1709 Blog: for all the copyright community

Monday, 31 August 2015

Art Imitating Life?


"The bad gains respect through imitation, the good loses it especially in art" - Friedrich Nietzche



While all art, however good or bad it is, qualifies for copyright assuming that it is original, in many jurisdictions (for instance France and Germany) photography has to meet a certain standard before it can gain the same sort of protection as its fellow artistic works. This was amply demonstrated in the French case of the Jimi Hendrix portrait reported on by Marie Andree here. Even in the USA, the famous case of Bridgeman Art Library vs Corel Corp introduced a caveat when deciding if a photograph per se qualified for copyright protection. The objection rests on the fact that, ordinarily, the camera just records what is in front of it in a mechanical way, much as a photocopier might do. To overcome this objection the photographer may, in some cases, need to demonstrate some special input in the form of choices he or she made over lighting, point of view, cropping etc in order to make the work 'original'. By these criteria most photojournalism would fail to make the grade, and photographic artists of the calibre of Henri Cartier Bresson might well be dismissed as mere snappers, simply because they recorded the scene at the decisive moment. 

 "Photography is not like painting,  There is a creative fraction of a second when you are taking a picture. Your eye must see a composition or an expression that life itself offers you, and you must know with intuition when to click the camera. That is the moment the photographer is creative,  Oop! The Moment! Once you miss it, it is gone forever."  Henri Cartier-Bresson quoted in the Washington Post in 1957.

So it is more than a little ironic that we hear of yet another case of a painting which is a direct copy of a photographic work, which some might term photo reportage. And if the copying had not been spotted, this painting would have been accepted as an original work in the Infopaq sense of being a creation reflecting the spirit and personality of the author, while the work which the artist copied might well have failed to impress the French courts (per the Jimi Hendrix case) as being worthy of copyright.

The latest case concerns a portrait by artist Perry Milou of Pope Francis officially commissioned for the Pope's forthcoming visit to the USA, which it has been revealed is entirely based on a photograph taken by Italian photographer Franco Origlia, to which Getty owns the rights. 

This comes only a few months after the Luc Tuymans case in Belgium and 3 years since the Shepard Fairey Obama Hope poster case, in which the respective artists were found to have infringed the work of photographers.


Whoever coined the phrase, imitation is the sincerest form of flattery clearly wasn't a copyright lawyer.

Thursday, 27 August 2015

Copyright Literacy: an update on an imaginative initiative

Here's a guest post from Chris Morrison (Copyright and Licensing Compliance Officer at the University of Kent, Canterbury), which brings us up to speed on an initiative to which this weblog was able to give some small assistance:
Following the notification of the launch of the UK Copyright Literacy Survey in December 2014, Jane Secker from LSE and Chris Morrison from the University of Kent would like to inform readers of 1709 Blog of the survey results and explain their ongoing mission to make copyright engaging, fun and empowering.

The UK Copyright Literacy Survey was part of an international project to explore levels of copyright knowledge amongst library, information and related professionals and is the largest known study of its kind. Thanks to the high level of engagement amongst those in libraries, archives, museums and cultural institutions in the UK we received 613 responses, meaning that our survey had the biggest response out of any of the other participating countries so far. We have published a high level summary of the results and in essence it seems that UK library and information professionals have a relatively high level of copyright literacy compared to other countries. However they still feel they would like to know more about how copyright relates to their day to day responsibilities, and expressed a certain amount of anxiety in keeping up with developments in copyright law and responding to copyright concerns.

We have also recently written a blog post for CILIP explaining why we think copyright education is a fundamental part of digital and information literacy. Digital and information literacies are skills, attitudes and behaviours that allow people to find, evaluate, manage and use information and digital technologies to achieve their personal and professional goals. At the heart of this is an understanding of the ethics surrounding how information can be shared and used. Our blog post mentions the Copyright Card Game that we developed in conjunction with copyright consultant Naomi Korn which is now available as a free, Creative Commons-licensed download from the open education resource repository Jorum. The game has proved very popular with information professionals in higher education and seems to be generating a renewed interest in copyright.

If you would like to read more about the survey and our copyright literacy mission we have posted our slide deck from July’s Northumbria Conference on Performance Measurement in Libraries and will be presenting at the European Conference on Information Literacy in October. We are also expecting to have a paper published in a special copyright/IPR issue of Library and Information Research in September/October 2015.

We would be very interested to hear from anyone who is interested in our research, or feels the same way about the empowering potential of copyright education and would like to join forces. You can send us an email via copyright@kent.ac.uk.

Another consultation from Brussels- anyone for SatCab?


In case anyone [other than the author] was under the impression that the European Commission closes entirely for August and goes en masse on holiday, you are mistaken.

Just to keep us on our toes, the Commission has this week published the latest in a series of consultations arising out of its Digital Single Market initiative (which Eleonora previously covered on 1709 here as well as on the IPKat here).

This time, the topic on the card is 1993's SatCab Directive, or to give it its full title "Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission"

It is, like last year's copyright consultation, a "fill in the box" online questionnaire - the latter, you will recall, created a torrent of thousands of responses generated by interest groups, especially from the "anti-copyright" community.

This topic is likely to be of much more limited interest, focusing as it does on practical experience arising out of the existing Directive.  However, it too has potentially broad implications.

The first part looks at the two core existing sets of provisions in the Directive, first the principle of country of origin for the communication to the public by satellite, then the management of cable retransmission rights.

However, the latter part of the questionnaire extends into the question of whether it might be possible to extend the "country of origin" principle to cover other types of exploitation beyond satellite - including a number of different scenarios:

  • "TV and radio transmissions by other means than satellite (e.g. by IPTV, webcasting)"
  • "Online services ancillary to initial broadcasts (e.g. simulcasting [note to Brussels - precisely how is this something different from the first category of TV and radio transmissions by other means..."], catch-up TV).
  •  Any online services provided by broadcasters (e.g. video on demand services [note to Brussels - is that video on demand services other than catch-up which is in category 2?]).
  • Any online content services provided by any service provider, including broadcasters. [so a VOD service provided by a broadcaster is to be considered different from one provided by a cable operator which is different again from one provided by an internet only business like Netflix... as a matter of copyright?]

As indicated by the asides above, this blogger has some concerns about whether the Commission will be able to define the way forward, given that it appears to have a limited understanding of the technologies involved in modern audiovisual world.   

The Commission also asks some questions which are potentially fiendishly complex, such as "How would the "country of origin" be determined in case of an online transmission? Please explain."

Well now is your chance to influence them and answer all of these questions... the questionnaire (in English, French and German) can be found from this introductory page.

PRS for Music begins legal action against SoundCloud

PRS for Music has written to it's members saying it is beginning legal action against online music streaming platform SoundCloud after "five years of unsuccessful negotiations". The PRS says:

"SoundCloud actively promotes and shares music. Launched in 2008, the service now has more than 175m unique listeners per month. Unfortunately, the organisation continues to deny it needs a PRS for Music licence for its existing service available in the UK and Europe, meaning it is not remunerating our members when their music is streamed by the SoundCloud platform.". The PRS letter goes on to say: "We have asked SoundCloud numerous times to recognise their responsibilities to take a licence to stop the infringement of our members’ copyrights but so far our requests have not been met. Therefore we now have no choice but to pursue the issue through the courts."


The letter explains that whilst SoundCloud has taken down some of PRS repertoire,  a recent list of some 4,500 musical works which the PRS say were being made available on the service and which they were asking SoundCloud to licence  or remove resulted in this: "SoundCloud decided to respond to our claim by informing us that it had removed 250 posts. Unfortunately, we have no visibility or clarity on SoundCloud’s approach to removing works, so it is not currently clear why these particular posts have been selected by them given the wider issue of infringement that is occurring. Ultimately, it is SoundCloud’s decision as to whether it starts paying for the ongoing use of our members’ music or stops using these works entirely."
   
The letter from Karen Buse, Executive Director, Membership and International at PRS for Music, ends by saying "We remain hopeful that this matter can be resolved without the need for extended litigation. Members will appreciate that this is now a legal matter and our ability to communicate around it is therefore limited by the legal process. However, we will try to share information and updates whenever we can."

SoundCloud has issued its own statement responding to the letter saying: “It is regrettable that PRS appears to be following this course of action in the midst of an active commercial negotiation with SoundCloud. We believe this approach does not serve the best interests of any of the parties involved, in particular the members of the PRS, many of whom are active users of our platform and who rely on it to share their work and communicate with their fanbase.”


“SoundCloud is a platform by creators, for creators. No one in the world is doing more to enable creators to build and connect with their audience while protecting the rights of creators, including PRS members. We are working hard to create a platform where all creators can be paid for their work, and already have deals in place with thousands of copyright owners, including record labels, publishers and independent artists.”

SoundCloud's content is currently uploaded by creators, marketing companies, record labels and even music publishers - and  whilst the PRS letter notes "When a writer or publisher becomes a member of the Performing Right Society, they assign certain rights to their works over for us to administer, so it’s our job to ensure we collect and distribute royalties due to them" this move certainly may irritate some of the PRS's own membership who see a real value in SoundCloud. A court case would almost certainly look at the European take on 'safe harbours' and how SoundCloud's take down policies would fit with that - but going forwards, and if SoundCloud is going to adapt to a streaming model more akin to Spotify, its hard to see why it would want a war with the PRS at this juncture.

The letter can be found here - an interesting analysis on MusicAlly here, and more comment and thoughts on Music Business Worldwide here - not least on the position of Warners Music Group and Universal Music here - presumed equity holders in SoundCloud - but through their publishing divisions - members of PRS for Music as well. 

Wednesday, 26 August 2015

UK-China Copyright Week: can it deliver, and will it?

You may not have realised it -- and this blogger certainly didn't -- but next week is UK-China Copyright Week. It's only a five-day week rather than the conventional seven-day variety, possibly on account of the shrinkage in China's economy, but it's a sweet idea anyway. The UK IPO's media statement below says it all:
Firms from the UK’s world-leading creative industries sector will travel to China, with officials from the UK Intellectual Property Office, to strengthen relations with Chinese counterparts. UK-China copyright week takes place from 31 August to 4 September 2015 and is the latest in a series of high level international events to promote and protect intellectual property across borders. The UK Intellectual Property Office has coordinated a week long programme of events in conjunction with the National Copyright Administration of China (NCAC).

Headed by Dr Ros Lynch, the UK IPO’s Director of Copyright and Enforcement, the delegation including representatives of the UK’s world class creative industries will participate in events in Beijing, Hangzhou and Shanghai. They will share best practice on key areas of reform such as collective licensing, extended collective licensing, broadcasting & related rights, orphan works, copyright enforcement, enforcement of other IP rights and to engage with copyright creators and owners from both the UK and China [do we even know what best practice in all these fields is?]
...

Copyright underpins success in publishing and all other creative industries. UK physical book export sales to mainland China increased 6% to £57 million in 2014 and it is vital that we create an environment to protect this market and foster future growth [it will be interesting to see how this growth can he sustained and protected, given that the purchase of foreign copyright-protected material is presumably going to be much more expensive following China's currency devaluations].

China is a key trading partner for the UK and a market of enormous potential for the creative industries. China has the fourth largest TV market in the world and the third largest radio market. China has seen a boom in its online entertainment sector and is likely become one of the world’s top 10 music markets over the next few years. The Chinese broadcasting industry is estimated to grow strongly over the next 5 years to over US $11.5 billion (estimated £7.3 billion) there is still tremendous potential for further growth [one wonders whether this figure will need to be revised downwards in light of the recent slump in China's economic performance].

China’s copyright law is currently being revised across a range of areas including: digital environment & internet service providers; sound recordings & public performance rights; works of applied art ownership provisions for films; limitations & exceptions (in particular regarding software); orphan works; compulsory licences & collective management; exercise of rights; droit-de-suite/artist resale right; technological protection measures; and civil infringement and administrative enforcement.

Copyright Week will provide a unique opportunity for businesses and policymakers from both countries to engage directly with government officials and discuss these revisions in depth. Discussions will aim to maximise the benefits of an effective copyright regime.
This blogger is very fond of international cooperation, but he also wonders how the benefit -- if any -- of events such as this will be measured and whether the funds expended in participation in this week could not have been put to better use by his servants in the UK IPO.

Tuesday, 25 August 2015

The CopyKat - courtesy of the red, white and blue

Photographer Art Dragulis  probably thought he had an open and shut case when he found out the Kappa Map Group had been using one of his shots of rural Maryland on the front cover of a street atlas of Montgomery. Except .... maybe he had forgotten  that when he uploaded the shot to the photo sharing site Flickr he did so under a Creative Commons licence  which allowed commercial use of the photo in exchange for attribution; Plaintiff alleges that defendant infringed his copyright in the photograph because it “copied Plaintiff’s work and made derivatives of the work without Plaintiff’s authorization in violation of 17 U.S.C. § 501.” Id. ¶ 22. But plaintiff uploaded the photograph to a public photo-sharing website, where he did not assert exclusive rights to his copyrighted image, and he instead opted to license the work and make it available for use by others without compensation. TechDirt says "The final opinion notes that Dragulis seems upset with what happened but can't really blame anyone but himself for the outcome."


As the CopyKat noted in an earlier posting in relation to the use of copyright laws in 'revenge porn' cases, the hacked extramarital dating service Ashley Madison is trying to prevent dissemination of its stolen database and other information by sending DCMA copyright takedown notices to social networks and file-sharing sites. It's only been partially successful so far - not least as there are 33m user records posted online - a huge volume. Some takedowns have worked - but some have not,  because platforms such as Twitter have resisted some DCMA claims. Joseph Cox, a writer for technology site Motherboard, reported that a copyright takedown notice was filed for three of his tweets, each of which contained screenshots of information contained within the Ashley Madison breach: One takedown was implemented But the company disagreed with Ashley Madison over the infringing nature of the other two tweet.


Mayor Butts
A federal judge in Los Angeles has told the city of Inglewood  that it can't try to silence a critic of Mayor James T. Butts Jr.(left) by asserting copyrights over the official videos of City Council meetings. U.S. District Judge Michael W. Fitzgerald's decision made it clear that the the state legislature has severely limited the ability of local governments and other public entities to copyright the materials they create - and - even if Inglewood could copyright the videos, the use by local resident Joseph Teixeira criticising the Mayor would be covered by fair use. Image of Mayor Butts by Melanie McDade. 

The Attorney Registration and Disciplinary Commission (ARDC) of Illinois, USA, has filed a complaint against John Steele, one of two lawyers believed to be the masterminds behind the Prenda Law 'copyright-trolling' scheme. In the seven count complaint, ARDC asks for a panel hearing and a disciplinary recommendation, which will be transmitted to the Illinois Supreme Court. That court has the power to suspend and disbar attorneys. More on ArtsTechnica here.

The former owner of a major file haring site, one Rocky P. Ouprasith, has said he was not the operator of a new version - not least as he was busy being investigated fir piracy, finally pleading guilty to one count of copyright infringement. Ouprasith's attorney Bobby Howlett Jr. told reporters that his client - who was behind  RockDizMusic.com and RockDizFile.com - was not behind RockDizMusic.tv saying: “I can assure you my client is not still doing what brought him in front of the judge”.  The Recording Industry Association of America, a trade organization that represents the recording industry, said RockDizFile emerged in 2013 as the “second largest online file sharing site” specialising in pirated music. Press comments say Ouprasith should expect a prison sentence.


And finally - two non U.S. updates - but both from the UK so still some red, white and blue in there somewhere! Firstly, PRS for Music confirms it has agreed a new two year multi-territory European licensing deal with music streaming and subscription service, Spotify. Continuing the ongoing relationship between the pair, the recent deal allows the music streaming and subscription service to continue to offer its users a vast bundle of repertoire in the UK and Ireland (including repertoire from over 100 affiliated societies from around the globe), plus PRS for Music’s and Eire based IMRO’s direct members’ repertoire across Europe. The repertoire PRS for Music licenses to Spotify across Europe further includes musical works represented by a growing number of IMPEL publishers. IMPEL currently represents the rights of 40 leading independent publishers, a number that is anticipated to grow further before the end of the year.

And lastly, the City Of London Police's IP Crime Unit – (PIPCU) – has to date requested that domain name registrars suspend 317 pirate sites, according to Torrentfreak, which confirmed the numbers from a UK Freedom of Information request. In addition to targeting domain registrars, PIPCU also told Torrentfreak that it had sent warning letters directly to the operators of 377 piracy websites, all of which had been referred to the policing unit by entertainment industry trade groups. How successful either of these initiatives are remains to be seen. Image from www.123rf.com 


Courtesy of the Red, White & Blue (Toby Keith): "Oh, justice will be served and the battle will rage / This big dog will fight when you rattle his cage / And you'll be sorry that you messed with the U.S. of A. / 'Cause we'll put a boot in your ass, it's the American way."

Monday, 24 August 2015

PRS announces new two-year Spotify deal

Here's some hot-off-the-press news from the wonderful world of collective copyright management. UK-based PRS for Music has confirmed that it has agreed a new two-year multi-territory licensing deal with Swedish music streaming and subscription service Spotify. According to a media release from PRS earlier this afternoon:
"Continuing the ongoing relationship between the pair, the recent deal allows the music streaming and subscription service to continue to offer its users a vast bundle of repertoire in the UK and Ireland (including repertoire from over 100 affiliated societies from around the globe), plus PRS for Music’s and IMRO’s [Irish] direct members’ repertoire across Europe.

The repertoire PRS for Music licenses to Spotify across Europe further includes musical works represented by a growing number of IMPEL publishers. IMPEL currently represents the rights of 40 leading independent publishers, a number that is anticipated to grow further before the end of the year.

The new deal is part of PRS for Music’s continued commitment to support and licence streaming services to ensure that its members are fairly remunerated for their works".
This blogger is having a little chuckle, recalling the dark cloud cast over the world of music copyright by the emergence of Spotify and the threats it posed, both to the accepted order of things and even to its own investors. Is this the same Spotify we blogged about here in October 2009, here in April 2010?  Incidentally, there's a reasonably good account of the evolution of Spotify from its earliest beginnings on Wikipedia here.

Sunday, 23 August 2015

Cheering news for Cheerleading Uniforms ?

Sixth U.S. Circuit Court of Appeals
The Sixth U.S. Circuit Court of Appeals has issued its opinion on the nature of federal copyright protection that can apply to the outfits worn by cheerleaders in a dispute between the makers of the two outfits illustrated above:  Judge Karen Nelson Moore, who wrote the majority opinion, asked “Are cheerleading uniforms truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks?” and looked at the distinction between the protection the mechanical or utilitarian design aspects of a useful object (that cannot be protected by U.S. federal copyright law) and the artistic elements applied to any useful object (which can): 

[T]he design of a useful article . . . shall be considered a pictorial, graphic, or sculptural work,” and thus copyrightable, “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 

its an area of law fraught with problems (in the UK matters where somewhat clarified by the 'Star Wars' case of Lucasfilms v Ainsworth).

Here in the United States District Court for the Western District of Tennessee at Memphis (No. 2:10-cv-02508)  Judge Robert H Cleland  concluded that a cheerleading uniform is not protected without the distinctive stripes, chevrons, zigzags, and colorblocks, and therefore the claimant's copyrights were invalid. But the Sixth Circuit majority opinion by Judge Moore disagreed. The appellate court likened uniforms to fabric patterns, which can be protected by copyright:

To the extent that [the defendant] contends that pictorial, graphic, or sculptural features are inextricably intertwined with the utilitarian aspects of a cheerleading uniform because they serve a decorative function… we reject that argument. Such a holding would render nearly all artwork unprotectable. Under this theory of functionality, Mondrian’s painting would be unprotectable because the painting decorates the room in which it hangs….It would also render the designs on laminate flooring unprotectable because the flooring would be otherwise unattractive….Finally, holding that the decorative function is a “utilitarian aspect[] of [an] article,” would make all fabric designs, which serve no other function than to make a garment more attractive, ineligible for copyright protection. But it is well-established that fabric designs are eligible for copyright protection…We therefore conclude that a pictorial, graphic, or sculptural work’s “decorative function” does not render it unable to “be identified separately from,” or “[in]capable of existing independently of, the utilitarian aspects of the article.”

Judge David McKeague dissented saying that the uniforms were  not copyrightable  - because the design identifies someone as a cheerleader

“clothing provides many functions, but a uniform at its core identifies its wearer as a member of a group” 

But adding a plea for Supreme Court guidance, or even reform or new legislation, saying:

"The majority takes a stab at sorting it out, and so do I. But until we get much needed
clarification, courts will continue to struggle and the business world will continue to be
handicapped by the uncertainty of the law."

Varsity Brands, Inc., et al V Star Athletica, LLC. (14-5237)

http://blogs.wsj.com/law/2015/08/19/copyright-case-asks-what-is-a-cheerleading-uniform/