This is my Domain - US Supreme Court Decides on the Registration of Generic ".com" Domains as Trademarks

Since the advent of the world wide web, domain names' value to their owners have skyrocketed, with some, such as Google.com, being valued by some at roughly $31 billion. Although the valuation of that domain is a little ridiculous, being able to have the right domain at the right time can in itself create a business opportunity and thus be very valuable. However, domain names and their registration and trademarks has been a hot-button issue for some time, since the inclusion of ".com" along with a descriptive element might not be enough to allow for their registration. The USPTO has had a long-standing position where the inclusion of ".com" with a generic word would render that mark as generic and therefore ineligible for registration. This position has since been challenged, and the matter went up all the way to the US Supreme Court, which handed down its opinion earlier this week.

The case of USPTO v Booking.com BV concerned the registration of the mark "Booking.com" by, you guessed it, Booking.com BV, which is a site specialized in the booking of hotels for travelers. At first instance the mark was refused registration as the USPTO deemed it to be generic under the above rule, meaning the name would only have the descriptive meaning to consumers of the service and would not signify that particular website to consumers. Booking.com challenged the ruling, and ultimately took the matter all the way up to the Supreme Court.

Handing down the majority's judgment, Justice Ginsburg first discussed the registration of trademarks overall, particularly the requirements for a mark to be registered. This includes that the the mark has to be one "...by which the goods of the applicant may be distinguished from the goods of others", i.e. it has to be distinctive. Word marks, such as the domain above, can be distinctive in a sliding scale of sorts, namely (from least to most distinctive)  (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. A mark will have to achieve distinctiveness specifically "...in the minds of the public".

Justice Ginsburg then moved onto considering whether the mark in question is registrable or not. Booking.com applied to register the domain (and other variants of it, including visual features) as a trademark in relation to travel-related services; however, the application, as discussed above, was rejected at first instance. 

The main question the Supreme Court had to therefore consider is whether the term "Booking.com" is generic, specifically naming "...a “class” of goods or services, rather than any particular feature or exemplification of the class". As the domain is also a compound term (consisting of "Booking" and ".com" as separate elements), the Court would have to consider its meaning as a whole and not in isolation of those parts. Its meaning would have to be considered in the light of its meaning to consumers. In short, as noted by the Court, the consideration is "...whether “Booking.com” is generic turns on whether that term, taken as a whole, signifies to consumers the class of online hotel-reservation services".

The Court quickly noted that under evidence, consumers don't perceive the domain as being generic for hotel-reservation services, and as such, the term cannot be generic. The USPTO argued that, irrespective of that evidence, the term should be seen as generic since when a generic term is combined with a generic top-level domain like “.com,” the resulting combination is generic, barring exceptional circumstances. 

Finally, the Court considered whether the registration of  “generic.com” terms as trademarks would hinder competition, i.e. prevent a competitor from using the term "booking" when describing their services. The Court outright rejected this notion, noting that the risk of deterrence of using a term exists in relation to all descriptive marks. Even if a competitor uses that term, provided it's done in good faith, they would most likely be protected by fair use. 

The Court subsequently affirmed the decision of the Court of Appeals, and allowed the registration of the mark as it was not considered generic.

The case is a very important one, and surprisingly very late into the existence of domain names. It's important for brands that have more descriptive names to be able to potentially register their name as a trademark, particularly if it's in relation to a specific domain that is the heart and soul of that business. Competitors should be adequately protected by fair use and other similar doctrines, allowing for the use of those terms in describing their business, while allowing for sufficient protection of legitimate registered trademarks for those domains. 

Free to Sing - 'Happy Birthday to You' In Public Domain After Settlement

The recent saga dealing with the song 'Happy Birthday to You' has been discussed at length by many intellectual property commentators, including in this very blog here and here. The ownership of the copyright in the song, and the licencing practices surrounding it handled by Warner/Chappell, have been a big point of contention, with a recent ruling by the District Court of Central California declaring the copyright in the works to not reside with Warner/Chappell due to a lack of proper transfer of the rights to the ultimate entity. Warner/Chappell undoubtedly would have appealed the earlier decision, but the matter has since come to an abrupt end after a settlement between the relevant parties.

Per the Settlement Agreement, accessible here on Scribd, there are some terms of interest that must be mentioned.

The Settlement was a bitter-sweet end for Lisa

Section 2.1 of the Agreement mandates the establishment of a Settlement Fund, aimed at remunerating those who have paid licencing fees for the use of the song 'Happy Birthday to You'. The maximum amount allocated to the fund, if needed, would be $14 million, clearly demonstrating the understanding that there will be a considerable amount of entities with the relevant Settlement Class (considering that each licence is roughly $1500). This would include all persons who have paid such licencing fees since the 3rd of September 1949 (including, among others, to collecting societies or direct licences to Warner/Chappell). Even so, the realistic periods and sums of payment are set for two specific groups: payments made on or after the 13th of June 2009, or payments made before that date. The former group is entitled to all of their payments, but the latter only a share of 15% of what they have paid out. The difference, according to the claimant's lawyers, is due to the Statute of Limitations, enabling them to recoup some of their costs even in the absence of a proper claim due to the limitation period.

Additionally, section 2.2 sets out an express relinquishment of all claims of ownership over the song, and a requirement to no longer pursue any fee payments over the use of the song. Furthermore, the parties agree that the song is (under all likelihood, outside of any third-party claims in rights) in the public domain after the 8th of February 2016. However, Warner/Chappell did expressly defend their position in the settlement, and retained their position as the holders of the rights in the song. This seems to be mainly a point of principle, as the settlement does dictate that the song is in the public domain.

The Agreement also stipulates certain actions that need to be taken, such as the creation of a website and other administrative duties involved with the settlement and the payment of the settlement fees.

Arguably, the settlement is not much to write home about, but is an important illustration of the importance of challenging even the oldest, most well-known rights, when needed. The first instance decision set the tone for the settlement, and it shows in the one-sidedness of the Agreement, especially in the financial side of things. Nevertheless, the Happy Birthday saga has been an interesting one, and this writer, although underwhelmed by a settlement rather than a prolonged legal battle, is happy that we can all once again sing the song where ever and when ever we want.

Source: Ars Technica

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

Lawyers Without Borders - Copyright Infringement Jurisdiction in the EU

With a globally interconnected web of information, and the (relatively) free exchange of information comes a great deal of questions alongside the masses of benefits it presents to the 21st century world. Discussion, the exchange of ideas, and the sharing of content has never been easier and more readily available, and admittedly, the infringement of intellectual property rights has also never been easier and "normal" (this writer, for one, has heard many conversations confirming the normality of especially copyright infringement). One can simply download a song, movie or a TV show with a few clicks of their mouse, irrespective of the rights holders' location, time or even the medium of the content (in some instances). This presents many challenges to the modern IP practitioner, amongst which is the conundrum that is jurisdiction. Can an entity or an individual enforce their rights even beyond their own borders, and if so, who has the jurisdiction over this infringement? Luckily, the highest court in the European Union has, yet again, graciously stepped up to the challenge to answer this question.

The case in question was Pez Hejduk v EnergieAgentur.NRW GmbH, decided only a bit over a month ago. What was at issue in the case were various pictures of architecture displaying works by Georg W. Reinberg, taken by the plaintiff in the case Pez Hejduk; a professional photographer of the aforementioned subject matter in her own right. A conference was organized by the defendants, EnergieAgentur, in 2004, during which Mr. Reinberg illustrated his works through Ms. Hejduk's photographs, which were wholly allowed by Ms. Hejduk to be used for. Afterwards, with no permission by Ms. Hejduk, the defendants then made the pictures available on their website for visitors to both view and download as they pleased, subsequently leading to Ms. Hejduk suing for copyright infringement (and a wallet-busting 4050 euros), ultimately leading to the European Court of Justice.

The question posed to the ECJ was, prima facie, a simple one: "Is Article 5(3) of [Regulation No 44/2001] to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed by keeping a photograph accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled, there is jurisdiction only: in the Member State in which the alleged perpetrator of the infringement is established; and in the Member State(s) to which the website, according to its content, is directed?"

What was asked effectively boils down to where the content lies, and whether jurisdiction lies within that country of origin (in the case the top-level domain, for example .co.uk) or in every Member State to which the content is directed. This was explained quite well in the judgment in different terms: "...whether Article 5(3)... must be interpreted as meaning that, in the event of an allegation of infringement of rights related to copyright which are guaranteed by the Member State of the court seised, that court has jurisdiction to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction".

Gregory asserted his jurisdiction no matter where he went

The Court's initial consideration related to the wording of the Article itself, i.e. where the harmful even occurred or may have occurred, deciding that, under established case law, it can be both the source of the infringement (where the website resides) or where the infringement or harm is caused (where the infringement occurs). Even though the defendant's action causing the potential damage was localized only to where their seat is (Germany), this does not prevent jurisdiction from the country in which the case was seised (i.e. filed, as Ms. Hejduk did so in Austria and not Germany). Lastly, the Court saw that there was no need for the infringement to have been directed to the jurisdiction in which the damage was caused, allowing for infringing content on foreign Member State website's to be brought into courts in different Member States where damage might have or did occur.

The Court finally summarized its position regarding the above question: "...Article 5(3) of Regulation No 44/2001 must be interpreted as meaning that, in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated".

This case is an important statement of jurisdictional consideration, and allows for much more flexibility and freedom within the EU to bring forth claims of copyright infringement, even if that infringement occurs outside of your Member State. Any Member State's court can act as the judicator for damages, even if the court seised is different to the seat of the act of infringement. In an online world this is vastly important, and protects the interests of copyright holders much more effectively than through limitations allowing for claims only within the Member States where an alleged infringement has occurred.

Source: JDSupra

Monkey Business - When Copyright and Simians Collide

The law and the world surrounding it can often be dry and, quite frankly, boring to those who don't love it as most of us working within the legal profession. However, sometimes a topic comes through that permeates that misconception and brings the law and its impact into the discussion at large, often through more unconventional events. In this vein a question can be posed: can an animal own the copyright to a work? This writer for one had never considered this and found himself pondering it a bit longer than I would like to admit. Due to this extended contemplation this answer should be shared for those interested in the implications of animal artistry and copyright.

This issue came to light after an image of a macaques taking a 'selfie' was spread around the Internet, springing up a discussion of both copyright and whether the trend of the 'selfie' has well and truly gone too far. The photograph was taken with a camera which the monkey appropriated from David Slater, a nature photographer in his own right. After his acquisition of the camera the monkey took several pictures, a few of which turned out quite fantastic and display the monkey grinning and staring at the camera. The images were shortly thereafter uploaded to Wikimedia, and have remained there since as freely usable images, with Wikimedia firmly contesting any and all assertions of copyright in the pictures and argue they are in the public domain. As posed above the question still stands: can this monkey own the copyright to its 'selfie', or can Mr. Slater claim the rights over the picture even though he did not take the picture himself?

Rick wanted to ride the animal selfie fame train as well

Under the UK Copyright, Designs and Patents Act 1988 a work is only protected by copyright if it is created by an 'author', defined as "...the person who creates [the work]". Arguably, at least on the face of things, the monkey will have no rights in the pictures as animals are not 'persons' within the meaning of the Act, making the work ineligible for copyright. Although Mr. Slater owned the camera and potentially set up the photo he still does not own the copyright for the work as he himself did not take the photograph. Sometimes the final piece of the puzzle is the most important, especially in intellectual property law.

In the United States there is no real definition of an 'author' under US Copyright law, leaving the matter, on the onset, in limbo. However, through the guidance of the United States Copyright Office's Copyright Compendium, the term 'authorship' used in the US legislation "...implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable", and that non-human authors such as monkeys, therefore cannot hold the copyright to a work.

The photographer has since argued that the monkey "...was [his] assistant", potentially causing a case of joint authorship in the work or even affording the rights to Mr. Slater outright. Through his own admission Mr. Slater "...set the camera up on a tripod, framed [the shot] up and got the exposure right", giving the final shot to the monkey itself. Right from the start one has to be slightly incredulous about Mr. Slater's assertion here, and with no evidence bar his own word, as the monkey has refused to comment on the matter, his presentation of what happened has to be taken with a pinch of salt. Should he have effectively directed and set out the shot for the monkey he could potentially claim authorship, as framed by Brad Newberg: "If the photographer actually developed it in a certain way, made some tweaks, used some lighting to make some original choices, and said essentially 'Look at my collaboration with this monkey,' then he would have had some part of the creative process", and could potentially claim the rights to the work. In the end this would be a matter he would have to argue in court, and would be hard-pressed to do so.

So far the monkey's picture has lost Mr. Slater over 10,000 pounds since 2011, and clearly presents him with an incentive to pursue the matter further, especially due to the notoriety of the case at the moment. This writer for one would absolutely love to see the argument go into litigation and hopes Mr. Slater will pursue the matter further, if not just for the legal profession's enjoyment. The case would decide the rights of dozens of animals and who knows, maybe one of them will be the new big thing in nature photography.

Source: Ars Technica

Domain Registrar Faces Infringement Liability in Germany

Internet Service Providers have, for a long time, been the favorite target of copyright holders simply because they are often the conduit between the infringer and the material which is being illegally copied, although their liability as secondary infringers has been rejected since. The Internet provides a web of connectivity between a multitude of actors, such as ISPs, computer manufacturers and others, who in some ways, do enable the infringement of copyright, albeit not as their primary function. As with the former Betamax recorders, the simple function of potentially enabling infringement does not incur liability, arguably at least in most instances, however a new challenge was set against web domain registrars in Germany.

In a recent decision (which can be found here, unfortunately only in German), the German Regional Court of Saarbrücken had to decide on the liability of domain registrars, and whether they could be held liable as secondary infringers should the domain owners facilitate the aforementioned infringement. The case concerned the website h33t.com, which acts as a torrent tracker site, much like the more notorious Pirate Bay. The copyright holders of Robin Thicke's song "Blurred Lines", Universal Music, took on the domain registrar Key-Systems, who registered h33t's domain.

Ed was confused about domains

In their decision the Court saw that domain registrars could face liability if the domains they have registered facilitate the infringement of copyright. If they are notified of the potential infringement of copyright, and choose to do nothing about the infringements, they could face liability. The Court imposed a duty to investigate onto domain registrars; a duty which can be argued to be quite onerous, especially for bigger registrars which manage vast numbers of domains. Key-System's general council, Volker Greimann, commented on the decision: "The courts’ definition of what is obviously violating is however extremely broad and the duty to act is expanded to deactivation of the entire domain even if only one file or link is infringing... If left unchallenged, this decision would constitute an undue expansion of the legal obligations of each registrar based in Germany, endangering the entire business model of registering domain names or performing DNS addressing for third parties". One can agree with Mr. Greimann as to the onerous nature of the new duty imposed on registrars, especially when considering the vagueness of the duty and the potential numbers of websites which might infringe copyright in one way or another.

The Court did mention that the infringements in relation to h33t were "...obvious and easy to identify", potentially presenting registrars with protection in cases where infringements are not obvious or are a result of negligence or ignorance. The Court in this instance ordered Key-Systems to prevent the infringement; however what those measures are remains unclear to this writer. Even though the domain is shut down by Key-Systems, its transition to another service outside of Germany can be said to be quick and painless - making the duty to investigate and take action both onerous, and arguably frivolous, as infringers will merely change service providers if their activities can be said to be illegal. Through this Mr. Greimann's argument of it hurting German domain registrars could be said to carry some merit.

Secondary liability has been a hot question since peer-to-peer services have made infringement much easier, and websites which provide users with, for example, torrent links, have become abundant. Whether liability should be extended to all middle actors can be argued to be potentially damaging to the Internet and its function. This writer does not have much insight into German law specifically, and people who might want to hear Universal Music's general council, Mirko Brüß's, arguments can refer to his opinion post here (again in German only).

Source: Bloomberg

Sherlock Holmes is In the Public Domain, At Least Partially

As was discussed on this blog a few months ago the famous fictional detective, Sherlock Holmes, had been an issue of contention since a lawsuit had been filed almost a year ago. The matter at hand was whether Sherlock Holmes, or more specifically his characteristics, would exist in the public domain despite still being under copyright in the United States. This was contested by Sir Arthur Conan Doyle's Estate, and the case has reached it's first decision just after Christmas.

In a summary judgment by the District Court of Illinois Justice Ruben Castillo was faced with the task of deciding whether Mr. Holmes would still be protected by copyright in the US. The initial complaint was filed by the plaintiff Leslie Klinger over the payments of licencing fees in discussing the detective in his book "In the Company of Sherlock Holmes"; the fees having been 5,000 dollars.

Mr. Klinger sought to have the court declare "...that the Sherlock Holmes Story Elements are free for public use because the stories where the elements were first introduced have entered the public domain". The counter-argument against Mr. Klinger's view is that the elements have been developed over the course of all of Mr. Holmes' adventures, leading to them only entering the public domain once all of those stories have fallen out of copyright protection. The case was concerned with elements developed both prior and after 1923, the former of which would have more value as they have been out of copyright for Mr. Klinger's purposes.

In discussing pre-1923 elements Justice Castillo his Honor rejected the Estate's argument, calling it 'novel', utilizing the precedent set in Silverman v CBS. Although his Honor did agree that even though the pre-1923 stories do add to the subject matter which is protectable under copyright regarding the Holmes stories, once the works have entered the public domain they are no longer protected under copyright and are free to use by others. The Estate contested that this would create two different versions, a copyright protected and a public domain version, of the Sherlock Holmes works; something which the courts have previously done and was subsequently accepted by the court in question. This would allow the use of stories and characters from the earlier works, while still protecting latter works from free use without a licence fee.

After Justice Castillo's placement of the pre-1923 works in the public domain, his Honor had to further evaluate whether the post-1923 works would fall in the public domain, or remain under copyright. Both Mr. Klinger and the Estate accepted that certain characteristics differed from the pre-1923 works, having only originated from works written past 1923. The court utilized the 'increment of expression' test, set in Schrock v Learning Curve International, to determine which elements would fall under copyright in the latter works. Under this test "...the only 'originality' required for [a] new work to be copyrightable... is enough expressive variation from public-domain or other existing works to enable the new work to be readily distinguished from its predecessors". This principle, although prima facie would seem to apply to wholly new works, has been deemed to apply to derivative works as well; something which the court accepted that the post-1923 written works be. Mr. Klinger's argument failed as no evidence was given to disprove the differences between the pre-1923 works and the post-1923 works, offering protection for the latter even in the absence of protection for the former.

In its final determination the court saw that Mr. Klinger, and others, could use the pre-1923 stories and characters, while still protecting the later works. The Estate's lawyer stated that they are "...exploring an appeal but asserted that the ruling did not imperil any existing licensing agreements or the estate’s separate claims under trademark law". Under his legal victory Mr. Klinger released a statement, seeing that "...people want to celebrate Holmes and Watson. Now they can do so without fear of suppression by Conan Doyle’s heirs".

The decision is very important, not necessarily in terms of legal precedent, but due to the sheer popularity and fame which the Sherlock Holmes name carries in itself and its intricate stories. Even though the court only accepted that the pre-1923 works belong in the public domain, one can imagine the freedom will inspire many to create their own stories involving the famous detective and his sidekick. Whether the Estate will go forward with their appeal remains to be seen, but many will undoubtedly be glad of Mr. Holmes being open for use, at least partially.

Source: Arts Beat

Christmas and Intellectual Property Law

I'd like to personally wish everyone a very merry Christmas 2013, not forgetting those who don't celebrate this holiday, so happy Holidays to you too! In the spirit of the festivities I wanted to take a quick look at Christmas and its relation to intellectual property law. Even though the holiday is incredibly old (with further ties to pagan traditions aside from its religious connotation), it still ties in very deeply with modern intellectual property rights in a lot of ways.

The more notable image of Christmas these days is arguably the Coca-Cola campaigns which hit the scene every year. Some efforts have been made to thwart St. Nick's ties with the popular soda pop brand, with little or no damage done to the association between the two, especially during Christmas. The image of Santa in the Coca-Cola adverts is actually protected as a registered trademark; something which most people will not necessarily think of. The popular image was concocted by Haddon Sundblom in 1931 for the beverage company - having been used for almost a century. For a more Coca-Cola oriented history of old St. Nicholas, please refer to their 5 Things You Never Knew About Santa Claus and Coca-Cola article from 2012.

Some of St. Nick's weight could be attributed to his choice of beverage

Certain songs also evoke feelings of Christmases past, sitting around with your family and enjoying the season in the ways you had done for years, maybe even generations. Classics like "We Wish You a Merry Christmas", dating back to the 19th century, and "The Twelve Days of Christmas", dating all the way back to the 16th century, are a part of the holiday for most cultures which celebrate them all over the world. These songs have long since passed their copyright prime; however newer renditions of older songs or even modern creations still may remain under copyright. For example a very popular song in the US for the Spanish speaking community is the song "Feliz Navidad", and the song "Frosty the Snowman" both remain protected under copyright, limiting their use even during the season. This has very little impact on people overall, but still remains a notable thing for most. A selection of song remain very popular during Christmas, and showcase quite well how important the public domain is, and how profitable it also can be.

As one can see Christmas is still very entwined with intellectual property rights, even in the modern day. This should still not serve as a deterrent for your own personal celebrations. I hope you will all have a great break from work, enjoy some quality time with those who you love and remember, 'tis the season of giving. Have a happy end of the year!

Happy Birthday to Us All? The Challenge Over the Well-Known Birthday Song

If there ever has been a song that most people on Earth have heard, it's the one sang in celebration of one's birthday; Happy Birthday to You. The copyright owners of the song, Warner/Chappell Music, have kept the rights in a tight grip, charging as much as $1500 dollars for a single use of the song, but recently the rights to the song have come into question.

In a recent court filing, Jennifer Nelson, an American film-maker, is seeking for the song to be declared to being in the public domain (and having been there since the 1920s) as opposed to under the ownership of Warner/Chappell. If the song were to be declared to being in the public domain, anyone and everyone could be free to use it as they wish.

Birthdays aren't always so happy

The song's origin is in the old folk song of 'Good Morning to All', published as far back as 1893.The rights were subsequently bought by several entities, originally from the authors Patty and Mildred Hill, ending up with Warner/Chappell in 1988. The song brings in 2 million dollars per year for the owners through licensing fees.

Should the courts not make the declaration being sought, the copyright for the song should end sometime in 2016 in Europe, due to the passing of Patty Hill in 1946 and copyright terms extending to 70 years after the death of the last author of the work. Should a European nation have a longer period, the changes made under European Union legislation will not affect that period and the song will enjoy copyright protection for that extended period. In the United States the song's copyright should have expired in 1991, however the period was extended twice; initially by the Copyright Act of 1976 and further by the Copyright Term Extension Act and protection should therefore extend till 2030.

What Jennifer Nelson is arguing in her case is that the song belongs to everyone, and should not be owned by any entity. When thinking of the important role the song plays in a very simple event, the celebration of someone's birthday and the commonality of the song's use, she could have a solid case. Unlike trade marks, copyright doesn't face the effects of genericization, where the trade mark has become eponymous with the product it represents - in other words the name has become intrinsically what most products in that category are called. Even if a song is deemed to being incredibly common or 'everyone's', it is still protected by copyright.

With the great extensions of American copyright terms and the strict nature of copyright as a means to protect your intellectual property, I have my doubts about the song being in the public domain. Albeit not the exact same case, the popularity or commonality of a book doesn't automatically place it out of strict protection and into the free use of the public, so what would make a song any different?

Source: Thomson Reuters

Domain Change

IP Iustitia has entered the real world of the Internet and now occupies the domain www.ipiustitia.com! Should you have the website bookmarked, both the old address ipiustitia.blogspot.com.au and the new one will work just fine, the old one will just redirect to the new address. If there are any issues with older content or links not functioning, please email me and the problem will be fixed posthaste.

This is the only change, so the content and ownership of the blog still remain the same.