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

Words Hurt - Disparaging Trademarks and Free Speech Collide

Freedom of speech or expression has often been a sore point of contention for those wishing to protect a full freedom of expression (i.e. no restrictions on speech whatsoever) and those who want to limit it within a certain space to ensure a more harmonious society (i.e. the prevention of hate speech, for example, but allowing for a broad freedom of expression nonetheless) - although the former surely does not prevent a harmonious society as a concept itself. With that in mind, intellectual property is no exception, after all, most ways of expression yourself and/or marking your goods to distinguish them often tread the line of good taste and offense in order to further their respective goals. Especially with trademarks there are certain limitations on what you can use as a registered trademark, but does a limitation on your use of said marks prohibit your effective freedom of speech?

This issue was largely brought to light in the recent Washington Redskins trademark litigation, where the offensiveness of a trademark potentially disparaging native Americans was a heavy point of contention, and the Redskins were subsequently stripped of their trademark (although the loss of their mark is not as straightforward as that) due to the disparaging nature of the mark. However, the Redskins never brought a claim under the First Amendment of the US Constitution.

The matter of free speech was brought into the limelight regarding the refusal to register a trademark after a US Court of Appeals decision in Re: Simon Shiao Tam where the Court affirmed a prior decision to refuse the mark "THE SLANTS" due to its offensiveness against people of Asian descent. The mark related to the name of a rock band called The Slants, fronted by Mr. Tam (including several other members of Asian descent as well). The Court also promptly concluded that there was no impairment of Mr. Tam's First Amendment rights, following the precedent set in Re: Robert L. McGinley some 30 years ago, where the United States Court of Customs and Patent Appeals saw that "...the PTO's refusal to register... [a] mark does not affect his right to use it. No conduct is proscribed, and no tangible form of expression is suppressed. Consequently, [the mark's holder's] First Amendment rights would not be abridged by the refusal to register his mark". Arguably, prima facie at least, a refusal of registration does not prevent the use of a mark, but it does, however, prevent its effective protection under trademark law and can cause issues for the proper monetization of a mark in other commercial endeavors should the holder's venture become more successful than its own field allows it. Albeit this does not affect the use or 'expression' in the mark, but mainly the commercial aspects surrounding the mark.

Peter never was a man of consistency

What makes the decision in Re Simon Shiao Tam interesting are the remarks made by Justice Moore, although not dissenting, after the majority's decision to reject the mark (after which the Court of Appeals issued an Order for an en banc hearing to decide the issue). In her Honor's mind: "...it is unquestionably true that trademarks are protected speech under Supreme Court commercial speech jurisprudence" and that "...the government has conceded that “[t]rademarks are a form of commercial speech.”. Because a trademark identifies the source of a product or service for users, it is protected commercial speech". This writer will wholly admit that his knowledge of US trademark law is not as extensive as he'd hope to be, but the argument presented here seems a tad flimsy. The use of a mark in commerce, on the face of it, is not expressing a point or a view, but merely the distinction of a product or service from other similar ones. The more 'offensive' a mark does not correlate to a higher form of expression necessarily, even if it's to utilize or bring to light racial issues. Yet, the US courts will know more of the substantive side of things, so this writer will not address any other jurisprudential issues here, and awaits the en banc decision in Re Tam with interest.

Are there any freedom of expressions issues in the UK in relation to the same subject matter? Under the Trade Marks Act 1994 a mark can be refused registration if it is "...contrary to public policy or to accepted principles of morality". This would, arguably, cover any racial slurs or other content deemed offensive in the public's view (such as the name The Slants, potentially). Also, under the Public Order Act 1986 speech inciting racial hatred is not allowed, although the freedom of expression is sacrosanct under the Human Rights Act 1998. Arguably freedom of expression is narrower than the one protected by our cousins across the pond, and would not allow for the use of negative language even in trademarks, provided the mark is against public morality (and negative racial connotations, even if hidden behind good intentions, would probably be). This view was firmly illustrated by the UK Intellectual Property Office's decision in Basic Trademark SA's Trade Mark Application, where a mark was refused under the Trade Marks Act's morality provision, and was seen to not infringe Article 10 of the European Convention on Human Rights (and therefore, the Human Rights Act above). The case does, however, highlight the need to balance both interests: "...[the] right to freedom of expression must always be taken into account without discrimination under s3(3)(a) [of the Trade Marks Act] and any real doubt as to the applicability of the objection must be resolved by upholding the right to freedom of expression, hence acceptability for registration". The UK does have more questions in terms of freedom of expression and registered trademarks, but the balancing of both interests does take it into account even in this area of law.

All-in-all the line between the protection of a legitimate freedom of speech (or a more open freedom, such as in the US) and the curbing of possible moral outrage is a fine one, and both interests should be balanced in an assessment of the registrability of a mark. Nevertheless, it is hard to draw a strict comparison with EU and US rights due to their big differences, but both jurisdictions do see a clear need for the allowance of expression even in the world of trademarks. This writer for one, as said above, awaits the en banc decision of the US Court of Appeals in the Tam case, and it will be interesting to see whether trademarks are a true form of expression under US law, and therefore protected by the First Amendment.

Source: World Trademark Review

Retrospective - IP Infringement and Free Speech

Almost as holy as expression in its many forms, is the fact that, in most countries at least, expression is largely free of limitations, and that even dissenting opinions can, and should be voiced. With this vast freedom, especially in the United States, one can argue that the freedom of expression can be misused and utilized for nefarious means, or to harm others or their more intangible assets such as reputation or notoriety. In any instances where one's reputation is harmed through the freedom of expression (assuming that expression falls within the letter of the law), those parties would clearly want to prevent that speech through any means necessary; even more questionable ones. The attempted curtailment of speech has been discussed on this blog before, but that still leaves the question of can intellectual property rights be used to prevent freedom of expression? A case in the US Court of Appeals attempted to face this very question some decades ago.

The case in question was Rogers v Grimaldi, decided in the late 80s, which concerned a movie made by Frederico Fellini for the defendants in 1986. The subject matter of the movie, wonderfully titled as "Ginger and Fred", were two fictional cabaret dancers, Pippo and Amelia, who were known for their imitation of both Ginger Rogers (an Academy Award winning actress in the 1940s, and the plaintiff in the case), and Fred Astaire, who Ms. Rogers often co-starred with in various productions. The cabaret dancers were known as "Ginger and Fred" to their viewers in Italy, and the movie's title, and subsequent plot, refers to their reunion after years of retirement. After distribution within Europe and the US the movie was received rather negatively, and undoubtedly in the wake of this negative publicity, Ms. Rogers sued and claimed false designation of origin under 15 USC section 1125 and a violation of her common law rights to publicity.

Effectively what the case is assessing is a balance between free speech and the protection of an individual's (or entity's) rights in their trademarks, albeit more in the context of passing off than registered trademarks (more on which can be found here). Justice Newman presented the question well in the majority's opinion: "Poetic license is not without limits. The purchaser of a book, like the purchaser of a can of peas, has a right not to be misled as to the source of the product. Thus, it is well established that where the title of a movie or a book has acquired secondary meaning — that is, where the title is sufficiently well known that consumers associate it with a particular author's work — the holder of the rights to that title may prevent the use of the same or confusingly similar titles by other authors".

Frank was worried he would not be heard

In answering this question, the Court of Appeal approached the matter through a balance of public interest and those of any affected parties: "We believe that in general [15 USC 1125] should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. In the context of allegedly misleading titles using a celebrity's name, that balance will normally not support application of the Act unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work". What Justice Newman's opinion states, is that the potentially misleading title has to apply to the work it represents, or in other words, has to showcase or illustrate the work somehow, and not merely mislead a person to pay for the work thinking it is connected to a potentially affected party such as Ms. Rogers. Arguably this approach is sensible, as the use of IP rights to protect those rights has to be legitimate, just as much as the use of those rights in conjunction with newer works is. Free speech should be promoted through legitimate use, and not stifled merely to further shallow interests such as fame.

The Court of Appeal lengthily discuss the nuances of this approaches application, yet, what remains relevant is the use and applicability of those rights to the underlying work, and the legitimacy of that use. Ms. Rogers relied heavily on survey and anecdotal evidence in establishing a claim of false advertising of designation of origin; however this was dismissed handily by the Court: "...the title "Ginger and Fred" surpasses the minimum threshold of artistic relevance to the film's content. The central characters in the film are nicknamed "Ginger" and "Fred," and these names are not arbitrarily chosen just to exploit the publicity value of their real life counterparts but instead have genuine relevance to the film's story". No amount of confusion, arguably at least, will counteract freedom of speech, so long as the use of a name or names is relevant to the underlying work. As such the Court of Appeal dismissed Ms. Rogers' appeal.

Freedom of expression poses an interesting balancing act of human rights and commercial interests (or even other human's rights against said expression). The European Court of Human Rights weighed on the issue of copyright interfering with freedom of expression in the case of Ashby Donald and Others v France (case text only in French), and deemed that "...a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention". Even so, the case saw that the copyright interests asserted did trump the appellants' human rights, as their interests were purely commercial and did not contribute to a specific expression or discussion of opinion. As such, the case can be seen to align with the view that intellectual property rights should not hinder legitimate expression, but can, and should, be used to protect commercial interests.

Overall one can appreciate that freedom of speech is seen as a valuable tool for discussion and a strong point of public interest, yet it should not overshadow the protection of some rights, at least in some instances. A blatant use of copyrighted material, or trademarks, for the purposes of making a quick buck should be dissuaded; however one man's folly should not silence a nation.

Liberation Music Takes on Lawrence Lessig

The haven of the Internet for all that is video, YouTube, often presents an interesting situation for both copyright holders and content distributors. While there are guidelines and measures in place on YouTube's part to prevent infringing material from being uploaded to the website, often this type of content slips through the cracks. In order to address issues such as this, content owners can submit a copyright infringement notification, effectively having the video removed from the service. There have been instances where content has been frivolously claimed to infringing copyright, causing legitimate videos to be removed from the site when there really is no basis for such a claim. In a recent turn of events such a claim was submitted over a video of a lecture by Lawrence Lessig, arguably one of the greatest legal minds in modern copyright; and Mr. Lessig chose to take action.

The Electric Freedom Foundation has taken action on behalf of Mr. Lessig in a recent complaint to the District Court of Massachusetts which involves the takedown of a lecture video by Mr. Lessig entitled "Open". In their complaint the EFF argue that Liberation Music, an Australian record company, have frivolously claimed that Mr. Lessig's lecture, which contained a short piece of the song Lisztomania by Phoenix, infringed their copyright due to the use of the song which is owned by the record company. The EFF claim that the use of the song fell under fair use, and therefore would not be an infringement of copyright.

In addition to seeking the use of the song to being declared fair, Mr. Lessig is also seeking damages under 17 USC § 512, which limits the liability of parties in relation to materials online. While the provision protects certain uses of materials it also provides relief in the instance of misrepresentation, which means that should a copyright holder submit a claim for infringement, knowing that it does not, they can be held liable for damages.

Lawrence Lessig was just as baffled as you were over the claims

In expressing his reason to take action Mr. Lessig stated that: "The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them... I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight." Given the trigger-happy nature of some DMCA takedown claims, Mr. Lessig's position can be argued to being completely valid, but raises the concerning notion that it needed to happen to one of the premier figures of copyright for there to be action taken against these misuses. Should  Mr. Lessig prevail in his claim, companies surely should be more careful when submitting their claims in the future, and providing an avenue for any frivolous claims should the companies not take adequate steps to insure their claims are valid.

Clearly this matter will be taken to court, as Mr. Lessig's intentions are not to seeking merely monetary compensation, but to set a precedent. The future of the case shall be discussed once it has been heard in the District Court sometime later this year.

Source: Ars Technica