1709 Blog: for all the copyright community

Friday, 17 April 2015

The CopyKat - Is Disney skating on thin Ice?


Back in  August last year the CopyKat noted that Disney could be heading to trial over copyright infringement claims involving it's blockbuster animated hit and $1.22 billion grossing "Frozen".  Now that seems to have come about. Back in August, Kelly Wilson, who created a short 2D computer-animated film called "The Snowman", survived the first round in a copyright lawsuit against the company, after a judge noted some key differences between the two films - such as "Frozen" being lighthearted and The "Snowman" not, but also found some similarities. Now Judge Vincent Chhabria has stated that he has a “fairly strong inclination” that a jury should decide whether the Disney official with creative responsibility for the trailer also had access to Wilson’s computer-animated film. Chhabria stated that he will issue an opinion on the two party’s summary judgment motions, but indicated the matter was headed for a jury trial.  Wilson claims that the marketing trailer for “Frozen” directly infringed on her copyrighted film. Wilson’s complaint states that she created "The Snowman" between 2008 and 2010 and that the short was screened at eight film festivals. One of those screenings was at the San Francisco International Film Festival in 2011, where she shared the stage with an employee of Disney’s Pixar Animation Studios, which was also screening a film in the same session. Wilson’s "Snowman" is the story of a snowman who has to race to save his carrot nose from a group of ravenously hungry rabbits after it falls off and slides to the middle of a frozen pond. Wilson claims the 2013 "Frozen" trailer featuring Olaf dashing to save his carrot nose in a race to the middle of a frozen pond with a reindeer is substantially similar to her film. “The storyboards tell an interesting story,” Judge Chhabria said: “I think it’s a story to be told to the jury.”  More here.

The U.S. Court of Appeals for the Ninth Circuit has revisited the issue of a copyright co-owner’s right to grant an exclusive right to a third party, clarified its prior ruling in Sybersound v. UAV, and explained that a copyright co-owner may unilaterally transfer any exclusive copyright interest he or she possesses.  The decision in in the 'Jersey Boys' case which has been covered by this blog here and here: Corbello v. DeVito, Case No. 12-16733 (9th Cir., Feb. 10, 2015) (O’Scannlain, J.) (Sack, J., sitting by designation, concurring in part). The interesing resource for U.S. clopyright decisions, JDSupra,  has the full picture.

UK copyright laws do not provide online content providers with freedom to retransmit TV programmes shown by UK public service broadcasters (PSBs) to fixed-line internet users who could otherwise watch the programmes on TV, the UK government has said. The Department for Culture, Media and Sport (DCMS) said that it is its view that rules contained under s73 of the Copyright, Designs and Patents Act 1988 (CDPA) do not "apply to content transmitted over the internet". The provisions were drawn up to "support the development of analogue cable infrastructure in the 1980s and 1990s" and are now "out-dated", it said. DCMS said that it intends to repeal s73 "at the earliest opportunity" but has opened a consultation on what the "potential implications" of that move would be as part of wider plans to remove existing regulations relating to public service broadcasting. From the ever excellent Out-law.com. The Court of Appeal has of course referred further questions to the Court of Justice of the European Union (“CJEU”) in ITV Broadcasting v TVCatchup (C-607/11) - the second time that the case has been before the CJEU. The Court of Appeal has sought clarification on whether s73 CDPA (the defence for regionalised retransmission of broadcasts by cable) is compatible with Article 9 of the InfoSoc Directive (2001/29/EC) and that it covers streaming of public service broadcasts via the Internet. If you can stomach any thing more on the CJEU on communicating with the 'new public', there's more from Professor Jan Rosen over on the IPKat http://ipkitten.blogspot.co.uk/2015/04/the-cjeu-new-public-criterion-national.html

The latest efforts by the American record industry to force terrestrial radio stations to pay royalties to labels have moved forwards with new proposed legislation in the Congress:  The Fair Play, Fair Pay Act  is backed by four members of the House Of Representatives: Democrats Jerrold Nadler, John Conyers Jr and Ted Deutch and Republican Marsha Blackburn. While AM/FM radio stations do not pay royalties to labels, online and satellite radio stations do, because the Digital Millennium Copyright Act applied a 'digital performing right' to the sound recording copyright. The New Act would  provide for a general public performance right for all sound recordings that are still within copyright in the USA, including per-1972 recordings which a number of digital operators (including SiriusXM) have argued are outside of federal law. More here.

And following on from that, the U.S. Second Cuircuit Court of Appeals will consider whether the owners of pre-1972 sound recordings have performance rights to their songs in an appeal brought by SiriusXM is seeking to appeal the ruling of New York federal judge Colleen McMahon's that denied its summary judgment motion in a lawsuit brought by Flo & Eddie of The Turtles. In her opinion, the judge addressed whether New York law protected public performance and wrote that "acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law — only that they failed to act on it."  SiriusXM is presenting two questions to the 2nd Circuit. First, “Under New York law, do the holders of common law copyrights in pre-1972 sound recordings have, as part of the bundle of rights attendant to their copyright, the right to exclusive public performance?” And Second, “Does the Dormant Commerce Clause prohibit the State of New York from enforcing a property right that it recognizes at common law?” More on the Turtle's actions here.


HBO has blamed Periscope for facilitating mass copyright infringement after four episodes of the new series of Game of Thrones were leaked and widely shared using the service. According to The Hollywood Reporter, HBO has sent takedown notices to Periscope and it's also taken a dig at Periscope for what it implies is a hands-off attitude toward piracy. "In general, we feel developers should have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notifications". Periscope is owned by Twitter and the app  lets users broadcast whatever's around them. Game of Thrones was the most-pirated TV show globally during the last three years.


As the Australian courts ordered Australian internet service providers to reveal the identities of 4,726 internet users who had illegally downloaded ‘Dallas Buyers Club’, there was a massive rise in Google searches for ‘VPN’ : By using VPN services or BitTorrent proxies, user's sharing activities can no longer be linked to their ISP account.

The Fincial Post tells us that the Ontario Court of Appeal has certified a class action allowing the province’s 350 land surveyors to sue the managing corporation of Ontario’s electronic land registry system for copyright infringement. At the heart of the case is the surveyors’ claims that they retain copyright in the surveys they prepare and register. Teranet, who has managed the electronic land registry for the provincial government for 25 years, scans the surveys into digital format and adds the electronic information to its database. Teranet also provides electronic copies of the surveys to system users for a regulated fee but pays nothing to the surveyors. The surveyors claim this infringes their copyright.

And finally from the China IP Newsletter from the IPO, UKTI and British Embassy in Beijing, news that the Chinese State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) has announced new regulatory measures - effective from April 1 - limiting foreign TV shows to a maximum of 30% of content on major streaming platforms. The content of foreign shows will also be subject to stricter supervision and must be pre-approved by SAPPRFT. Pre-launch censorship checks cause distribution in China to lag behind international release dates and have been blamed for increases in online piracy in the country. More here in Chinese.





Thursday, 16 April 2015

CISAC sends open letter to MEP Reda

Creators from all creative sectors and geographic regions have addressed the shortcomings in Pirate Party MEP Julia Reda's draft report on the adaptation of the Copyright Directive. The Report that was published in January 2015, tackled a number of sensitive issues in copyright reform, several of which directly impact creators.

CISAC creators outlined their views on the Report in a letter addressed to Reda and copied to all Members of the European Parliament, on the eve of its discussion by the Parliament. The letter was signed by CISAC’s President Jean Michel Jarre and Vice Presidents Angélique Kidjo, Javed Akhtar, Marcelo Piñeyro and Ousmane Sow on behalf of the nearly four million creators that the Confederation represents. The letter highlights the CISAC's position that Report fails to address market realities for creators and underlines the need for a more balanced system that would take into account the rights of creators and provide fair remuneration for the use of their works.

"We agree that there needs to be a balance achieved between rights holders and the public. But this balance should not be struck at the expense of the increasingly fragile community of creators," wrote the signatories.

The letter questions some of the key proposals, in particular the approach to copyright exceptions and limitations solely from the perspective of user benefits, without considering the impact of so-called "free access" on the economic and moral interests of creators. On the issue of the copyright term, CISAC rejects  Reda’s call for “a duration that does not exceed the current international standards,” effectively meaning a downward harmonisation to a term shorter than what is already available across Europe.

"We would be very interested in seeing the evidence upon which this policy recommendation is based," says the letter.

"Now that digital technologies can help facilitate access to, and preserve our works, forever, an extension seems more justified than ever."

In their conclusion, creators urged Ms. Reda "to do what’s right" by ensuring the future of creators in Europe and supporting "a fairer digital market for creators."     

The letter was sent to MEP Julia Reda and copied to all MEPs who participate in the JURI committee.

That committee is due to commence its discussions on the Report today.

http://www.cisac.org/Newsroom/Articles/Creators-React-to-MEP-Reda-s-Draft-Report-on-Copyright-Calling-for-a-Fairer-Digital-Market-for-Authors

Tuesday, 14 April 2015

IFPI publishes Digital Music Report 2015

The recorded music sector's international trade body, the IFPI, has  published its Digital Music Report 2015, detailing key trends in the recorded music sector over the last year - with the headline news that digital music revenues are now on a par with physical globally, that global industry revenues are marginally down 0.4 per cent to US$14.97 billion in 2014, and that subscription services at the heart of the recorded music portfolio business.

Digital revenues rose 6.9 per cent to US$6.9 billion, representing 46% of all global music sales and underlining the deep transformation of the global music industry over recent years. Total revenues in  2014 were US$14.97 billion although it should be noted that there has been a reclassification of SoundExchange revenues in the US from “performance rights” to “digital”.  This has resulted in an upward adjustment in digital revenues and growth, and an equivalent downward adjustment in performance rights revenues and growth.

The new report shows the industry in continuing transition, with consumers embracing the music access models of streaming and subscription.  Another steep increase in subscription revenues (+39.0%) offset declining global download sales (-8.0%) to drive overall digital revenues, while the number of paying users of subscription services rose 46.4 per cent to an estimated 41 million. Subscription services are now at the heart of the music industry’s portfolio of businesses, representing 23 per cent of the digital market and generating US$1.6 billion in trade revenues.  The industry sees substantial further growth potential in the subscription sector, with new services advancing in 2015 led by three major global players: YouTube’s Music Key, Jay Z’s TIDAL and Apple’s expected subscription service.

Outside of streaming, the Report also shows the enduring nature of the physical format, still 46% of the market, and the still substantial share of digital revenues (52%) accounted for by downloads, although this is declining.  Physical sales still dominate in a number of key worldwide markets including France (57%), Germany (70%) and Japan (78%). On the back of the enws that the UK has launched a new vinyl chart, vinyl sales continue to revive with revenues increasing 54.7 per cent and now accounting for 2 per cent of global revenues.  

Elsewhere in the industry, performance rights income increased by 8.3 per cent and now accounts for 6 per cent of total industry revenues or US$948 million.  Synchronisation revenues increased by 8.4 per cent in 2014 to represent 2 per cent of the market, 
  
The IFPI also try hard to justify artist royalties in the digital age - which without the cost of physical manufacture and distribution are looking more and more favourable to record labels - something that has prompted numerous artistes to take legal action against their labels. The IFPI say "In order to better inform this discussion, IFPI conducted research in 2014 to obtain an accurate picture of how royalty payments have changed as the market has shifted from physical sales to digital channels.  Industry data compiled by IFPI from the three major companies, covering local sales for locally signed artists in 18 major markets outside Japan and the US in the five year period to 2014 shows that while sales revenue fell 17 per cent, total artist payments – in the form of royalties and unrecouped advances – declined much less in real terms (down 6 per cent) and increased significantly as a share of sales revenue, by 13 per cent.  Over the five year period, the data shows that total payments by record companies to local artists totalled more than US$1.5 billion across the 18 markets. But remember,  total revenues in 2014 alone were US$14.97 billion - so its a small small percentage over five years.

The IFPI also coment on rthe very "significant mismatch between the value that certain digital platforms extract from music, and the value that is returned to rights owners." and make  an interesting comparison between the subscriber based services such as Spotify and Deezer, and free access content platforms such as YouTube or Daily Motion.  IFPI estimates music subscription services have 41 million paying global subscribers, plus more than 100 million active users in their “freemium” tiers funded by advertising.  This sector generated revenues to record companies of more than US$1.6 billion in 2014.  By contrast, YouTube alone claims more than one billion monthly unique users and is thought to be the world’s most popular access route to music.  Yet total global revenues to record companies generated by certain content platforms including YouTube amounted to just US$641 million in 2014, less than half the total amount paid to the industry by the subscription services.

To download the full report go to http://www.ifpi.org/digital-music-report.php

The IFPI also released the 2014 Global Charts, with the soundtrack to the motion picture Frozen, Pharrell Willians and Taylor Swift topping the year If you're intersted - here they are:

Global top 10 albums 2014

Rank
Artist
Album
Total units (m)
1
Various Artists
Frozen
10.0
2
Taylor Swift
1989
6.0
3
Ed Sheeran
x
4.4
4
Coldplay
Ghost Stories
3.7
5
Sam Smith
In The Lonely Hour
3.5
6
One Direction
FOUR
3.2
7
AC/DC
Rock or Bust
2.7
8
Various Artists
Guardians of the Galaxy: Awesome Mix Vol. 1
2.5
9
Pink Floyd
The Endless River
2.5
10
Lorde
Pure Heroine
2.0
Source: IFPI. Physical and digital albums included. Streams excluded

Global top 10 digital singles 2014

Rank
Artist
Single
Total sales (m)
1
Pharrell Williams
Happy
                13.9
2
Katy Perry feat. Juicy J
Dark Horse
                13.2
3
John Legend
All of Me
                12.3
4
Meghan Trainor
All About That Bass
                11.0
5
Idina Menzel
Let It Go
                10.9
6
Pitbull feat. Ke$ha
Timber
                  9.6
7
Iggy Azalea feat. Charli XCX
Fancy
                  9.1
8
Ariana Grande feat. Iggy Azalea
Problem
                  9.0
9
MAGIC!
Rude
                  8.6
10
Enrique Iglesias feat. Sean Paul, Descemer Bruno, Gente De Zona
Bailando
                  8.0
Source: IFPI. Units include single-track downloads and track-equivalent streams.

Global Recording Artist Chart 2014

Rank
Artist
1
Taylor Swift
2
One Direction
3
Ed Sheeran
4
Coldplay
5
AC/DC
6
Michael Jackson
7
Pink Floyd
8
Sam Smith
9
Katy Perry
10
Beyoncé




Right of Publicity and Freedom of Speech Clash in Manhattan

This New York Appellate Division case is not a copyright case, but it may nevertheless be of interest to the readers of this blog, as it affirmed the First Amendment right of Defendant, a photographer, over the right to privacy of Plaintiffs’ children, whose pictures were taken surreptitiously using a high powered camera lens and became the subject of an art exhibition. The case is Martha Foster et al. v. Arne Svenson, (2015 NY Slip Op 03068).
Do I See A Privacy Bill?

Defendant Arne Svenson is a photographer. As he explained on his web site, “he has turned outward from his usual studio based practice to study the daily activities of his downtown Manhattan neighbors as seen through his windows into theirs.” The result of this work became the series The Neighbors, which was exhibited in 2013 in New York and Los Angeles, and will be exhibited next year in Denver. Svenson used a telephoto lens, inherited from a bird-watching friend, to take pictures, from his own downtown Manhattan apartment, of people living or working in a  building across the street, without their knowledge, taking advantage of its glass facade and open windows.

Defendant took pictures of Plaintiffs’ minor children, then three and one year old, which became part of the exhibition. Plaintiffs asked the defendant to stop selling these pictures, and defendant took down a picture representing the two children together, but kept offering for sale the picture representing Plaintiffs’ daughter alone. Plaintiffs then sent the gallery a cease-and-desist letter, asking it to take down the pictures from its site and to stop selling them. It complied, but the photographs were shown on several media channels reporting about the exhibition, and the address of the building was also made public.

Plaintiff filed a suit against Svenson, claiming invasion of privacy and intentional infliction of emotional distress. The New York Supreme Court, a court of first instance, denied the claim on August 5, 2013 and granted defendant’s motion to dismiss. Plaintiffs appealed.

New York’s Statutory Right to Privacy

New York State does not does not recognize a common-law right of privacy, and its only privacy statute,  New York Civil Rights Law §§ 50 and 51, is a right of publicity statute. The Appellate Division provides a short history of the New York privacy law in its discussion.

Under § 50, “[a] person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.” § 51 of the statute provides for injunctive relief and damages. As such, the statute only forbids nonconsensual commercial appropriations of the name, portrait or picture of a living person. If the person whose likeness has been appropriated consents to this use, or if the use is noncommercial, then it is not prohibited.

The New York Supreme Court had noted in the Svenson case that “the question… is whether the photographs used by the photographer in a show or as examples of his art qualified as a commercial use or for the purpose of advertising or trade” and that the New York legislature “also sought to protect the constitutional right of freedom of expression.”

Is Selling Art Commercial Appropriation?

The photographs taken by Defendant had been offered for sale. Does that mean that taking them without authorization constituted commercial appropriation? Plaintiffs were arguing that these photographs were bought and sold in commerce. However, the Appellate Division noted that New York courts “have refused to adopt a literal construction [offor advertising purpose” and “for the purpose of trade”] because the advertising and trade limitations of the privacy statute were drafted with the First Amendment in mind.

The Appellate Division also cited its own Nussenzweig v. diCorcia 2007 case, where plaintiff, Erno Nussenzweig, had claimed that defendant, Philip diCorcia, had violated his New York statutory right of privacy when presenting in an art exhibition, and selling to the public, a photograph of Plaintiff taken in the streets of New York. Plaintiff argued that the photographer had made a commercial use of his image. Indeed, diCorcia had grossed about $240,000 from the sale of a limited edition of the photographs from this exhibition, and the photographs had been sold for $ 20, 000 to $30,000 each.

The invasion of privacy action was found to be time-barred in Nussenzweig, but two Justices wrote in a concurring opinion that the artwork “constitutes a matter of general public interest entitled to First Amendment protection.” They noted that plaintiff’s photograph had been published “in both the popular press and art media [which] confirm[ed] that the image is "a matter of legitimate public interest to readers" so as to bring its use within the newsworthiness exception to the privacy statute” and that “the inclusion of the photograph in a catalog sold in connection with an exhibition of the artist's work does not render its use commercial, as plaintiff suggests [because][i]f the image is a matter of public interest, it is immaterial whether that interest is satisfied by viewing the original in a museum, art gallery or private dwelling or by perusing a reproduction in an art magazine or other publication.”

The Appellate Division concurred with the Nussenzweig concurrence. There was no doubt for the court that Defendant’s photographs must be considered works of art, as even Plaintiffs had conceded that Defendant was a renowned art photographer and that he had assembled photographs to present them in an art gallery exhibition.

For the Appellate Division, the fact that Svenson had made a profit from the sale of the photographs does not render the use of the photographs commercial, citing the Stephano v. News Group Publications 1984 case, where the New York Court of Appeals explained that it was the content of the article at stake, but not the publisher’s motive to increase circulation which determines, under the New York privacy statute, whether a particular item is newsworthy, and thus protected by the First Amendment, or merely commercial.

The Photographs are Protected by the First Amendment

New York courts may find that a particular use of someone’s likeness is protected by the First Amendment and is thus outside the scope of New York Civil Rights Law §§ 50 and 51. In our case, the photographs were presented in an art gallery.

The Appellate Division noted that, “[a]lthough the Court of Appeals has not been confronted with the issue of whether works of art fall outside the ambit of the privacy statute, others courts that have addressed the issue have consistently found that they do,”citing as an example the 2002 Hoepker v. Kruger Southern District of New York (SDNY) case, where the court found that that ”a careful weighing of interests” between privacy and freedom of speech is necessary, and must be done by the courts on a case by case basis. This may be particularly difficult if the protected speech is art, as art is not "newsworthy events or matters of public interest” the protection of which prevails over right of privacy, but stated that “New York courts have taken the position in the right of privacy context that art is speech, and, accordingly, that art is entitled to First Amendment protection vis-à-vis the right of privacy.”

Infliction of Emotional Distress?

Plaintiffs had also argued that the photographs had been obtained in an improper manner and thus should not been exempt from being considered as advertising or trade under the statute. They did not, however, cite any authority supporting this position. The Appellate Division took the view that Plaintiffs were thus arguing that “the manner in which the photographs were obtained constitute[d] the extreme and outrageous conduct contemplated by the tort of intentional infliction of emotional distress and serves to overcome the First Amendment protection.”However, the court did not find that Defendant’s behavior had been outrageous, even if the pictures were taken while the children were inside their home, as Defendant’s actions “certainly do not rise to the level of atrocious, indecent and utterly despicable.” Also, the Appellate Division noted that “the depiction of children, by itself, does not create special circumstances which should make a privacy claim more readily available.”

An Appeal to the Legislature

New York, unlike other States, does not have a general invasion of privacy statute, only a right to publicity statute. While the Appellate Division reluctantly affirmed that there was no cause of action for violation of the New York statute, it added that “in these times of heighted threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists.” It remains to be seen if the New York Assembly will hear this plea.


You can also read about this case on The IPKat, in a post penned by Valentina Torelli. 

Image is courtesy of Flickr user cheb.odegaard under a CC BY 2.0 license.