digital TV service. The suit filed in U.S. District Court in New York alleges Locast owner, New York-based non-profit advocacy group Sports Fans Coalition violates broadcaster copyrights streaming content to users for free. The suit is similar to 2013 litigation brought by studios against Aereo, the defunct OTT service that transmitted digital signals to subscribers via over-the-air antennas. The litigation also pits broadcasters against AT&T, which owns and operates WarnerMedia — although the telecom is not party to the lawsuit. More here and here. 

And more from the US: Bloomberg Law reports that a battle over banana costumes continues in federal court with one manufacturer under order to stop selling full-body banana suits because they likely infringe another’s valid copyright.  The U.S. Court of Appeals for the Third Circuit affirmed a lower court’s order stopping Kangaroo Manufacturing Inc. from selling banana costumes that are confusingly similar to plaintiff Rasta Imposta’s copyrighted design. Rasta’s copyright is valid because it didn’t “monopolize the underlying idea” of a banana, the court said. More here. 

And finally - copyright notices - serious business yes? It seems not always! Techdirt have been doing some digging and have found some very amusing notices that certainly do not fit in with the prescribed formats: How about ""No part of this publication may be reproduced, stored in a retrieval system, cookie jar or spare room... Unless you want to write the whole thing out in green crayon, in which case feel free." and "This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, carried across the country by relay, fired into space, turned upside down, eaten... On pain of death."

Kraftwerk Image Nigel Hardy https://www.flickr.com/photos/92352391@N00/35441036106

THE COPYKAT - the macaque is back

New research from the UK's Intellectual Property Office (IPO) shows that internet streaming services such as Spotify and Netflix have resulted in online piracy falling to its lowest rate in years.The research shows that that 15% of internet users illegally accessed films, music and other material between March and May. This is down from 18% a year ago and was the lowest recorded rate in the five years the study has been carried out. Muasic, TV and films dominate piracted material. 

Naruto by ...... ??

We have repeatedly reported on Naruto, the rare crested macaque that took the now internationally famous 'selfie' - and the recents and unsuucesful arguments by animal rights group  PETA (People for the Ethical Treatment of Animals) to persuade the courts that the monkey should be considered the author and copyright owner of the photo saying "While the claim of authorship by species other than homo sapiens may be novel, 'authorship; under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto". US District Judge William Orrick was unimpressed and ruled that the monkey, who borrowed British photographer David Slater's camera and took the selfies, cannot own the copyright in the pictures. During a brief hearing the judge, dismissing the suit, stated: "I'm not the person to weigh into this. This is an issue for Congress and the president. If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that."  Now the group has filed an apeal with the 9th Circuit Court of Appeals. More here and here.

An infringement case against rapper Ghostface Killah has been revived after a judge ruled that composer Jack Urbont could move forward with the case. The initial lawsuit was dismissed, but in April, 2015 judges for the 2nd Circuit Court of Appeals overturned that decision. Urbont, who created the theme song for the 1960s TV version of Iron Man, filed a lawsuit in 2011, claiming Ghostface sampled the Iron Man Theme twice on his 2000 album 'Supreme Clientele'. Now Judge Peter Hall has ruled that Urbont could argue he owns the rights to the Iron Man Theme, and also suggested Ghostface and the songs' producer RZA may have infringed on the audiovisual rights for the tune, because the Iron Man track was never officially released as a single and was likely lifted from the Marvel Super Heroes show, according to RollingStone.com.

LeBron James by Keith Allison

Tattoo artists Solid Oak Sketches have lost an important battle in their claim against the animators behind the NBA 2K video game series - which feature  several NBA stars including James, Kobe Bryant and Eric Bledsoe - tattoos and all! The tattoo designers were seeking actual damages in an amount to be determined at trial, or statutory damages and attorneys' fees — but a New York federal judge on Tuesday ruled out the latter. "[I]n order to obtain statutory damages and attorneys' fees, a plaintiff must have registered its copyright prior to the alleged infringement," U.S. District Judge Laura Taylor Swain wrote. And the copyrights in the tattoos were not registered until 2015 - AFTER the alleged infringements began in 2013 with the Judge saying "[W]hen the same defendant infringes on the same protected work in the same manner as it did prior to the work's registration, the post-registration infringement constitutes the continuation of a series of ongoing infringements" The judge also dimissed a claim of willful infringemet by 2K Games and Take-Two Interactive Software, saying willfulness is not relevant to analysis of Section 412 of the Copyright Act, which imposes a bright-line rule barring statutory damages and fees if the first act of infringement happened before the work was registered.

The U.S. Copyright Office has criticized the Federal Communications Commission's plans to open up the market for pay-TV set-top boxes, FCC Chairman Tom Wheeler has been pushing for new FCC rules to open up the market for the costly set-top boxes, currently dominated by cable and satellite pay-TV providers, to let in new entrants such as Alphabet Inc.’s Google. .Mr. Wheeler’s plan has prompted strong objections from pay-TV providers and TV-program producers. They argue that the current plan could upset their carefully-negotiated contractual arrangements with pay-TV providers on issues such as channel placement and advertising. The letter from the Copyright Office appears to back those concerns, saying, “As currently proposed, the [FCC] rule could interfere with copyright owners’ rights to license their works as provided by copyright law” adding that Copyright Office is “hopeful that the FCC will refine its approach as necessary to avoid conflicts with copyright law and authors’ interests under that law.”

Its not April Fool's day is it? Anyway, the lawyer of a 90-year-old woman identified as Hannelore K, who mistakenly started filling in an art exhibit in the form of a crossword puzzle, now claims that she holds the copyright of the "new" work. The 1977 creation by the 20th-century artist Arthur Köpcke was lent to Nuremberg’s Neues Museum by a private collector, and is said to be worth around £70,000 and the woman, a retired dentist, said that she started filling in the artwork's crossword puzzle because it bore the phrases "Insert words" and "so it suits." Whilst the artwork has been clensed of her additions in biro, the lawyer has had to rebutt a police investigation into his client's behaviour and has now said that far from harming the work in question, his client has increased its value by bringing the relatively-unknown Köpcke to the attention of a wider public. Moreover, her "invigorating re-working" of the exhibit further increased its worth. Indeed, Frau K.'s lawyer claimed that her additions meant that she now held the copyright of the combined artwork - and that, in theory, the private collector might sue the museum for destroying that new collaborative work (made without his permission) by restoring it to its original state. More on Arts Technica here. Image by Chip Griffin. 

Is music sampling back in Vogue?

A US Appeals court has decided that Madonna did not violate copyright law when her producer allegedly used a short section of music taken from another recording for her hit song “Vogue”. The split 2-1 decision must  call into doubt the strict approach taken by the 6th Circuit Court of Appeals in the leading case of Bridgeport Music, Inc., et al. v. Dimension Films, et al 410 F.3d 792 (September 2004). There the court in Cincinnati posed the question “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?” The Court’s answer to this was in the negative” and the court added “Get a license or do not sample – we do not see this as stifling creativity in any significant way.”

But in this new case, the U.S. 9th Circuit Court of Appeals said the horn segment at the heart of the copyright lawsuit  lasted less than a second and would not have been recognisable to a general audience.

Judge Susan P. Graber said for the majority: "The horn hit occurs only a few times in ‘Vogue' .... without careful attention, the horn hits are easy to miss.” The decision fits in neatly with the December 2014 decision by New York federal judge Lewis Kaplan who dismissed TufAmerica's lawsuit against Jay Z and his record companies which alleged he had violated copyright by sampling an "oh" on the song, "Run This Town," released on the album The Blueprint 3 from an older sound recording entitled "Hook & Sling Part 1" saying ""Plaintiff's tautological argument that 'oh' must be qualitatively significant to Hook & Sling Part I and to the "Hook & Sling" Master because defendants' sampled it more than 40 times in "Run This Town" misunderstands copyright law generally and the substantial similarity test in particular," writes the judge, later adding, "If the original recording has been sampled at all ... the fact of the matter is that the samples appear only faintly in the background of Run This Town and are, at best, only barely perceptible to the average listener."

VMG Salsoul, LLC, which holds a copyright to “Love Break,” sued Madonna and others, alleging that  Shep Pettibone, the producer of “Vogue,” copied a 0.23-second segment of horns from “Love Break,” which he had worked on years earlier. "Vogue" was a release from the album "I'm Breathless", and topped the charts in all major music markets reaching number one in the USA, the UK, Australia, Canada, Italy and Spain, selling six million units worldwide.

Having listened to the recordings Judge Graber held: “we conclude that a reasonable jury could not conclude that an average audience would recognize the appropriation of the composition.”

However, Judge Barry G. Silverman dissented, arguing that the use of the horn segments, if proven,  would amount to infringement: “It is no defense to theft that the thief made off with only a ‘de minimis’ part of the victim’s property”.  He said a copyright of a recording amounted to a “valuable property right, the stock-in-trade of artists who make their living recording music and selling records.”

The German Constitutional Court in Karlsruhe recently made a ruling in a case brought by the German avant garde rock band Kraftwerk against German music producer Moses Pelham over a two second sample - balancing the position of rights owners against a right of artistic freedom - coming down on the side of the latter. According to the Constitutional Court, requiring the phonogram producer's permission for taking even the "tiniest sliver" of a recording when it was possible to recreate the sound without copying violated freedom of art as it would essentially prohibit modern forms of pop music, namely hip hop, which relied on sampling. Norms of hip hop demanded actual sampling, not recreation of that snippet. Licensing was not a viable alternative namely for songs that were sampled from many other recordings, as it  as it was very time consuming and prohibitively complicated.

http://www.latimes.com/entertainment/music/la-et-ms-madonna-vogue-copyright-law-20160602-snap-story.html

http://musiclawupdates.blogspot.co.uk/2016/05/german-constitutional-court-sends.html

TufAmerica, Inc v   WB Music Corp, et al. Case 1:13-cv-07874-LAK 

Bridgeport Music, Inc., et al. v. Dimension Films, et al 410 F.3d 792

http://www.musiclawupdates.com/?p=199

The CopyKat - choppy seas ahead for safe harbour and fair use?

In the USA, the MPAA and RIAA are backing a new copyright curriculum showing kids how to become "Ethical Digital Citizens." But perhaps tellingly, it was only  public pressure that meant the the curriculum was edited to include the fair use principle, and the more flexible copyright licences that systems such as Creative Commons provide. And it seems this is more fair use in the lesson plans than Hollywood wanted. A series of leaked emails seen by TorrentFreak ends with the MPAA’s Howard Gantman saying  “So the end result contains sections on fair use that are more extensive than we would use if we drafted the curriculum ourselves. But overall, the effort will hopefully lead to an active program within our schools to help get kids to understand what it means to behave ethically on the Internet”.

The Indepdent reports that The High Court in Ireland has told internet service provider UPC that it must introduce a three-strikes system to help combat online piracy.  UPC is Ireland’s second largest broadband provider with 360,000 customers. It means the net firm must start sending warning letters to suspected file-sharers with the threat of sanctions against those customers who ignore the warnings, and according to the ruling the record companies need only cover 20% of the costs associated with the scheme. Mr Justice Cregan said that there was "wholesale theft"  taking place on the UPC network. He said that the constitutional rights of "a whole class of persons are not just being infringed but are being destroyed".  The downloading of music for free is destroying the intellectual property rights of creative artists and should be a matter of great concern in any civilised society, he said.

Mike Weatherley MP

As the life of the current UK Parliament ends, Mike Weatherley MP who is stepping down as a Member of Parliament has published a final Discussion Paper on copyright. Safe harbour provisions and online service providers. The former Intellectual Porperty Advisor to the UK's Prime Minister has this time focussed on 'safe-harbour' provisions in EU law, adding to the ongping debate on copyright reform in the European Union. Commenting on his latest paper, Weatherley told reporters: "I felt that it was important to continue to highlight the issues that have grave consequences for our fantastic creative industries. The creative industries are huge contributors to our economy so it's vital, in order to protect them, that the regulations which were set out in 2000 are updated. The broad scope of the [2000 E-Commerce] Directive results in rights holders losing out to pirates on an industrial scale" and the Report concludes "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."

More on safe habour: In the US, BMG and Round Hill Music continue with their action agaisnt cable company Cox Communications over its alleged inaction in forwarding warning letters to suspected file-sharers. The music firms argued that by failing to act after being alerted to piracy on its networks, Cox should lose its safe harbour protections and be held liable for the copyright infringement of its customers. The claim says Cox failed to disconnect 200,000 repeat copyright infringers. The rightsholders are requesting detailed financial information to show that the company profits from its inaction. Meanwhile TorrentFreak reports that Cox is looking into the ownership of the 1,000 odd works for which they received seven million DMCA takedown notices, and the ISP also wants an expert opinion on the source code of the Rightscorp’s crawler that was used to spot the alleged infringements.

This from InfoJustice commenting on the Lisbon Council and Innovation Economics' The 2015 Intellectual Property and Economic Growth Index:  Measuring the Impact of Exceptions and Limitations in Copyright on Growth, Jobs and Prosperity.  The report by Benjamin Gibert examines limitations and exceptions to copyright in eight OECD countries, and then describes economic growth at the overall and industry level in those countries. The key findings: “countries that employ a broadly ‘flexible’ regime of exceptions in copyright” have higher rates of growth of their overall economy, information technology & service sectors, and even traditional media sectors.  Workers in these economies also fared better, enjoying higher wages overall, in the communications sector, and technology sector. Gibert further notes other positive aspects of more open systems of copyright limitations and exceptions, such as “the promotion o0f education, independent research, free speech, user-generated content and text and data mining.”  He argues that exceptions to copyright should not be viewed as being in conflict with stronger intellectual property protection.  Rather, “the evidence suggests that broad and flexible exceptions to copyright embedded within a strong intellectual property framework may be the best way to achieve both simultaneously.

MusicTank has published a white paper called 'Private Copying Of Music: A New Model For Artist Compensation', part of the think tank's new Future Thinking programme, which aims to put out thought-provoking papers written by postgraduate students on the University Of Westminster's Music Business Management course - with this paper written by Sam Rudy.
Music Tank say that with the European Parliament’s Private Copying report (17.02.14) highlighting that there is currently no other alternative approach to compensation systems for private copying that would ensure appropriate remuneration for rights holders, this paper addresses European Parliament’s call for further discussion to be conducted in order to update the mechanisms and make them more effective, with Sally Gross, MA MBM Course Director, University of Westminster, saying " Extensively researched, this paper positions a timely and convincing argument that a private copy levy, even in these days of streaming, should still make up a substantial part of music industry finance.”

In Australia: "The Abbott government has caved in to sustained pressure from the US media industry and introduced copyright laws into parliament that appear to have the sole purpose of stamping out the rebellion against delayed access to content and rip-off prices." With access to user's metadata now provided for under the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015, Communications Minister Malcolm Turnbull introduced the Copyright Amendment (Online Infringement) Bill 2015 into Parliament on 26 March - with the revisions being blamed by many on the US driven provisions of the Trans-Pacific Partnership trade agreement and provides a procedure for web blocking in the federal courts. Interesting comment on Technology Spectaor here.

In the UK,  the transitional provisions to implement  the repeal of section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) have been published. The change means the period of copyright protection for an artistic work which has been industrially manufactured, will be extended from 25 years to the life of the author plus 70 years. The change has retrospective effect and industrially exploited designs whose copyright protection had expired under the 25 year rule will have copyright protection 'restored'.  Repeal of section 52 of the CDPA will take effect on 06 April 2020: Following the repeal, parties that are currently trading in copies will have an indefinite period to sell off their stock, and may freely deal with copies made prior to the change of the law without this being an infringement. Manufacture or importation of new unlicensed copies will however be unlawful as of 06 April 2020. A guidance will be issued. More from D Young & Co  here.

IBT reports that in recent court papers, lawyers for the Fox News network have argued that posting a third party photograph on a social media site without that person’s permission should not necessarily constitute copyright theft. Why? Because social media - in particular Facebook - is by its very definition “social.” When you "post something on Facebook, you invite other users to comment and critique it" andFox argue that this alone could satisfy the criteria for a fair use defense. Fox are a defendant in a lawsuit regarding the use of Thomas E Franklin’s iconic photograph of New York City firefighters raising the American flag over the rubble of the World Trade Center on Sept. 11, 2001, owned by North Jersey Media Group.

And again in the US, the Professional Photographers of America (PPA) is offering photographers the opportunity to learn more about copyright, and inform their local photo retailers what might constitute infringement. The goal is to reduce copyright infringement on photography nationwide during this April, which is Copyright Awareness Month with the PPA saying ""The most important point to get across to printing retailers is ‘when in doubt, never print or reproduce a professionally-created photograph without written consent from the photographe," 

A U.S. District Court judge has ruled in favor of a parody of the 1970s sitcom “Three’s Company” in a copyright infringement case. Loretta A. Preska, Chief United States District Court Judge for the Southern District of New York, ruled that ’3C,’ a play that parodies ‘Three’s Company,’ does not infringe on that copyrighted programme. Preska wrote in her ruling: “’3C’ is a fair use of ‘Three’s Company.’ The play is a highly transformative parody of the television series that, although it appropriates a substantial amount of ‘Three’s Company,’ is a drastic departure from the original. … Equating the two to each other as a thematic or stylistic matter is untenable". More here.

The National Football League and The Associated Press have defeated a lawsuit filed by freelance professional photographers who cover the NFL and challenged licensing agreements they said violated antitrust and copyright laws.
Southern District Judge Robert Sweet granted motions to dismiss by the NFL and AP, and handed a third defendant a win by granting a prior licensee, Getty Images, its motion to compel arbitration in Spinelli v. National Football League, 13 Civ. 7398.

And finally, the eight-year long battle over whether Jay Z sampled an Egyptian song and recording "Khosara, Khosara” in his hit single "Big Pimpin'” is heading to trial. Judge Christina Snyde has indicated she will dismiss the motion for summary judgment brought by Osama Ahmed Fahmy, heir to composer Baligh Hamdy, against the rapper and fellow defendants Timbaland,  Paramount Pictures, Warner Music, UMG and MTV. Fahmy had previously argued that the moral rights in the track had been were violated as the work had been “mutilated”, but the case is now focussing on whether the Jay Z and Timbaland actually had permission to use the recording as Fahmy now contends that the record company that licensed “Khosara Khosara” to Timbaland never had the right to license the song in the first place. Timbaland made a deal with EMI Arabia, which had a deal with the Egyptian record label Sout el Phan. Fahmy had licensed “Khosara Khosara” to Sout el Phan. He claims EMI Arabia’s license to the song expired in 2007 and that in all events, EMI would have needed his permission to sub-licence the track. Judge Snyder agreed that the terms of the licensing agreements presented triable issues. 

Lyrical re-write is a cacophony to the ears of a Chinese songwriter

China is focussing on the rights of songwriters after an act on the celebrity reality show I Am A Singer,  broadcast Hunan Satellite TV in January, moved many of the audience to tears with their performance of Mum in the Candlelight. But the singing duo of Chen Yufan and Hu Haiquan had made numerous changes to the song's lyrics and now the original lyricist, Li Chunli, is seeking legal redress againt  Hunan TV and the performing duo, asking for a public apology and 200,000 yuan ($32,659) according to China Daily. Gu Jianfen, who composed the music for Li's words in the original version, has also been in talks with the Hunan, andChina Daily reported that Li told Guangming Online that "I lost my song". In response, the duo defended themselves saying "it should be the program's producers that come out to deal with it" saying that their contract with Hunan protected them.

Li's view was more forthright saying "Changing a song without any prior notice is the greatest disrespect to composers and lyricists. It's like your own kids are grabbed by others for a facelift and then their real mom is made unknown to the public." Li wrote the song at the age of 17 for her mother, who had been ill for a long time, and when her mother passed away three years ago, Li played the song as a goodbye at the funeral. Now each year she sings it to her mother on the Tomb-Sweeping Day and Li said of the song "It is of great importance to me," she said. "Its creation embodies my own experience and feelings."

Lu Junjie, an attorney representing Li, said that the contract between Hunan TV and the Music Copyright Society of China makes it clear that the song must be used in its original form and added that any change must be subject to agreement by copyright owners, Lu said. Ge Xiaoying, composer Gu's attorney, said "it is quite clear that this is an infringement" and it seems that Hunan Satellite TV has apologized, it has not been "active, complete and timely" in dealing with the issue, he said. Lyricist Li added that with copyright, "The awareness is terrible," said the songwriter now in her seventies. "I stand out to fight infringement because I don't want young musicians to lose hope."

It all reminds me a bit of Gilbert O'Sullivan's ultimately successful action against Biz Markie after Markie sampled a substantial portion of O'Sullivan's 1972 song Alone Again (Naturally) in his song Alone Again  In Grand Upright Music, Ltd v. Warner Bros. Records Inc., 780 F.Supp. 182 (S.D.N.Y. 1991), Judge Kevin Thomas Duffy granted an injunction against the defendant, Warner Bros. Records, to block the use of the unauthorised sample – O’Sullivan had actually been asked and refused permission to use part of what was clearly a very personal song (although O'Sullivan has denied it is autobiographical) and the court said "it is clear that the defendants knew that they were violating the plaintiff's rights as well as the rights of others. Their only aim was to sell thousands upon thousands of records. This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures." Judge Duffy opened his findings with "Thou shall not steal", and proceeded to clarify that samples needed to be cleared and  referred the case to the District Attorney for criminal prosecution (although this never happened). I do wonder what the Undertones and Blondie thought of One Direction's recent "mash up". As an old punk it quite ruined my day.

Also in China, the country’s  copyright authorities have voiced support for Yang Jiang, a centenarian who urged a halt to an upcoming auction involving private missives written between her and her late husband, Qian Zhongshu, a renowned Chinese literary scholar. Yu Cike, a senior official with the National Copyright Administration, said "Auctioning Qian's private letters may lead to the infringement of the rights of property, authorship, privacy and reputation... We support the copyright owner to protect her rights in accordance with law and will keep tracking the event".  The auction was announced by Beijing-based auction company Sungari and involves 110 letters and manuscripts written in the 1980s by Qian, his wife Yang Jiang and their late daughter Qian Yuan.

With the auction scheduled for late June, the plan triggered vehement protest from Yang Jiang, now 102 and herself a literary scholar, who said she was "hurt and shocked" by the publicity and potential trade of the "most intimate personal communications" as “commodities”. Yu Cike added that there was a threat of legal action and "Those composing the missives are their copyright owners, and auction groups should not make any copyright-related use of such missives without the consent of copyright owners" adding that publicising the letters' contents might result in copyright infringement. However other Chinese commentators pointed out that "the physical ownership of the letters was quite separate from copyright issues".

http://www.chinadaily.com.cn/cndy/2013-05/29/content_16541674.htm
http://www.musiclawupdates.com/?p=199
http://www.chinadaily.com.cn/business/2013-05/30/content_16547034.htm

For a very quick and neat synopsis  of the US position on music sampling, New York attorney Mita Carriman (Carriman Law Croup) has written a piece here http://www.hypebot.com/hypebot/2013/05/4-music-law-myths-that-indie-musicians-need-to-shake.html

And back in August 2011 Jeremy blogged a fascinating piece on copyright in old manuscripts and letters on the 1709 blog here http://the1709blog.blogspot.co.uk/2011/08/dead-author-old-manuscripts-live-issues.html and the appellate court decision in the 1987 US case of  Salinger v Random House is a useful read too.

Kanye West and Jay-Z settle Syl Johnson's lawsuit

Kanye West and Jay-Z look
happy (?) with the settlement

A few months ago this Blog had reported news of a lawsuit filed by soul singer Syl Johnson before US District Court for the Northern District of Illinois Eastern Division against rappers Jay-Z and Kanye West.

The singer had claimed that the hip-hop duo's 2011 song The Joy was a plagiarism of his 1967 track Different Strokes.

According to Johnson, Kanye West had failed to obtain permission to use an excerpt of Different Strokes for his 2010 record My Beautiful Dark Twisted Fantasy. Therefore, at that time no sampling of Syl Johnson's song had been included.

In August 2011, West and Jay-Z released new album Watch The Throne, which includes The Joy. 
In October last, when filing suit against the duo plus Rock-A-Fella Records, UMG and Def Jam, Johnson had asked the Court to order a full accounting from defendants arising out of the sales and publishing activities relating to any of his rights, as well as punitive damages for the alleged sample usage.
Yesterday music magazine Rolling Stone reported that the parties have agreed to settle the federal lawsuit. As always happens, the details of the settlement have not been made public. However, those UK-based readers of this Blog who fancy both hip-hop music and copyright may be interested in appreciating for themselves whether this was an actual case of copyright infringement.
Jay-Z and Kanye Wset will tour the UK this summer in support of their joint album Watch The Throne.

Kanye West and Jay-Z no wanna give up the throne

S(a)mple joy?

Chicago soul singer Syl Johnson was not pleased when, back in the summer of this year, he heard a track from his 1967 song Different Strokes sampled in Kanye West and Jay-Z's The Joy from the deluxe version of their joint album Watch The Throne.

Different Strokes has been sampled by several artists, including Michael Jackson, Will Smith, Kid Rock and Tupac Shakur. Representatives for West -- claims Mr Johnson, who is a veteran of copyright battles -- first attempted to obtain permission to use an excerpt of the song for his 2010 album My Beautiful Dark Twisted Fantasy. However, because they were unable to obtain permission in time for the release of the album, no sampling of the song was included there.

In August 2011, West and Jay-Z released new album Watch The Throne, which includes The Joy.

In October, Johnson filed suit against the hip-hop duo plus Rock-A-Fella Records, UMG and Def Jam before the U.S. District Court for the Northern District of Illinois Eastern Division. He claimed that defendant's conduct infringed -- inter alia -- 17 U.S.C. §106 and they were liable under 17 U.S.C. §501. He asked the Court to order a full accounting from defendants arising out of the sales and publishing activities relating to any of his rights, as well as punitive damages for the alleged sample usage.

A few days ago, West and Jay-Z indicated how they intend to fight the lawsuit. In particular, they challenge Johnson's standing in bringing the claim and question whether Johnson's sound recording is protected by federal copyright since it was made before 1972, when the law changed to cover sound recordings. Sound recordings fixed before February 15, 1972, were generally protected by common law or in some cases by statutes enacted in certain states but were not protected by federal copyright law. The defendants also suggest they may have had a licence to use it. According to their Answer:

"Any claim based on the alleged use of Plaintiffs' recording is barred because, inter alia, (a) the allegedly copied portion of the Plaintiff's recording is not part of the musical composition; and, if it is part of the composition, (b) is not protectable and/or (c) any use was de minimis."

Earlier this month, Syl Johnson was nominated for two Grammy Awards for Best Historical Album and Best Liner Notes for Syl Johnson: Complete Mythology. "Should have been three [Kanye West and Jay-Z were nominated for Best Rap Album Watch The Throne]", he told Billboard.

"I don't know why Kanye didn't get with me first," said Johnson, "the man knows me and my daughter ... [Kanye] said he wanted to meet with me and apologize - since I sued him -- but I didn't sue him to be smart, I sued him because that's the right thing to do man, I'm a musician."

Metall auf Metall II – The Curious Case of Free Use and Sampling



Kraftwerk album 'Trans Europa Express'

Sabrina Setlur single 'Nur Mir'

I have only now got around to reading and reporting on ‘Metall auf Metall II’ – a case on free use and sampling decided by the Higher Regional Court of Hamburg (OLG Hamburg) on 17 August (case reference 5 U 48/05). The facts of the case are as follows:

The claimants are members of famous German band ‘Kraftwerk’. In 1977, they released a record that included the title ‘Metall auf Metall’ (‘metal on metal’), which they also produced.

Twenty years later, German rapper Sabrina Setlur had a hit with her title ‘Nur Mir’ (which in context translates as ‘to me only’). The defendants are the producer and the composers of ‘Nur Mir’. They sampled a sequence of two seconds from ‘Metall auf Metall’, put it on a loop and used it as the continuous rhythmic layer for Ms Setlur to rap over on ‘Nur Mir’.

According to the claimants, this constitutes an infringement of their neighbouring rights as producers of the sound recording ‘Metall auf Metall’ (§ 85 (1) (1) UrhG; German law provides no author’s right protection for sound recordings).

The case has already been all the way to the Federal Supreme Court (BGH), was reversed and remanded, and now the OLG Hamburg has granted leave to appeal on legal grounds again because the judges don’t seem too sure they have reached the right conclusion this time round.

In a nutshell, the conclusion they did reach was that ‘Nur Mir’ constitutes an infringement because it would not have been unreasonably cumbersome to produce a ‘sound-alike’ rhythm sequence.

In the decision that reversed and remanded the earlier judgment by the OLG, the BGH held that § 24 UrhG on free use applies mutatis mutandis to neighbouring rights. § 24 UrhG reads:

 

(1)   An independent work created by free use of the work of another person may be published and exploited without the consent of the author of the used work.

(2)   Paragraph (1) shall not apply to the use of a musical work where a melody has been recognisably borrowed from the work and used as a basis for a new work.

According to the BGH, § 24 (1) BGH does not apply if it is possible to produce the sampled sound sequence independently, or if the sampled sequence is protected as a melody under § 24 (2) UrhG.

Independent Work

In order to be an independent work created by free use for the purposes of § 24 (1) UrhG, the new work must keep sufficient distance to the borrowed original traits of the used work, to the extent that the original traits of the elder work fade into the background in view of the originality of the new work (established BGH case law). Quite when that is the case is a bit of a mystery, though. Especially in cases on parody, courts and commentators do rather a lot of squirming and modify the requirement of ‘fading to the background’. It is said to suffice if the new work keeps a great ‘inner distance’ to the work from which it borrows, especially if an ‘artistic engagement’ (‘künstlerische Auseinandersetzung’) with the borrowed work takes place, but also if the ‘inner distance’ is realised by some other means in the view of an independent observer who knows the elder work but also possesses the intellectual understanding required for the new work. In principle, though, the standard is a strict one. Are you confused yet?

In any case, the OLG found that ‘Nur Mir’ possessed an entirely different character from ‘Metall auf Metall’, even though the rhythm sequence was clearly audible throughout the track. Making allowances for the hip hop genre, the judges stated that it would be asking too much if one were to demand a rhythmic figure in a hip hop track to fade to the background in such a way as to be barely recognisable. The additional elements were deemed enough to turn ‘Nur Mir’ into an independent work according to § 24 (1) UrhG.

Rhythm vs Melody

Fans of Stomp or will be disappointed to learn that a rhythm section does not qualify as a melody for the purposes of § 24 (1) UrhG. Unequivocally rejecting musicologist definitions as too vague and nondescript, the OLG judges reiterated the case law definition of melody as a ‘self-contained and ordered sequence of notes’ (‘in sich geschlossene und geordnete Tonfolge’). § 24 (2) UrhG does not preclude the borrowing of harmonies, rhythms, original instrumentations or special sound effects because such features do not constitute a melody. They held that the short sequence from ‘Metall auf Metall’ was a ‘rhythm surface’ (‘Rhythmusfläche’) comprised of overlapping ‘shreds of notes’ (‘Notenfetzen’). The result may be original and attract copyright protection as a musical work, but it is not a melody. The court also mentioned that § 24 (2) UrhG is a very controversial piece of legislation anyway and as such should be interpreted narrowly.

Possibility of Producing a Sound-Alike

So far so good for the defendants, but their case dies here. The BGH did not provide any guidance as to the criteria that should be met to find for a possibility of producing a sound-alike, so the OLG came up with its own definition. Given that ‘Nur Mir’ was produced professionally and for commercial purposes, the skills and technological possibilities open to a music producer with average equipment are decisive; the reference point is the time when sampling took place (1997 in the case at hand).

According to the OLG, it is not necessary that the sound be identical, but that it would be regarded as equivalent by prospective consumers that are familiar with and possess a certain amount of sensitivity for musical issues without being extraordinarily exacting. Expert witnesses managed to produce an equivalent sound-alike to the ‘Metall auf Metall’ sequence in less than two days. The court held that this was a reasonable amount of time to ask before permitting someone to encroach upon another’s rights without having to seek permission and free of charge. The judges were not entirely certain whether they got these criteria right, though, which is why they granted leave to appeal on legal grounds to the BGH once more.

Conclusion

It strikes me as a bit odd that it constitutes an infringement of neighbouring rights if something that may easily be replicated is sampled, but if something very elaborate that is difficult or impossible to replicate (and probably more original) is sampled, that’s OK. What do you think, dear readers?