Thursday, 22 February 2018

French Cour de cassation Ruling on Musical Performers' Rights In Audio-Visual Works




                                                                     

                                                                I've changed my mind

On February 16th last, the French Cour de cassation handed down an important ruling relating to performers' rights in the audio-visual sector.

The case involved the rights of musical performers whose performances are subsequently used in audio-visual works.  In this case, the performances were recorded in a studio (not filmed) and then incorporated into the audio-visual work that was then televised.  The studio recording took place in the legal framework of a "feuille de présence" made available by the producer, i.e. each performer signed an attendance sheet that specified that the recording was intended to be used as the soundtrack of an audio-visual work

Some years later, the audiovisual work, including the sound recordings, was marketed as DVDs by the producer.

Taking the position that the marketing of these DVDs required a fresh authorization, SPEDIDAM (a CMO representing performers) brought legal proceedings against the producer.

The trial court held that the issue was to be resolved in light of Section L.212-4 IPC which provides as follows:

"The signature of a contract between a performer and a producer for the production of an audio-visual work constitutes authorization to fix, reproduce and publicly communicate the performance.
Such a conrtact specifies a distinct remuneration for each means of exploitation of the work."

This statutory provision creating a legal presumption in favour of the producer is to be contrasted with Section L.212-3 IPC which provides that the perfomer's authorization is required for such acts with respect to a performer's performance.  SPEDIDAM was arguing that Section L.212-3 IPC (not Section L.212-4 IPC) was applicable.

This trial court's decision was upheld on appeal.  The appellate court took the position that the signature of the attendance sheet was sufficient to constitute an audio-visual production contract and thus make Section L.212-4 IPC applicable (i.e., the presumption applied such that the producer did not require a separate authorization for the DVDs).  For the court, it did not matter that the performances were purely audio, provided that they were made with a view to being incorporated in an audio-visual work.

This positon was initially rejected by the  Cour de cassation in its ruling of 2013.  It held that the attendance sheet could not be characterized as an audio-vusal production contract given that the resultant recording was entirely separable from the audio-visual work.

In accordance with French procedural law, the case was then sent back to a different appellate court which resisted the solution dictated by the Cour de cassation and, like the other lower courts, again held that Section L.212-4 IPC applied.

In its recent ruling, the  Cour de cassation affirmed the appellate ruling and thereby reversed its own 2013 position.  It agreed with the lower courts that the attendance sheet - which clealry indicated the intended use of the sound recording as part of the audio-visual work - constituted an audio-visual production contract within the meaning of Section L.212-4 IPC such that no other authorization was required in order for the producer to market the DVDs.

Link to 2018 ruling here

Link to 2013 ruling here

Wednesday, 21 February 2018

The COPYKAT muses - art for art's sake?

Although Pablo Picasso may have said that “good artists copy, but great artists steal,” copyright infringement can be a serious offence in the art world. The following stories elaborate on recent news that General Motors, the Lollapalooza Music Festival, and the team behind the a new Black Panther film soundtrack have all been sued by artists. This carefully sculpted CopyKat from Kelsey Farish
General Motors sued for featuring graffiti in Cadillac advert without artist’s consent
Adrian Falkner is a Swiss-based contemporary artist famous for graffiti and street art showcasing the many ways of writing letters. Known by his art world pseudonym “SMASH 137,” Falkner’s works have been displayed around the world in various museums and galleries. According to the Kolly Gallery in Switzerland, “among the heroes of graffiti art, SMASH 137 is a pioneer of highest regard.”
In 2014, SMASH 137 participated in an art project called the “Z Garage” in Detroit, Michigan USA.  The Z Garage is a 10-storey parking garage in central Detroit's business district with 1,300 parking spots, and features murals from 27 internationally renowned artists.
Two years later, General Motors (GM) developed and launched an international media campaign to promote its new Cadillac XT5. In several still-image advertisements, Cadillac featured SMASH 137’s Z Garage mural as the centrepiece artistic element.
The campaign was entitled “The Art of the Drive,” which echoes a connection between the vehicle SHASH 137’s mural in question. It was shown on Cadillac’s Facebook, Instagram and Twitter accounts, and is reported to have reached at least 6 million viewers. For a sense of the car model’s popularity, according to sales figures, 13,000 Cadillac XT5 vehicles were sold in the United States during November and December 2016 alone, worth an estimated $500m in revenue for GM.
In a lawsuit filed on 22 January 2018 in California District Court SMASH 137 argues that his mural was used in the advertisements without his knowledge or consent (Adrian Falkner v General Motors, Case 2:18-cv-00549-SVW-JPR). His lawyers explain that GM chose to use SMASH 137’s graffiti mural in an attempt to “attract new young car buyers, and target a young urban demographic.”

By having his mural associated with the automotive giant’s Cadillac advert, SMASH 137 claims that his reputation and career have “been irreparably tarnished,” thereby resulting in diminished value of his work and decreased revenue. The lawsuit explains that while SMASH 137 is highly sought after for commercial collaborations and endorsements, he generally declines “any association with corporate culture and mass-market consumerism,” in part “to preserve the value of his work.”
Accordingly, SMASH 137 is suing for damages and injunctive relief for copyright infringement related to GM’s “misappropriation of his original graphic expression”. He is also asking that the matter be decided by jury.
Interestingly, SMASH 137 also claims that that his prominent signature on the mural was deliberately removed from the advertisements, because “photograph of the mural is taken from an angle that renders the signature not visible.” According to the lawsuit, this conduct constitutes a violation of the integrity of SMASH 137’s copyright management information (“CMI”). CMI includes the title and other information identifying the work, as well as the name of, and other identifying information about, the author of a work.
Under 17 US Code Section 1202(b), “no person shall, without the authority of the copyright owner or the law, intentionally remove or alter any CMI […] or distribute works knowing that CMI has been removed or altered.” Suing under 1202(b) is a lesser-known “double attack” particularly relevant in cases where artwork is signed. In other instances, removing the copyright symbol © may also constitute a CMI violation.
To be guilty of Section 1202(b), the Defendant must have wilfully intended to remove or alter the CMI. SMASH 137 and his legal team assert that GM’s omission of SMASH 137’s signature from the advertising campaign was a deceitful and deliberate attempt to conceal their infringement. If GM are found to have violated Section 1202 wilfully and for purposes of financial gain, the court has the power to demand enhanced damages of up to $500,000, imprisonment for up to 5 years, or both.
LA Artist Sues Lollapalooza for copyright infringement in breach of licence agreement
Juan Marcos Montes, known by his art name as Juan Marco, is an artist from Los Angeles, California who has created illustrations and branding projects for the last decade. According to his website The Future Bones, his collaborations have included work with Sony Music, Warner Bros, and The Uprising Creative.
Marco recently granted a three-year limited licence agreement with C3 Presents, a concert promotion and artist management company responsible for the popular Lollapalooza music festival. As the official designer of Lollapalooza, Marco’s work featured characters “inspired by musical energy — how it flows through your body when you create and listen to music.” His creations for Lallopalooza are featured on his website portfolio.
The original licence was for the non-exclusive use of various illustrations for Lallopalooza events in Chicago, USA and Santiago, Chile for three years. However, in a lawsuit filed in California District Court last week, Marco argues that his illustrations have been used outside of the original scope as agreed in the licence (Juan Marcos Montes vs. C3 Presents and Live Nation, Case 2:18-cv-01150).
The alleged infringement includes using and modifying the artwork in unauthorised ways, as well as using it in locations beyond Chicago and Santiago. For example, his artwork is used in connection with the Lollapalooza event in Paris, as seen on the Lollaparis website. Additionally, Marco accuses C3, Lollapalooza and the Uprising Creative of sub-licensing his artwork without his permission, in order to manufacture and create products which are similar or substantially similar to Marco’s original artwork.
Marco is therefore claiming for copyright infringement, together with vicarious and contributory copyright infringement. In the first claim, he alleges that he has suffered substantial damages – both general and special - to his business. He notes that the Defendants have profited as a direct result of their “wilful, intentional and malicious” copyright infringement, and is asking for statutory damages of up to $150,000 per infringement.
In his second claim, Marco alleges that the C3 and the other Defendants are vicariously liable for the infringement carried out by other parties. The lawsuit states that the Defendants “knowingly induced, participated in, aided and abetted in and profited from the illegal reproduction and subsequent sales” of his artwork.
By alleging contributory copyright infringement, Marco is asking the Court to consider the Defendant’s secondary liability. To be found guilty of this offence, the Defendants must have reasonably known, or had reason to know, of the infringement. Marco asserts that under the original licence agreement, the Defendants had both the right and ability to supervise the copying of Marco’s artwork, but nevertheless failed to prevent infringement. The Defendants also benefited financially as a direct result of the infringement by other parties, and therefore must have known of the illegal copying in the first instance.
Unlike Adrian Falkner in the above General Motors story, it is interesting to note that Marco is not seeking any damages in respect of harm done to his reputation. By his own admission, Marco has previously collaborated with big names in the music industry, as well as freelance work for record labels and bands. Rather, Marco takes issue with the ways in which the artworks were used in contravention to the original licence agreement. It is therefore important to remember that permission to use artwork usually come with very specific strings attached.
Music video for Black Panther soundtrack “inspired” by British-Liberian artist
Marvel Studios’ new movie “Black Panther” features the first black superhero to appear in mainstream comics. It has received widespread acclaim and press, not least because of its positive portrayal of Africans and African Americans as powerful, heroic characters. In its review of the film, The New York Times exclaims that “Ryan Coogler's film is a vivid re-imagination of something black Americans have cherished for centuries — Africa as a dream of our wholeness, greatness and self-realization.”
To promote the film and its music, American rapper and songwriter Kendrick Lamar, together with American R&B singer SZA, recently released a music video for the film’s soundtrack, entitled All the Stars.” However, the producers of the music video are now accused of stealing from African artists.
British-Liberian artist Lina Iris Viktor, who currently resides in New York, has garnered praise for her series Constellations. The work is characterised by unique patterning, using what she considers a “purist colour palate” of only black and 24-karat gold. Viktor found out about the music video from friends who called her to say they’d seen Constellations featured in the video. The alleged infringement begins three minutes into the video, and lasts for 20 seconds.
Viktor’s lawyer Christopher Robinson sent a letter to Lamar’s mentor and label head, Anthony Tiffith of Top Dawg Entertainment. In the letter, as seen and reported by The New York Times, the use of Viktor’s artworks in the “All the Stars” video constitutes “willful and egregious” copyright infringement. In particular, the video “incorporates not just the immediately-identifiable and unique look” of Viktor’s work, but also “many of the specific copyrightable elements in the Constellations paintings.”
The letter also points out that Viktor had been previously contacted on two separate occasions in respect of using her work in association with Black Panther. In the first instance, a Marvel Studios set decorator asked Viktor directly if he could feature Constellations I in the film itself. On the second occasion, a public relations firm contacted the Mariane Ibrahim Gallery in Seattle, which represents Viktor. The firm wanted Viktor to provide Marvel Studios and Disney with artworks for the purpose of promoting the Black Panther film, including a video. In both instances, Viktor declined the opportunity to be associated with Black Panther, for reasons apparently related to financial terms and exclusivity.
At present, no official claim for copyright infringement has been filed. The letter simply asks the “All the Stars” crew to discuss a resolution of Viktor’s claims, “consisting at a minimum of a public apology for the unauthorised use and a license fee.” In her interview with the New York Times, Viktor explained that these allegations are “an ethical issue” and not about monetary compensation. She noted that the film’s creators focus on black empowerment and African excellence, but at the same time appear to support what she considers cultural appropriation. Lamar, Top Dawg, Marvel Studios and Disney have not yet responded to the allegations.
Copyright law and other intellectual property laws can certainly plays a part in the protection of traditional cultural expressions. However, the Constellations and “All the Stars” matter calls into question the fine line between infringement and inspiration. Style and general colour schemes are not protected by copyright law, regardless of the form in which it is illustrated or embodied (17 USC Section 102(b)).
Segments of Kendrick’s music video clearly appear (in this writer's opinion) to have been inspired by Viktor’s artwork. There are several striking commonalities with the patterns and colour schemes used, and certain actors’ poses mimic Viktor’s portraits. Nevertheless, proving that the substantial similarity goes so far as to amount to copyright infringement may be difficult. Should the team behind the Black Panther video have a legal question to answer, they will need to demonstrate that the works they chose to feature in “All the Stars” did not actually infringe Viktor’s copyright – despite being quite similar.

In an attempt to settle this allegation as quickly as possible, and indeed – to protect the narrative of promoting African and African American artists in general – the studios behind the Black Panther film and its soundtrack may simply elect to issue Viktor with an apology and a considerable licence fee. Given that the film is expected to smash box office records, and the Black Panther soundtrack has likewise become a hit with audiences, coming up with compensation is unlikely to be too much of a problem.

Wednesday, 14 February 2018

THE COPYKAT

This CopyKat from Mateusz Rachubka


The US Copyright Royalty Board decided to increase the amount of royalty payments that companies such as Apple, Spotify, Amazon, Google and Pandora would have to make to songwriters and music publishers over the next five years. The streaming companies would now be required to pay 15.1 percent of their revenue, comparing to the previous rate of 10.1 percent. As described by NMPA President & CEO David Israelite, in practical terms “the CRB raised rates for songwriters by 43.8%” and this decision also allows the songwriters to benefit from any agreements concluded by record labels in the free market. As a result the ratio between what “labels are paid by the services versus what publishers are paid” will now significantly improve. Additionally, the CRB has introduced a late fee, up to 18 percent annually, in case any royalty revenue is not paid on time by the streaming company. Although music creators did not manage to get ‘per-stream rate’, the songwriters consider increase in overall rates as a success in the market which is currently dominated by the streaming companies. 



Senators, both from Republican and Democratic parties, have introduced the CLASSICS Act (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society), which would impose an obligation on digital services to pay both rightholders and artists for the use of recordings that were created pre-1972. Under the current legal framework, the way in which digital music services pay to use recordings made after 1972 is covered by federal copyright law, whereas the use of works created before 1972 is regulated by state law. This situation has led to many questions and complicated litigation in several states. With the versions of CLASSICS Act introduced in the Senate, now the rates for the use of both pre and after 1972 recordings for digital services will be the same and paid in an identical way. Introduction of the bill will also enable digital platforms to settle any outstanding claims with rightholders, in California. This will allow services to avoid state infringement lawsuits. Nevertheless, in order to do so digital music services would have to pay three years’ worth royalties at the current statutory rate for all the music they have used across the whole country.


Recently we have reported that the debate over introduction of ‘Safe Harbour’ provisions to NAFTA agreement is heating up. Now Public Knowledge has explored the proposals that were suggested by the lobbyists for the big entertainment companies. One of the ‘wildest ideas’ was a recommendation not to include ‘Safe Harbour’ provisions into NAFTA. In the view of the lobbyists, they “facilitate child pornography and human trafficking” by allowing internet intermediaries to avoid responsibility for any content that is published on their services. This argument according to Gus Rossi is highly misleading. He argues that without a legal framework exempting online platforms from responsibility for context posted by their users, the intermediaries “would be obligated to censor and control everything their users do on their platforms”.


Another argument proposed by the entertainment industries is that exceptions and limitations are unnecessary in trade agreement, claiming that they are “a barrier to the protection of American artists”. Rossi, again, considers this proposal as widely inaccurate. In fact, in the digital age the US copyright system would not be able to work without fair use provisions. Therefore, the author suggests that with the importance of current negotiations of NAFTA, which may be used in the future as a standard of ‘American-sponsored free trade agreements’, it is important to fight any misconceptions and protect a balanced approach to copyright.


With the ongoing debate on potential reform of copyright law in Australia and adoption of fair use approach, recently two reports were issued, which show that the current framework allowing for narrow ‘fair dealing’ exceptions is considered as a barrier to innovation. Deloitte in its ‘Copyright in the Digital Age’ paper argues that digital technologies could contribute over $139 billion by 2020 to Australian economy if the legal framework will support innovation and allow to maximise opportunities. The study of Australian Digital Alliance revealed that the creators struggle to understand copyright law. For many of them the exceptions are often confusing and seeking permission to reuse copyrighted content often results in expensive fees and time delays. Therefore, suggestions have been made that Australia should reform its framework and follow such countries like the US, South Korea or Sri Lanka, which have broader exceptions to the use of copyrighted content. Fair use provides that each use is assessed on its own merits and does not need to fall within a specific predetermined category. The authors of the report claim that transition to fair use would enable innovation, facilitate new uses of copyright materials, particularly in such areas as data mining and cloud computing, and ultimately lead to “a more competitive and creative (…) society”.


A coalition of rightholder organisations has addressed the new Presidency of the Council of the European Union, currently held by Bulgaria, to find a solution to the issue of ‘Value Gap’ (the Transfer of Value). The Value Gap arises in the situation where there is a “mismatch between the value that online User Uploaded Content (‘UUC’) website services extract from creative content and the revenues returned to the creative community”. With vast amount of content being uploaded by users, the UUC sites generate revenue from the infringing content. At the same time the UUC websites refuse to negotiate “fair or any copyright licences” with rightholders. Therefore, the creators believe that the proposal for Copyright Directive, which is currently being negotiated by the European Parliament and EU member states, should clarify two elements. First of all, that the “UUC services communicate to the public under the EU copyright framework and therefore are obliged to obtain licences for copyright protected works, unless eligible for e-Commerce Directive ‘safe harbours’”. Secondly, those UUC services that play an ‘active role’ in promotion of the content, should not be able to benefit from ‘safe harbour’ provisions.

The issue of Value Gap was also addressed by the President and Vice-President of CISAC. In their open letter to MEPs, Jean-Michel Jarre and Angelique Kidjo noted that the copyright reform offers “a historic opportunity to bring fairer remuneration for creators and drive economic growth and jobs in the creative industries”. Therefore, in their view the EU law should not shield UUC platforms, which “make vast revenues from creative works while not fairly rewarding the creators”. Thousands of artists and authors supporting the European Commission’s proposal believe that with a reform of safe harbour the new copyright Directive  will offer an opportunity to “shape fairer digital market for creators in the 21stcentury”.  

For further debate on remedying the Value Gap under the proposal for Directive on copyright in the Digital Single Market go here, and here.

If you would like to support European screenwriters and directors in their call for a modernised EU Copyright framework, please click here.


That was the question in the dispute between ISE Entertainment, and Civillico and Longarzo. ISE claimed that it owns rights to ‘The Weekend in Vegas’ ABC show, which until recently the viewers could also download on Amazon.com. The show was however removed following an infringement notice submitted by Civillico and Longarzo. According to Civillico he owned the rights in the show and ISE by being in breach of a deal had no authority to use his work. ISE sued both parties for allegedly violating DMCA section 512(f) by submitting a fraudulent takedown notice. The defendants argued that ISE had never registered the show for copyright, nor applied for a registration and therefore had no standing to make a claim under section 512(f).

This argument was rejected by the US District Court Judge Fitzgerald. DMCA section 512(f) provides that an ‘alleged infringer’ may recover damages from when harmed by misrepresentation that material or activity is infringing (here fraudulent takedown notice). In the view of the Court “neither copyright ownership nor registration are prerequisites to bring” action under section 512(f). Therefore, the Court concluded that ISE as an ‘alleged infringer’ had standing to sue and that ISE has stated a viable 512(f) claim.


Google has reached agreement with Getty Images over a ‘multi-year’ licence, which will end the European Commission complaint, where Getty “had accused Google of effectively being a one-stop piracy shop”. Getty claimed that the users of Google could simply view and download “high-resolution, copyrighted content”, which accordingly enabled copyright infringement and piracy. As revealed by the parties, Google has agreed to reform its approach to copyright in its image search function. The search will now include more prominent copyright disclaimers and will remove view image links to the image URL. In return Google will be able to use Getty Images’ content in its products and services.

CREATes need you!

The  School of Law and CREATe Centre at the University of Glasgow have Two CREATe-related roles now available at the University of Glasgow. There is an opportunity to join the School of Law and CREATe at an exciting point in our development, as part of the University of Glasgow’s ongoing investment in the creative economy. Two positions are now available, as Lecturer in Intellectual Property Law and Graduate Teaching Assistant, at the School of Law-hosted Centre for Copyright & New Business Models in the Creative Economy (CREATe), an international copyright research hub established in 2012 with research funding from the AHRC, EPSRC and ESRC. Please click here to read more about the roles  http://www.create.ac.uk/blog/2018/01/29/two-create-related-roles-now-available-at-the-university-of-glasgow/ 

Informal enquiries about both the above positions may be directed to Professor Martin Kretschmer (Professor of Intellectual Property Law and Director of the CREATe Centre).  Email: martin.kretschmer@glasgow.ac.uk and Tel: +44 141 330 3886

French Minister Clarifies Statutory Provision on Copyright Contracts



One of the striking features of French copyright law is the protection it affords to authors in their contractual dealings with would-be licensees and assignees.

One of the key statutory provisions that contributes to this high level of protection is Section L.131-2 of the Intellectual Property Code (IPC), which until recently provided as follows:

"Contracts for public performance, publishing contracts, and audio-visual production contracts defined in this Section shall be in writing, as shall be free authorizations to publicly perform.  
In all other cases, the provisions of Sections 1341 to 1348 of the Civil Code shall apply."

This provision sets out a rule whereby certain named contracts (viz., public performance, publishing and audio-visual production contracts) must be in writing.  (To this list must also be added, pursuant to a different section of the Code, contracts for the acquisition of audio-visual adaptation rights of a literary work).

Courts have long recognized that the requirement for a written instrument under Section L.131-2 IPC is merely for evidentiary purposes (ad probationem ) and not for the contract's validity (ad validitatem).

In all other cases, the ordinary rules of evidence under the Civil Code apply.  However, it should be noted that even in such cases, a written instrument is highly recommended in light of other formal requirements (set out particularly in Section L.131-3 IPC).

The Act of 7 July 2016 added a new paragraph so that Section L.131-2 IPC now reads as follows:

"Contracts for public performance, publishing contracts, and audio-visual production contracts defined in this Section shall be in writing as shall be free authorization to publicly perform. 
Contracts under which copyright is transferred shall be in writing.  
In all other cases, the provisions of Sections 1341 to 1348 of the Civil Code shall apply."

The introduction of the new second paragraph left many wondering what the scope of the final paragraph would now be. 
A written question on this issue was thus put to the Minister of Culture who replied on January 11th last.
In essence, she confirms that the rule embodied in Section L.131-2 IPC is an evidentiary one (and not for validity).  She goes on to say that the second paragraph was enacted to protect authors of graphic, artistic and visual works. 
As for the question of what then is left for the final paragraph, the Minister suggests that it applies only to works of industrial applied art, i.e. works intended to be used as utilitarian products that could also, in theory, be protected by a design and model right.
Only time will tell whether the French courts agree with the Minister's interpretation. 

Thursday, 8 February 2018

French Constitutional Court Rejects Challenge to Image Right in National Monuments




                                               
                                                                            How much do I owe?


France's Constitutional Court has just ruled that a provision in the Code du patrimoine (Heritage Code) involving the use of images of buildings protected as national domains passes constitutional muster.

The provision at issue was Section L.621-42 of the Code, which, as amended by the Act of 7 July 2016, provides as follows:

"The use, for commercial purposes, of the image of buildings constituting national domains, on any media, is subject to the prior authorization of the custodian [French term is "gestionnaire"] of the relevant portion of the national domain.  Such authorization may take the form of a unilateral deed or a contract, whether or not in conjunction with financial terms.

The fee shall take into acocunt the advantages of any kind obtained by the holder of the authorization.

The authorization contemplated by the first paragraph is not required where the image is used in the context of the exercise of a public service mission or for ends that are cultural, artistic, pedagogical, for teaching, research, informational and by way of illustration of current events."

The constitutionality of the provision was challenged by Wikimedia France  and La Quadrature du Net (by way of a so-called priority question of constitutionality) which argued, inter alia, that the provision violated the principle whereby patrimonial rights subsisting in an intellectual work must be time-limited (i.e., cannot be perpetual), the freedom to carry on business (of those whose business is based on marketing such images) as well as the right of property (of the owners of such photographs as tangible property as well as copyright holders therein) and the principle of equality before the law (inasmuch as the statutory provision allows a degree of latitude to the custodian in granting - or not - the authorization - for free or for a fee).

Theses grounds are brushed aside by the Court, which holds that the provision is constitutional.  In an interesting paragraph, it clarifies that it follows from a combined reading of the first and third paragraphs that the custodian's authorization is not required where the image is used for commercial purposes and also in furtherance of an end that is cultural, artistic, pedagogical, for teaching, research, informational, by way of illustration of current events or related to a public service mission.

Link to decision here