1709 Blog: for all the copyright community

Thursday, 5 March 2015

Dentist Claiming to Own Copyright in Patient’s Negative Comments about Her Misused Copyright Law

Ben mentioned yesterday in his post this case about a dentist using copyright to suppress speech. Going to the dentist is not particularly pleasant, but, at least, one does not usually expect to have to consult a copyright attorney before sitting in the chair.

However, patients of a Manhattan dentist had to sign, before being able to receive any treatment, including emergency treatment, a confidentiality agreement which assigned to the dentist and her dental practice a copyright over any comments made about her or her practice.

One of these patients was not satisfied by Defendant’s dental services and wrote about his dissatisfaction on Yelp and other sites allowing users to comment about services. According to the complaint, Defendant unsuccessfully asked these sites to remove Plaintiff’s comments, sent Plaintiff invoices purporting to charge $100 per day for the posting of these comments, and threatened to file a copyright infringement, breach of contract, and defamation suit if the comments were not removed from the sites.

Several of the dentist’s patients filed a class action suit in November 2011 in the Southern District of New York (SDNY), claiming that, even if Defendant does indeed own the copyright in these comments, they were not infringing under the fair use defense of Section 107 of the Copyright Act. Defendant moved to dismiss but the motion was denied on March 27, 2013, by Judge Paul A. Crotty from the SDNY.

On February 27, 2015, Judge Crotty rendered a default judgment in favor of Plaintiff. The case is Lee v. Makhenevich, 1:11-cv-08665 (SDNY).

For Judge Crotty, the comments posted by Plaintiff were not infringing as they were fair use. Also, for the SDNY,

“[o[btaining the promise by plaintiff… in the [m]utual [a]greement to [m]aintain [p]rivacy… not to publish criticism of defendants, the [a]greement's purported assignment of copyrights, and the assertion of copyright claims by defendants for the express purpose of preventing the dissemination of [plaintiff]’s [c]ommentary, constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.”

Judge Crotty also ruled that

“[Plaintiff]’s  assignment and promise in the [a]greement not to publish criticisms of defendant… are null and void for lack of consideration… [that Plaintiff]'s assignment and promise in the [a]greement not to publish criticisms of defendants are null and void for unconscionability… [that] [t]he [a]greement is a deceptive act or practice in violation of Section 349(a) of the New York General Business Law… and [that] [Plaintiff’]'s [c]ommentary is not actionable defamation under New York common law. “

I will only write about the copyright issues in this case.

Using Copyright to Suppress Speech

This case is interesting because it is a textbook example of a case where a party is using copyright to attempt to suppress speech.

The agreement signed by Plaintiff read, in part, that in consideration for the dentist to agree not to provide any lists of patients or personal information to any marketing companies, the patient would “assign… all Intellectual Property rights, including copyrights, to Dentist for any written, pictorial, and/or electronic commentary.” The agreement claimed that dentists are able to provide such information to third parties because of a “loophole” in HIPAA, the federal medical data privacy law, and added further that “Dentist feels strongly about Patient’s privacy as well as the Practice’s right to control its public image and privacy.” The agreement would last five years from the date of the dentist’s last service to the patient, or three years after the termination of the dentist-patient relationship.

HIPAA, however, forbids covered entities, such as MDs and dentists, from disseminating patient information for marketing purpose, so there is no need for such agreement to protect patient’s privacy.  The complaint argued that, since there are no “loopholes” in HIPAA, the assignment was null and void for lack of consideration. Judge Crotty agreed.

In his March 2013 order, Judge Crotty referred to all these actions as “aggressive and threatening conduct.” Indeed they were.

After Plaintiff had published negative comments on both Yelp and DoctorBase, he first received a letter from “North East PC/Attn Urgent/Legal” [catchy title, eh?] threatening him with a $100 000 lawsuit because he had violated the agreement. The letter, signed “Corporate Practice”, informed Plaintiff that the letter “shall serve [him] as the only notice prior to litigation” and contained a draft of a complaint which appeared ready to be filed, if the Plaintiff did not comply with the letter’s demands. The office of the dentist also sent Yelp and DoctorBase DMCA takedown notices, telling them that the dentist owned the copyright in the comments and asking them to take the comments down.

On October 17, 2011, Plaintiff received a letter from Defendant’s attorney, which stated that his comments posted online included damaging inferences which denigrate, defame, and cast aspersions upon the dentist and the dental office” and that “according to The Ethics of Medical Justice / Dental Justice Agreements, under the Code of Internet Ethics, your comments are not considered constructive commentaries but rather as personal attacks to the office's well-being and reputation.” Medical Justice is the company which had written the agreement used by Defendant. The Center for Technology and Democracy filed a complaint in November 2011 with the Federal Trade Commission asking it to investigate Medical Justice, and the company has since stopped proposing such agreements to dentists and MDs.  

Copyright Registration

But after having claimed that the comments infringed her copyright, and after having threatened to sue Plaintiff for copyright infringement, Defendant argued that there could not be a copyright infringement suit at all. In her memorandum of law to support her motion to dismiss, Defendant had claimed that the suit had to be dismissed because a copyright registration is a pre-requisite to any copyright infringement suit, but that Defendant had not registered her copyright in the comments.
Judge Crotty noted though,  in his March 2013 order,  that Plaintiff does not claim that his own copyright has been infringed, but, rather, that his comments “about Defendants' hardly defensible practices are subject to copyright protection. Defendant’s argument that the copyright must be registered before relief turns the law upside down.”

Fair Use

Instead, Plaintiff claimed that “non-commercial use of copyrighted materials for criticism and comment is a paradigmatic fair use that is not infringingand that “[t]he posting of [his comments]… can have no effect on their potential market or value because no such value exists.” On February 27, Judge Crotty agreed on that point.

Plaintiff also sought a declaration that the agreement’s promise not to publish criticisms, the purported acquisition of copyrights in the comments, and the assertion of copyright claims, constituted breaches of fiduciary duty, violations of dental ethics, and were subject to the equitable defenses of unclean hands and copyright misuse.

Judge Crotty agreed with Plaintiff on these points as well, and awarded him $4,766 in damages. 

Wednesday, 4 March 2015

THE COPYCAT - takedowns, takeaways and turnarounds

Is Aereo on the way back? Eight months after losing its legal battle with television networks, the failed watch-TV-on-the-Internet startup held an auction for its assets - and interestingly its trademarks and customer list, which went to TiVo for the bargain price of $2 Million.  What could TiVo do with these assets?  Well on Forbes Bill Rosenblatt suggests this: "Here’s an intriguing possibility: TiVo could be looking into offering an Aereo-like service but one that’s licensed by TV networks".

German-based Total Wipes Music Group hit the news recently after issuing a number of mistaken (and in hindsight rather ill judged attempts) to remove entirely legal content published by the likes Walmart, Ikea, Fair Trade USA and Dunkin Donuts using the DMCA takedown procedure - to seemingly protect content it manages. The company apologised on its Facebook page on 23rd February saying: "Due to technical servers problems on the first February week our script sent hundreds DMCA to hundreds domains not related at all any copyrights of our contents. It was our fault, no doubts about it. The DMCA is a serious issue and it must be carefully managed. We contacted most of these domains but it was too late, the DMCA had already been sent. Google rejected most of these wrong DMCA but we totally understand the damage of it for small and medium companies that have to remove and manage them manually. It was a bug just on that week. However, our Antipiracy system has been taken down a week ago in order to add more improvements and avoid any future sending of wrong DMCA. Our apologies again for all sites involved and thanks to all persons that reported us the issue. However, it seems a glitch happened again, this time in the form of a attempt to protect an album called "Cigarettes" on the Mona label - which ended up targeting  an article on how use PGP on the Mac - published by none other than the EFF - which was a duly removed by Google. But TorrentFreak has an interesting take on this - and apart from amending legislation to allow for habitual abusers of the DMCA and other notice systems to be banned - shouldn't those who issue mistaken takedown notices be subject to damages - and criminal charges? With the headline "Monopoly Fraudsters Need To Go To Jail With Heavy Damages, Torrent Freak opines: "It’s a complete mystery why this isn’t a criminal behavior. The fact that it isn’t is why it continues and harms innovation, creativity, free speech, and the Internet. The Swedish Pirate Party had a very clear policy on crimes like this: if you lied about holding an exclusive right to something, the same penalty that would have applied to an infringer of that exclusive right would instead apply to you. This is only fair, after all: you are infringing on the distribution of a creative work by dishonest means. For repeat offenders, or organizations that committed this crime on a commercial basis or commercial gain, like that idiot record label in the TorrentFreak story – they would be declared criminal organizations and have all their assets seized. The individuals doing so for commercial gain would go to jail for a couple of years". The Total Wipes website currently says this" The Public Area of this website is undergoing upgrading works. We apologise for any inconvenience caused. Thank you for your patience.

MegaUpload founder Kim Dotcom has returned to court in new Zealand in an attempt secure more of the monies seized when his former company was shutdown by US authorities in 2012. Prosecutors in America, and the US music and movie industries have argued that, if their civil litigation against MegaUpload is successful, that money will be needed to pay damages to copyright owners. Dotcom had been granted around $15,000 a month from funds seized in New Zealand to cover living costs, Dotcom now says he is "broke and destitute", and needs to increase his monthly allowance to $152,000, plus extra monies to cover legal fees of up to $3 million. His New Zealand legal team quit last year because over unpaid fees and the court is bound to ensure the Mega founder's new legal reps can be paid as he continues to fight efforts by the US to extradite him to face charges of criminal copyright infringement there.

In the U.S. a picture by Robin Morris which was previously exhibited at the Trunbull Library has been removed amidst claims that bogus worries about copyright were being used to censor the work by those who objected to the painting on religious grounds - not least because the painting contains a reppresentation of Mother Teresa alongside several famous women in history, including Margaret Sanger - the birth control activist, sex educator and founder of Planned Parenthood. The Library said they were not insured against claims of copyright infringement, and explained the take down saying "In recent weeks, independent organizations have alleged potential copyright infringement with the use of Mother Teresa’s image in one of the pieces of artwork”. The Gallery also said it was concerned it lacked covef for any potential liability should the paintings be damaged, stolen or destroyed. The Town's first Selectman Tim Herbst said “After learning that the Trumbull Library Board did not have the proper written indemnification for the display of privately-owned artwork in the town’s library, and also being alerted to allegations of copyright infringement and unlawful use of Mother Teresa’s image, upon the advice of legal counsel, I can see no other respectful and responsible alternative than to temporarily suspend the display until the proper agreements and legal assurances are in place,” adding. “I want to make it clear that this action is in no way a judgment on the content of the art but is being undertaken solely to protect the town from legal liability based upon a preliminary opinion from the town attorney.” The owner of the pictures, Richard Resnick, recently has sent the Library and the Town an email, stating the Town would not be responsible for any legal action or damage to the paintings. More here.

A U.S. dentist who used a privacy agreement to assert a copyright claim over a peeved patient's review of his practice to try and censor critiism online has lost a court case. The patient, who claimed he had been over charged and that the dentist had "screwed up submitting his claims to his insurer", has now been awarded $4,766.00 after a default judgement by a U.S. District Court in the Southern District of New York. The Judge said that no copyrght claim could be made as the review was fair use, and held that the prohibition against negative criticism, along with the use of copyright claims to prevent the review from being seen constituted  "breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.” More here and the judgment here.

Rappers Wu-Tang Clan have set up a website to run the auction for their album, 'Once Upon A Time In Shaolin' whioch has been released with a single pressing of the 31 track, 128 minute record - the person places the highest bid will buy the lone CD and the box that contains it. And according to the record's producer Cilvaringz, after a 88 year holdback - the owner of the physical CD will be assigned the copyright in the recording as well and could choose to release the album. Cilvaringz told Forbes: "After 88 years the copyright, which includes public and commercial rights, automatically transfers to the owner of the work. [But] it will still be his or her choice at that [point] to release it or not release it". This week 200 people attended the sole public airing on the album at in a heated dome outside New York's MoMA PS1. Guests and journalists were forced to put their cell phones in plastic bags at the front desk to avoid the 13-minute album excerpt from leaking.  According to Wu-Tang leader the RZA, bids have reached $5 million.

Tuesday, 3 March 2015

Copyright Law and More

Copyright Law and More is the catchy title of a special course that will be running at UCL, University of London from Monday 18 May to Friday 22 May 2015. The venue is UCL's lovely and historical Faculty of Laws building, Bentham House, Endsleigh Gardens, London WC1H 0EG.

Billed as a CPD Course Meeting the Legal Needs of the Creative Industries of the 21st Century, it is organised by UCL's Institute of Brand and Innovation Law (IBIL) and the course convenor is our old friend and one of the original team of 1709 Bloggers, IP consultant Amanda Harcourt.

Full details of the programme, the faculty, the massive CPD haul (and the cost: is that why it's called "Copyright Law and More"?) just click here.

A picture of perplexity in the Museum of Brands

Attending a British Brands Group reception in London's fascinating Museum of Brands this evening, I had the pleasure of meeting its founder, the legendary Robert Opie (right). Robert was expressing his concern that thoroughly accurate photographs which he had taken of (presumptively out-of-copyright) advertisements, and which he has used in his books, had apparently been reproduced without authorisation by a third party which was now selling the copies.

Together with veteran intellectual property barrister Christopher Morcom QC, I found myself trying to explain to an increasingly incredulous Robert the circumstances in which a photograph of an advertisement might -- or might not -- either constitute an infringement of copyright or be an original work in its own right, and when another person might be able to make use of it for his own purposes. I told him about cases such as Bauman v Fussell and Temple Island v New English Teas (the celebrated "Red Bus" case) and it occurred to me that I was describing things that seemed quite normal to me because I have lived with them for my entire professional life while they seemed astonishing and arbitrary to Robert because they didn't accord with what he felt was common sense and what he knew to be the way people do things in real life.

Robert was particularly surprised to discover that copyright notices in published works did not have the force of law and that, even though they stated with absolute clarity that no one was allowed to store, reproduce or do anything else with a work, this was not actually what the Copyright, Designs and Patents Act 1988 says.

In the end, Robert appealed to us and asked: "Is there a slim book -- and I mean a slim book -- that just says clearly and simply what the legal position is?"  Offhand I couldn't think of one, but it occurred to me that some of the readers of this weblog who are not lawyers but have to take legal decisions might have some suggestions or preferences.  If so, please post them below and I'll be happy to forward them to Robert.

Thursday, 26 February 2015

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

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

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

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

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

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

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

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

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

Monday, 23 February 2015

The CopyKat - trolling tonight

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

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

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

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

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

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

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

Saturday, 21 February 2015

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

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

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

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

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

First Fair Use Factor: Purpose and Character of the Use

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

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

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

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

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

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

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

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

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

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

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

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

Fourth Fair Use Factor: Effect on the Market

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

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

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

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

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

Friday, 20 February 2015

Australians consult on "VCAP" system

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

As set out in their press release here:

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

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

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

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

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

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

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

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

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

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

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

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

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

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