‘Star Trek’/Dr. Seuss Mashup Deemed Copyright Fair Use by Judge— The decision, involving a novelty book that combines Seussian style rhymes and artwork with Trekkie characters and other elements, distinguished the Federal Circuit’s Oracle v Google decision and analogized to the Second Circuit’s decision involving a Naked Gun 33 1/3 promotional poster that parodied Annie Liebowitz’s famous portrait of a pregnant Demi Moore to find the force was strong with fair use.
The Fourth Estate Decision and Copyright Registration — US Copyright Office General Counsel Regan Smith dives into the Supreme Court’s recent decision in Fourth Estate Public Benefit v Wall-street.com, which held that the Copyright Act requires copyright owners to have a registration certificate from the Copyright Office (or have had their application refused by the Office) before filing suit for infringment. Smith also details the efforts the Office is taking to reduce the time it takes to process registration applications.
Music Community Calls For Building A Better Digital Attribution And Credits System — SAG-AFTRA, A2IM, RIAA, and Artist Rights Alliance this week announced a collaboration to build more robust digital attribution and credits, saying “Attribution recognizes artistic achievement, helps creators connect, collaborate, and appreciate each other’s work, opens up new pathways for fans to trace artistic influences and find new music, and aids accuracy in the digital royalty economy.”
In Appeal of Russian Stream-Ripper Ruling, RIAA Says Court Gave ‘Carte Blanche to Internet Pirates’ — The labels are appealing a decision that held a pair of Russian “stream ripping” sites, which used a US domain name and enabled US users to infringe US copyrights through a US service (YouTube) could not be haled into a US court.
Facial recognition’s ‘dirty little secret’: Millions of online photos scraped without consent — The “without consent” here refers to the people who were the subjects of the photos. The copyright owners of the photos themselves already (perhaps inadverdantly) gave consent for their photos to be used to train surveillance systems by releasing them under Creative Commons licenses.
SCOTUS Resolves Court Split in Fourth Estate, but Registration Concerns Remain — I wrote about the Supreme Court’s decision in Fourth Estate Public Benefit v Wall-Street.com, which it issued on Monday, and its significance for Copyright Office modernization efforts.
‘Fortnite’ Legal Dance Battles Paused Following Supreme Court Ruling — Ashley Cullins of The Hollywood Reporter reports that the plaintiffs in a set of suits involving the alleged unauthorized reproduction of dance moves in the popular video game Fortnite have dismissed their claims following Monday’s Fourth Estate decision. They will likely be refiled once the Copyright Office has either registered or refused the pending applications, in line with the Supreme Court’s holding.
Supreme Court Will be Asked to Permit Resales of Digital Music Files — ReDigi is likely seeking to file a cert petition asking the Supreme Court to reverse the decision of the Second Circuit, which held that the service’s unauthorized reproduction of digital music files is not permitted under the first sale doctrine or fair use. ReDigi has until May 11 to file its petition.
Spotify, Google, Pandora & Amazon Plan to Appeal Copyright Royalty Board Rates — Colin Stutz of Billboard reports, “Spotify, Google, Pandora and Amazon have filed notices they intend to appeal the Copyright Royalty Board’s (CRB) rate determinations finalized last month that would boost record labels and digital services’ payments to music songwriters and publishers by 44 percent over a four-year term… This marks the first time that the Section 115 rate determinations for music publishing rates has been appealed.”
The Sharing Economy was Always a Scam — “Though its origin is vague, many credit the introduction of the term ‘sharing economy’ into the broader tech lexicon to Lawrence Lessig, who wrote about sharing in his 2008 book Remix: Making Art and Commerce Thrive in the Hybrid Economy.”
A philosopher argues that an AI can’t be an artist — “We can’t count the monkey at a typewriter who accidentally types out Othello as a great creative playwright. If there is greatness in the product, it is only an accident. We may be able to see a machine’s product as great, but if we know that the output is merely the result of some arbitrary act or algorithmic formalism, we cannot accept it as the expression of a vision for human good.”
Scribd Files Complaint Against DRM Circumvention Tool — Section 1201 prohibits on circumventing technological measures protecting access to copyrighted works. Actions for violations of Section 1201 may be brought by “any person injured.” So it was only a matter of time before we saw an entity besides a copyright owner file a 1201 lawsuit.
Books Digitization and Demand — Mark Seeley takes a look at a recent paper that examines demand for books in response to the Google Books Project. “[A]uthors and publishers were at the time the suit was initiated against Google heavily engaged in e-book production and creating an e-book market. It is possible that the Google project provided more incentive in this development, but the concern was not about print—it was about unauthorized use, print or online, without compensation.”
Fair Use Week Again. But Why? — Newhoff writes, “Perhaps future legal experts will find that the most important decision came in the ReDigi case, denying the fair use defense of this business, which sought to create and exploit a market for ‘used’ digital music files. One reason this decision my be seen as a landmark is that Judge Leval himself wrote the opinion and added further nuance to his own ‘transformative’ doctrine, which has been the cause of considerable confusion in other cases.”
Kodak’s Kodakit Asks Photographers to Give Up the ‘Entire Copyright’ — Petapixel’s Michael Zhang highlights some of the extraordinary conditions that photographers must agree to before selling their photos through what has been dubbed here the “Uber of photography.”
An Empirical Study of Transformative Use in Copyright Law — How dominant has the transformative use inquiry become in fair use analysis since its introduction? And what effect has it had on shaping fair use outcomes? Law professor Jiariu Liu assembled a set of all reported transformative use decisions through 2017 to see what the data tell us.
The Investment Firm That Commissioned Wall Street’s ‘Fearless Girl’ Is Suing the Artist for Making Replicas — A teaching moment for artists who create works for others to understand what rights they retain for those works (and to determine in advance of any agreement what rights they may want to retain). Also another teaching moment for reading the actual complaint rather than relying on headlines. The complaint alleges only several breach of contract claims. That includes breach of both trademark and copyright agreements in the contract, but no allegations of trademark or copyright infringement per se. Of course, the question going forward is to what extent are any of the contract claims actually copyright infringement claims and/or preempted by the Copyright Act. A good law school exam hypo.
‘Fortnite’ Law Firm Reports Someone Tried to End Dance Lawsuits With Fake Emails — A bit of drama this week in the ongoing litigation involving claims the popular video game incorporated protectable dance moves without authorization. Variety reports that an email that appeared to originate from the plaintiffs’ law firm was sent to the US Copyright Office, asking it to reject its copyright claims.
Studios Sue Omniverse in TV Streaming Crackdown — On the heels of a successful settlement with streaming device maker Dragon Box, studios have sued Omniverse, alleging the company serves as a “hub” for feeding unauthorized content to other illegal streaming services.
Appeal from the victims of Controlled Digital Lending (CDL) — This week, a group of 38 organizations published the following appeal: “As working writers, translators, photographers, and graphic artists; as unions, organizations, and federations representing the creators of works included in published books; as book publishers; and as reproduction rights and public lending rights organizations; we oppose so-called ‘Controlled Digital Lending’ (CDL) as a flagrant violation of copyright and authors’ rights.” An accompanying FAQ explains the practice of CDL, why it falls beyond the bounds of copyright law, and why it harms authors and creators.
EU Copyright Directive: Breakthrough — Agreement on text for the new Directive was reached yesterday, after months of negotiations. See DSM Watch: Crunch Time for the Copyright Directive for more background, along with press releases about the text from both the European Commission and European Parliament. The text must now be translated into 23 other languages and passed by the EU Parliament.
The Copyright Directive: how the mob was told to save the dragon and slay the knight — The European Commission also published this fiery post on Medium following the agreement. “Of course, we know from recent elections and referendums that simple memorable slogans — however untrue or unobtainable — can go a long way to winning over hearts, minds and voters. And so it was, that the wholly inaccurate phrases ‘link taxes’ and ‘censorship machines’ started to be part of the campaign against the proposed Copyright Directive. Never let the truth get in the way of a catchy slogan.”
Copyright Office Refuses Registration for ‘Fresh Prince’ Star’s ‘Carlton Dance’ — Eriq Gardner reports, “In correspondence last month that was surfaced on Wednesday in California federal court, Saskia Florence, a supervisory registration specialist in the Office’s Performing Arts Division, told Ribeiro’s attorney that registration must be refused because his claimed ‘choreographic work’ was a ‘simple dance routine.'”
Stolen Artwork Is All Over Amazon — And Creators Want The Company To Do Something About It — BuzzFeedNews reports, quoting one creator as saying, “The laws are there. They should be benefiting people exactly like me — people who make their own work. … But instead, these companies don’t value what they’re selling and are making it impossible for small businesses, like mine, to stay in our lane.”
Music Modernization Act: Labels and Publishers Back NMPA’s Bid to Run New Mechanical Rights Society — “The NMPA, in tandem with the Nashville Songwriters Association International (NSAI) and the Songwriters of North America (SONA) says it is being supported in its bid by the ‘overwhelming majority of copyright holders who together represent the majority of musical works in the US’.”
Minot on the Role of Blackstone in the 18th Century — This well-researched student note suggests that the conventional wisdom about Blackstone’s role as “oracle of the law” during the Founding Era is not quite accurate.
GTA V Cheat Maker Has to Pay $150,000 in Copyright Damages — According to the complaint, the defendant infringed Take-Two’s copyright in two ways: by continuing to play the game after breaching a condition of the license requiring licensees not to cheat (among other conditions), and by preparing an unauthorized derivative work of the game.
Allen v. Cooper — The plaintiff in a case involving copyright and sovereign immunity has asked the Supreme Court to review a Fourth Circuit decision holding that Congress did not validly abrogate state sovereign immunity when it passed the Copyright Remedy Clarification Act in 1990. Yesterday, the petition found support from amici, including former Register of Copyrights Ralph Oman, the RIAA, and a group of authors and scholars which include David Nimmer.
Will the Supreme Court Review Oracle v. Google? Please? — Attorney Lee Gesmer takes a look at the two issues Google has asked the Supreme Court to review in its long-running lawsuit with Oracle over its copying of Java code.
How the Iconic Photo ‘Migrant Mother’ Came to Be — A great video that looks at the creative process that went into Dorothea Lange’s 1936 photograph.
How Colorist Loren White Makes Footage Pop Off the Screen — “A relatively recent entrant in the field of Hollywood jobs, coloring – or ‘color grading’ – is a digital art that involves creating a ‘look’ for a project that remains consistent from start to finish. Achieving that look can entail matching a cloudy sky from one angle to the sunny sky of another, making onscreen objects ‘pop’ such as eyes or clothing, imbuing a period feel, or a combination of all those things.”
RIAA Appeals Dismissal of Major Labels’ Case Against Russian Stream-ripper — “Last week, a federal judge in the Eastern District of Virginia dismissed a copyright infringement case brought by Universal Music, Sony Music and 10 other labels against the operator of Russian stream-ripper FLVTO.biz, ruling that the court lacked jurisdiction over the foreign site. But the recording industry isn’t done fighting yet.”
Stream-ripping Site Acted Illegally, German Court Rules — Torrentfreak reports, “The Court found that while users had requested the tracks, it was ZeeZee that fetched and reproduced them, later making them available for download. The infringing copies, therefore, had to be attributed to ZeeZee, not the end users of its service, in line with the limits on private copying highlighted in a 2017 ruling by the Court of Justice of the European Union.”
Copyright Office Modernization Webinar Series Kicks Off — If you register copyrights and are interested in the US Copyright Office’s efforts to modernize its systems, you’ll want to check out the first in a series of webinars that the Office is planning on holding to provide updates on its ongoing efforts. The fun begins next Thursday, January 31, at 12pmET.
Digital Media is a Wasteland — Writer John DeVore pens this series of eminently quotable observations on the last two decades of online media. Example: “Opinion is easy to produce and goes stale quick, like a donut… There is nothing wrong with the opinion business, but I just don’t think its wise for America to transform into an opinion-based economy. Facts are fussy. It takes work to dig them up and crack them open. Skill. Journalism isn’t cheap. But a fact is valuable. For instance: ‘a hurricane is coming’ is an important fact to know. ‘There is tainted lettuce at the grocery store’ is another.”
TVEyes Will No Longer Carry Fox News in Negotiated End to Big Copyright Fight — At one time, there was concern that the news clipping service would prevail on its fair use defense, broadening the doctrine even further beyond its original purpose of complementing the goals of copyright, but last year the Second Circuit decisively concluded the 24/7 copying and commercial redistribution of Fox News’ copyrighted content was not fair use, and after an unsuccessful attempt at Supreme Court review, the two parties have reached a settlement.
Writer Associations Condemn Unauthorized Digital Scanning and Lending — The Writers’ Union of Canada has joined its counterparts in the US and UK in a campaign against the Internet Archive’s efforts to lend digital copies of books it has scanned regardless of copyright status. The legal basis for such controlled digital lending suffered a significant blow after last month’s Second Circuit decision in Capitol Records v ReDigi rejected applying fair use to permit the transfer of digital files of copyrighted works.
Netflix Joins the Motion Picture Association of America — It was announced this week that the streaming service will become a part of the 97-year-old trade association for film studios. As Variety reports here, the service also recently dropped ties with the Internet Association, a trade association “which represents many tech giants like Google, Amazon, Snap and Facebook.”
100% DIY: interview with cellist Zoë Keating — The composer and cellist discusses the challenges and rewards of taking the DIY route to get her music to audiences.
Effect of a “No-Deal” Brexit on IP in the UK — It has been a whirlwind week in the world of UK politics, but what happens to IP if the country leaves the EU without a deal in place? Terese Saplys, Deborah J. Kirk and Grace Erskine of Latham & Watkins breaks it down.
How is the USPTO Operating During the Federal Government Shutdown? — The agency, which, among other duties, provides copyright policy advice to the Executive Branch, is able to continue to operate during the shutdown using reserves from prior year fee collections, though, as Patentlyo points out here in more detail, those reserves will eventually run out.
AG Szpunar advises CJEU to rule that quotation exception is not limitless and that there is no fair use in the EU — Eleonora Rosati looks at the advisory opinion at IPKat. “The case is currently pending before Germany’s Federal Court of Justice, which has stayed the proceedings and asked the CJEU to clarify, among other things, how far the ‘quotation’ exception can go and what discretion EU Member States enjoy when transposing and applying relevant EU copyright directives.”
Vimeo to pay €8.5mln damages to Mediaset — The decision from an Italian court weighs in on the liability of an online video service.
Argument analysis: Justices wade deep into the copyright weeds — On Tuesday, the Supreme Court heard oral arguments in Fourth Estate Public Benefit Corp v Wall-street.com, a case that will determine when a copyright owner has satisfied the registration prerequisite for filing an infringement lawsuit—can she go to court as soon as she has sent the registration materials to the US Copyright Office, or must she wait until the Copyright Office has either issued a registration certificate or refused the registration? Courts have split on the question, and University of Michigan law professor Jessica Litman recaps the Supreme Court’s discussion. A full transcript of the oral arguments is available here.
Argument preview: Justices to consider limits on awards of “costs” to prevailing parties in copyright cases — Two copyright cases at the Supreme Court in two weeks! On Monday, the Supreme Court will hear arguments in Rimini Street v Oracle to determine what types of court costs a court may award a prevailing party in copyright litigation under 17 USC § 505. Columbia law professor Ronald Mann previews the issue, which he considers “a textbook problem of statutory interpretation.”
Does it pay to be a writer? — From the New York Times, “’In the 20th century, a good literary writer could earn a middle-class living just writing,’ said Mary Rasenberger, executive director of the Authors Guild, citing William Faulkner, Ernest Hemingway and John Cheever. Now, most writers need to supplement their income with speaking engagements or teaching. Strictly book-related income — which is to say royalties and advances — are also down, almost 30 percent for full-time writers since 2009.”
It’s Still All About the Music… And Labels Remain at Its Heart — A new report from Musonomics highlights the transformation record labels have undertaken over the past two decades. “In today’s environment, it’s no wonder that artists seek to partner with label teams to achieve their dreams and succeed both creatively and commercially. This report shows why artists of all stripes seek to collaborate with a label instead of taking any of a multitude of other paths available, and why the most listened-to artists are backed by labels.”
Tech Expertise in Congress, Additional Thoughts — The question of whether policymakers can benefit from additional tech expertise is sometimes raised in the copyright sphere. William Rinehart cautions that the answer is not an unqualified yes: “Let’s assume for the moment that legislators do become more technically proficient by any number of means. If policymakers are normal people, and let me tell you, they are, the result will be overconfidence of one sort or another. In psychology research, overconfidence includes three distinct ways of thinking. Overestimation is thinking that you are better than you are. Overplacement is the belief that you are better than others. And overprecision is excessive faith that you know the truth.”