06 October, 2015

No Cause for Celebration - Happy Birthday To You Deemed to be Out of Copyright

Birthdays are a peculiar phenomenon when fully dissected and thought through, yet they evoke an image of youthful bliss and happiness, along with often copious amounts of presents and sugary foods. Almost every language and culture celebrates birthdays (bar some religions etc.), and wishing someone a happy birthday can be as colorful and varied as the cultures themselves. A big part of Western birthday traditions is the song "Happy Birthday to You" (and other regional variants thereof), which has been held under lock and key by Warner/Chappel Music, and as discussed over two years ago on this very blog, the saga challenging its copyright protection has been a long and arduous one. The case has since reached its newest milestone, which will be cause for celebration for many, and a loss for the few.

For the uninitiated, the case of Rupa Marya v Warner/Chapell Music Inc dealt with the aforementioned song "Happy Birthday to You", which was created by the Hill sisters, Mildred and Patty, in the late 1800s (although only in melody). Their original song, "Good Morning to All", featured the melody we associate with the above song, however the lyrics were only changed some time after the publication of Good Morning to All in a collection of songs by Clayton Summy, who had acquired the rights to the song in the 1890s. The author of the lyrics to Happy Birthday to You is largely unknown. Rupa Marya, as a part of a class-action lawsuit, asserted that Warner/Chappell did not own the copyright in the song, and that "...they should be compelled to return the “millions of dollars of unlawful licensing fees” they have collected by wrongfully asserting copyright ownership in the Happy Birthday lyrics".

The first consideration for the District Court for the District of Central California was whether the copyright in the lyrics to the song actually vested in Warner/Chappell. As the acquisition and transfer of the rights to Good Morning to All, and the creation of the lyrics to the derivative work Happy Birthday, remained unclear, the Court had to discern whether the rights to the work vested in their alleged owner (i.e. who wrote the song Happy Birthday), and if so, whether they were correctly assigned onwards affording Warner/Chappell enforceable rights to the song.

Warner/Chappell had very little to celebrate after the decision
In determining the ultimate author of the song, judge King saw that, even though claiming so under oath in a deposition, Patty Hill had not written the lyrics, as several other authors either directly or indirectly had claimed to have done so, and very little evidence illustrated that Patty Hill had concretely written them. Also, under old US law, an author could lose their rights in a word if they publish it before seeking proper registration or publishing it without proper notice, effectively forfeiting their federal and state common law rights. Judge King saw that, in the absence of authorized publication of the song, the defendant had not divested their rights through publication. Although claimed, the court did not find that the lyrics had been abandoned by Patty Hill, even though evidence was put forth to this effect, as the hearsay evidence provided was non-conclusive. As no author was clear, the motion was denied and the Court moved onto the question on ownership of the rights.

The main focus of the case was then the transfer of the rights to Mr. Summy by the Hill sisters in 1934. Through two separate agreements, neither of which has survived from their drafting in the 1930s, the defendant alleged that it had indeed transferred the rights to the lyrics to Mr. Summy. The Court rejected their arguments, and saw that the only transference that had occurred was for the piano melody of the song Good Morning to All, with no reference to the lyrics or the derivative work Happy Birthday to You being a part of either agreement. Judge King therefore concluded that the rights to the lyrics for the song Happy Birthday to You had not been transferred to Mr. Summy, and ultimately to Warner/Chappell Music. The case leave the ownership of the copyright for the song in doubt, potentially causing for the song to fall into the public domain before the end of its copyright term.

The case shows an important facet of copyright and intellectual property, the importance of the chain of evidence. Should there have been concrete provenance of a transfer of rights, the rights in the lyrics to Happy Birthday would have vested in Warner/Chappell Music. In the end, the uncertainty in evidence and the inception of the lyrics to the song left them with very little recourse to protect their rights, and lost them as a result. No repayment of license fees was discussed by judge King; a point that might be contested in court some time in the future. Whether Warner/Chappell will appeal remains to be seen, but this writer doubts the likelihood of this.

Source: The Guardian

16 September, 2015

Retrospective - Incidental Inclusion of Copyright Protected Material

Not all infringement is necessarily wilful or intended, whether it is accidentally sharing a copyright protected image to a wider audience when it was intended to be shared to simply a small audience (albeit still, arguably, infringing copyright) or including works in your own that were not duly licensed as a matter of omission. As such the law does exclude liability for potential accidental inclusion, protecting those who have not intended to infringe copyright, but nevertheless have done so. How the law protects those who've incidentally included material in their works has been unclear due to the ambiguity of the provision in the Copyright, Designs and Patents Act 1988, but more clarity was shed on the provision in the early 2000s by the Court of Appeal.

The case dealing with incidental inclusion was Football Association Premier League Ltd & Ors v Panini UK Ltd, which dealt with collectible football stickers; a staple in many persons' youths (although this writer was more of the ice hockey disposition). Panini sold stickers, along with an album that you could collect them into, within the UK. The sticker collection comprised of nearly 400 football players from the English Premier League and other leagues, and the images used in the stickers contained the player wearing their respective club shirt. In many pictures the clubs' logos are fully visible, also sometimes including the Premier League logo on the sleeve of the football shirt. After a licence was issued to Topps Europe Limited (a tendering process that Panini was involved with) they created a similar sticker collection and accompanying album, and the Premier League too Panini to court for copyright infringement in relation to the club logos and the Premier League logo.

The main focus of the case was on whether Panini's inclusion of the logos in their stickers was copyright infringement, or whether it was protected under section 31 of the Copyright, Designs and Patents Act 1988. The provision allows for a finding of non-infringement in the event of a work's "...incidental inclusion in an artistic work, sound recording, film or broadcast"; however, what exactly amounted to an 'incidental' inclusion was uncertain.

Several draft stickers were rejected for good reason
Lord Justice Chadwick saw that the determination of whether a work does or does not infringe copyright has to be made "...considering the circumstances in which the relevant artistic work... was created". The circumstances would involve the relevant artist's mindset and potential reasons for the inclusion of a potentially infringing work in their work, as well as both commercial and aesthetic reasons for its inclusion. Emphasis is placed on the why, which undoubtedly will take into account any inclusions that are done merely feigning an incidental inclusion, when the true reason was to benefit from its inclusion.

In concluding the case Lord Justice Chadwick saw that, as the reason for the inclusion of the relevant club shirt was to make the images, and therefore the stickers, the most attractive to a would-be collector, it would be important for the shirts to be authentic and contain all logos. Due to this their inclusion could not have been purely incidental, as the objective of the images was to display the logos, although not prominently, but visibly enough for an informed collector to note them. His promptly then dismissed the appeal by Panini.

As can be seen incidental inclusion is by no means a straightforward assessment using bright line rules, but involves a more nuanced, objective assessment of a potentially infringing work's inclusion. Should the Premier League logo just have been present in an on-field advertising board in the background, or on a truck outside, arguably its inclusion would have been incidental. The reason why they were in the image was to give an aura of legitimacy, value and to effectively identify each player, team and league in the sticker set. Incidental inclusion doesn't come up often in IP, and this writer would love to see it applied in an Internet context somehow.

07 September, 2015

A Feast for the Eyes - Food Porn Banned in Germany?

Since the emergence of Instagram and other similar social networks, the power and marketability of pictures, especially of food, has sky-rocketed. This writer fondly remembers a time when he could go to a restaurant without having his friends take pictures of everyone's untouched dishes before tucking in. Alas, those days are gone, and with highly shared pictures comes a great deal of free marketing for the restaurants or eateries featured in those pictures. In other words, as Dominique Crenn, Chef de Cuisine at Atelier Crenn, put it: "Instagram came to give a voice to chefs and to the food they serve". An increase in sales or reservations can make or break a smaller establishment, while providing more established restaurants the financial boost they need among a more focussed, discerning consumerscape, and these images can be the difference between notoriety or infamy. Many would want to control this projected image, so could you exert ownership on photographs of your dishes?

In a somewhat interesting turn of events, albeit some 2 years ago, the German courts extended copyright protection to 'applied arts' under Directive 98/71/EC on the legal protection of designs in case I ZR 143/12 (press release on the decision in German here). This, according to many news outlets, covers food or plate arrangements, so long as they are not merely trivially thrown on the plate, but have an "advanced level" of design to them. This would entail more thought, and clearly is intended to cover those dishes that reflect a more artistic, sensual experience (for the eyes).

Floyd's pièce de résistance: the sad sandwich
As with many other types of artistic works, some dishes can exhibit a great deal of thought, ingenuity and planning, and this writer does appreciate a possible need to protect them under law. Even so, the enforcement of the new German law would be difficult, as many chefs would not sue those seeking to merely spread the name and design of their restaurant's dishes; however, should they want to keep new dishes or experience under wraps from the general public this route would seem much more attractive.

Under UK law it would be difficult to argue a case for the protection of food porn. Under the Copyright, Designs and Patents Act 1988, sculptures enjoy protection as artistic works under copyright. Should a chef make a particularly sculpture-esque food presentation, it would be possible for it to be argued as protectable under copyright, but with the caveat that the food sculpture would have to retain its artistic merit outside of just being sustenance. Similarly in the US their copyright legislation allows for the protection of sculptural works, so far as "...such design incorporates... sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article". This would mean that the sculptural aspect, i.e. the artistic features of the food piece, would have to exist outside of the food or its purpose (to nourish or to be enjoyed taste wise); a fact that would be difficult, albeit not impossible, to prove.

As one can see the protection of food porn is very difficult, even borderline impossible within the common law sans any major changes in the law. One could say this is the correct approach, since the design or food porn quality of any given dish is purely transient; an aspect of visual enjoyment prior to the consumption of the food, and intrinsically a part of the process of enjoyment in conjunction with the taste and feel of the item. Pictures of food are an important aspect of modern marketing, but it will be some time till protection is afforded to something more than the image of the dish.

Source: Eater

24 August, 2015

Music Lost - The Beatles, US Fair Use and Estoppel in the UK

The music industry is a hugely cut-throat business, with the 'little guy' often being dominated by the big companies that control the market and access to the more lucrative avenues within that industry. Due to this drastic imbalance contracts can often be one-sided, take it or leave it types of negotiations, which can lead to contracts, or negotiations for those contracts, that are waged with mainly the interest of the record company as the vocal point. A very interesting case discussing the relationship with UK & US law, utilizing the latter as a fair use defense in the former, and bringing forth an argument on promissory estoppel in relation to contractual negotiations was handed down by Justice Arnold early last month. This writer, in shame, will admit he has not gotten around to discussing the case as promptly as he wanted, but decided it was high-time to address this case in more detail.

The case in question is Sony/ATV Music Publishing LLC v WPMC Ltd, which dealt with the Beatles' first concert on US soil, performed at the (now defunct) Washington DC Coliseum in February 1964. The concert was filmed, although with a very low production value, subsequently being shown in movie theaters across the country to capitalize the new Beatlemania sweeping the country. Through a complex set of events the defendant, Iambic, acquired a copy of the video of the concert, which was then passed onto Iambic's successor WPMC after Iambic went bankrupt. Christopher Hunt, who was the director and sole owner of both Iambic and WPMC, wanted to make a documentary based on the concert footage and sought a licence from the copyright holder to the Beatles' music, Sony/ATV. After long negotiations no license agreement was finalized, but a preliminary version of the documentary was made by Mr Hunt, and advertised on a website for the UK market. Sony/ATV found the website and took Iambic (and then WPMC) to court for copyright infringement.

The Beatles; an outfit of curiosity even for newer generations
The first issue in the case was a rarity in the world of IP; whether a contract had been concluded and if not, whether Sony would be still held to it through proprietary estoppel in their representations that Mr Hunt had relied on. During the negotiations for a synchronization license, emails exchanged between the parties were always headed "SUBJECT TO CONTRACT" or a similar wording, implying that no final contractual relationships have been concluded no matter what the content of the emails themselves. Although Sony/ATV had nearly agreed to a license with Mr Hunt, even concluding some emails with the sentence "...[I am] pleased to advise that I have now received approval for the following non-exclusive use"; however these 'agreements' were made with reservations, such as seeing the final documentary prior to accepting the license for the documentary.

Through their communication, viewed as a whole, Justice Arnold. who presided over the case, saw that no contract had been concluded. As all communication was headed as "subject to contract", which clearly indicated to both parties that no contract had been set pending certain agreed upon terms. This was important as to the estoppel claim, as there could be no reasonable reliance due to this express wording within the communication. Had the above phrasing not been included there potentially could have been a claim under estoppel.

Finally, Justice Arnold had to settle the issue of fair use under US law. As discussed previously on this blog, US fair use is an assessment of four factors (under 17 USC § 107): (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

As the documentary is a commercial work, it would have to be transformative in nature (i.e. adding something new with a different purpose of character) to benefit from fair use under the first factor. Due to the inclusion of the concert in its entirety, and a small amount of commentary accompanying it, Justice Arnold deemed the work to be only partly transformative.

The second factor was agreed upon by all parties as being an expressive work falling under the remit of copyright, adding to a possible finding of a lack of fair use.

Under the third factor, as the use of the copyright material was substantial (as the whole work was used) Justice Arnold did not agree that the use was within reasonable limits. The aim of the documentary could have been achieved by using less, which WPMC did not do, and therefore was a substantial copying in the light of fair use.

Finally, even in the absence of submitted evidence, Justice Arnold saw that the documentary could usurp the market for the copyright holder, as they could have very well used the footage to create a documentary of their own. As there might be a market for audiovisual works of the Beatles (with this writer thinking there definitely is), the documentary would also replace the provision of those types of works from the copyright holder, depriving them of the benefit of the audiovisual works. Also, Justice Arnold decided that, as there is a clear market for synchronization licenses, the market for those licenses would be damaged, as they would not necessarily be sought if one is not needed in all instances. He then concluded with a finding of no fair use.

Ultimately Sony/ATV succeeded in their infringement claim; however, the case is still pending in the US, and whether a different finding there would change the nature of the case remains to be seen. One would imagine the decision will be appealed, and this writer would be curious to see proprietary estoppel to be challenged higher up in the UK courts.

Source: IPKat

10 August, 2015

Tweets Stolen - Further Thoughts on Tweets and Copyright

The impact of social media on today's social interaction is undeniable, with people turning to Instagram, Facebook and Twitter for more and more of their entertainment, social and news needs. As this new interaction space has grown, and seemingly keeps growing, the value of the content within it has grown as well. This writer recently noted newly emerged discussion surrounding Twitter and reusing jokes and/or content lifted from Tweets, especially in the light of having discussed this on a very superficial level some time ago, I thought it merited expanding more in detail.

In a recent development it has come to light that Twitter hides certain tweets it deems to be infringing copyright, pending a response from the copyright holder as to their respective fates. This is expanded on in Twitter's Copyright and DMCA Policy: "Twitter will respond to reports of alleged copyright infringement, such as allegations concerning the unauthorized use of a copyrighted image as a profile photo, header photo, or background, allegations concerning the unauthorized use of a copyrighted video or image uploaded through our media hosting services, or Tweets containing links to allegedly infringing materials". One has to note that, although the policy does focus on images and videos, it does leave its definition of "copyright infringement" as open-ended, potentially catching tweets themselves.

This begs the question, is a tweet protected by copyright? As discussed in my previous article, the UK Copyright, Designs and Patents Act 1988 does not set a limit on what can amount to a copyright protected literary work, which allows for even tweets to be potentially protected under the provision. As long as the work originates from the author and contains a certain level of originality. The ECJ decision in Infopaq International A/S v Danske Dagblades Forening further elaborated on what amounts to originality, with the court deciding that a work is protected by copyright if it is "...the expression of the intellectual creation of [the] author". So long as you have put in effort and some level of choice and creativity into your work, even a tweet, it would arguably be protected by copyright within the UK and the EU, irrespective of the tweet's length (140 characters or fewer).

Twitter can be serious business
In the US things can potentially be a little different. Under 17 USC section 102 copyright protection extends, much like in the UK, to literary works. The provision itself does not prescribe any length requirements no works for copyright to be applicable, and section 101 offers no further assistance in answering the above question. The Electronic Code of Federal Regulations aids somewhat, as section 202 of the Regulations stipulates that works that will not (necessarily) be protected by copyright are "[w]ords and short phrases such as names, titles, and slogans" - although, the CFR merely sets these out as examples, not definitive limitations. Whether a tweet would count as a "short phrase" and therefore is not protected would remain an assessment of its creativity (as was discussed in Arica Institute Inc v Palmer, for example), as if the phrase exhibits a minimal amount of creativity, it would arguably be protected by copyright in the US.

As can be seen Twitter and tweets do pose a challenge to copyright and whether its protection extends to them within the common law. Although literary works are nearly universally protected all over the world, their length and specific content does dictate the protection afforded, especially when its creativity or originality comes into question. One big consideration is the monetization of tweets and whether they would ever merit protection to the point where they would be challenged in court. This writer would love to see a tweet or a series of tweets be evaluated by the courts at some point, but heavily doubts the likelihood of this ever happening. Without judicial consideration one can still very much appreciate the creativity of tweets and their content, as the character limitations present a unique obstacle to comedic delivery; something when achieved can be powerful.

Source: The Verge

04 August, 2015

Icons Gone - Photography of Landmarks to be Prevented Through Copyright?

Memories are an important part of life, especially when it comes to travels to far-away lands or places, filled with culture, icons and landmarks that dot human history's timeline. As an avid traveler, this writer has taken his share of photos, both digital and of the physical, film variety, and often looks back at them with fondness and nostalgia. Pictures also form a part of the fabric of visual heritage of different cultures, and their importance cannot be overstated. Nevertheless, as a part of the InfoSoc Directive's implementation report, specifically relating to Article 5 of the Directive, any EU Member State could introduce restrictions to rights conferred in Articles 2 and 3 of the Directive.

To expand on this a bit more, the Freedom of Panorama enables individuals to take pictures of sculptures or other permanent installations and publish them without a need to consult the original creator or architect to do so. Currently the legal landscape for Freedom Of Panorama is very scattered, with some countries in the EU allowing all uses of such pictures (some with certain limitations, such as non-commercial use), while others, such as France and Italy, allow for no publication of images of this nature. Arguably the ability to publish one's vacation photos should be a 'right' in itself, with potential restrictions on commercial utilization being a viable option (although, one can imagine, costly to enforce effectively).

Frank was a savant in monument photography
In the proposed amended report put forth by Julia Reda (with the initial report discussed on this very blog here) Freedom Of Panorama was curtailed somewhat, as a recommendation set forth that "...the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorisation from the authors or any proxy acting for them". Ms Reda's initial report had a very different view, proposing that photographs of such places would always be permitted. This writer would promote striking a balance between the allowance of sharing photographs with their commercial utilization with no licence contribution. Arguably, enforcement and ensuring that all images were actually taken for the commercial purposes would be challenging, and potentially nigh impossible, yet it still remains an important consideration in this context. People should be able to share their vacation photos with no need to seek permission, but should not be able to sell those images as postcards, for example, willy-nilly.

The measure has since been rejected, which is a great development; however, one has to note that the resolution is non-binding, potentially leaving the door open for the restriction of Freedom Of Panorama in the future. This writer doubts any substantial restrictions would ever be introduced, and even if they would be, their enforcement would be their downfall. Online services like Facebook and Picasa would have to restrict the displaying of photos that would infringe on this potential provision, bearing the brunt of the enforcement of any takedown notices from subsequent rights' holders.

This discussion surrounding the Freedom of Panorama highlights the persisting importance of copyright in everyday life, even regarding mundane, more obvious 'rights'. Should a restriction be implemented monuments around the world would probably have stewards requesting payment after a photograph is taken, affecting the magic of amazing sights that people have wanted to see on their journeys. Nevertheless, as the measure has been rejected it seems highly unlikely, but this writer will follow any developments with interest.

Source: The Times

17 July, 2015

Online Blasphemy - YouTube Wins Round Two of Performance Right Kerfuffle

After the decision in Garcia v Google (discussed on this very blog here) last year the question of whether an actor (or actress) has a copyright interest in their respective performance, no matter how short, has been debated hotly. The decision was appealed, and the Court of the Ninth Circuit decided to hear the matter again en banc; a decision that many of us involved in IP have waited for with anticipation. The decision was finally handed down nearly two months ago, and this writer, in shame, only now had time to discuss the case.

For the uninitiated Garcia v Google dealt with a low-budget independent movie called "Desert Warrior", in which Ms. Garcia appeared. Post filming the title and narrative of the movie was drastically changed, finally being called the "Innocence of Muslims"; a movie that arguably was quite blasphemous and offensive towards those of the Islamic faith. Ms. Garcia's appearance was a brief 5 second clip, and her performance was dubbed over in post-production. The movie incited violence and disapproval in the Middle East, with Ms. Garcia also facing several death threats as a result of her appearance in the movie.

The main crux of the case lies in Ms. Garcia's claim in a copyright interest in her performance, allowing for an injunction to be issued against Google for the movie's broadcast on their YouTube platform (and potential other platforms as well). This injunction was issued at first instance.

The Court raised the alarm right from the start, stating that "...Garcia’s theory of copyright law would result in... splintering a movie into many different “works,” even in the absence of an independent fixation", or in other words, every actor or actress in a given movie would have a copyright claim in it. Also, Ms. Garcia's part in the movie would fall under the work-for-hire doctrine, which passes on the copyright interest to the employer, leaving her with no copyright claim in the work. Ms. Garcia did not, as a final barrier to her copyright claim, fix her work in any tangible form; a requisite element under copyright in the United States for an interest in the work to arise. Through the Court's rationale, albeit quite aggressive as such, Ms. Garcia's claim was quickly dissected and dismissed and she was deemed to have no copyright claim in the work.

Free speech online; a precious commodity
Finally, the Court addressed Ms. Garcia's claim under irreparable harm. Her claim does not manifest itself through any tort-based cause of action, but through copyright and her interest in the work as an author. The Court did have sympathy for Ms. Garcia, but her action was rotten at the root, as the Court described: "This relief is not easily achieved under copyright law. Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from -and incompatible with - copyright and copyright’s function as the engine of expression". One has to agree with the Court's judgment, as rightfully so copyright protects expression and not human life or its safety. While one has to appreciate that the movie has brought a significant amount of distress to her, and as such those problems should be addressed, but the way to address them is not through copyright. In the end, her claim failed under irreparable harm, as no harm was caused to the work or her claimed interest in the work as an author.

Judge Kozinski, who gave the judgment at first instance, handed down a dissenting judgment, as he saw there indeed was a claim under copyright in Ms. Garcia's small part in the movie. Through his Honor's argument, Ms. Garcia's claim stems from the acting itself, and its fixation on film. Without this, in judge Kozinski's mind "[i]f Garcia’s scene is not a work, then every take of every scene of, say, Lord of the Rings is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie". This writer, in his humble opinion, argues against judge Kozinski here, as the mere recording of an actor or actress does not necessarily create a 'work' unto its own under copyright. Should one follow this logic the movie in question could consist of hundreds, if not thousands of distinguishable works, which would lead to copyright being untenable in the film industry.

Judge Kozinski further argues that Ms. Garcia has an interest as an author, and thus should be protected from irreparable harm. Although, under precedent, an author does not themselves have to affix the work to be considered as such, an actor or actress plays no part in the fixation of a work, but merely act as a part of its fixation for another. This does not create an interest as an author, or a separate author within one work. As she is not an author she cannot face irreparable harm, even if her life is at stake, as his Honor points out at the end of his dissenting judgment.

Overall the case has been a very interesting one, and whether it goes on further remains to be seen; however, this author does not see a need for it to go beyond its current route. Whether Ms. Garcia has a copyright interest in the work is, at least arguably, an equivocal no, and her case, although very serious in nature, would create an overreaching right in copyright beyond its intended purpose.

Source: BBC News