By , August 07, 2020.

Keep Moving Forward: Performance of the Copyright Office during COVID-19 — Acting Register of Copyrights Maria Strong takes stock of the US Copyright Office’s work in the past twenty weeks since remote operations began.

U.S. Copyright Office Celebrates 150 Years of Fostering American Creativity and Innovation — Speaking of the US Copyright Office, it marked a notable anniversary this week. The U.S. Chamber’s Frank Cullen offers some celebratory remarks.

Loveland company Anatomy in Clay wins copyright ruling — A recent Tenth Circuit decision rejected defendant’s argument that plaintiff’s anatomical model was a “useful article” and thus excluded from copyright protection. In part, the court said, “The Maniken might be useful for teaching anatomy, but a fact finder could reasonably attribute this usefulness to the information that the Maniken conveys about human anatomy. If the Maniken’s usefulness lies solely in the information it conveys, the Maniken would not be a useful article.” Interestingly, the opinion does not cite once to the Supreme Court’s recent decision on useful articles, Star Athletica v. Varsity Brands.

Round Hill Music Files $32M Copyright Infringement Lawsuit Against TuneCoreBillboard reports on a recently filed lawsuit against indie distributor TuneCore, which alleges (complaint here) the company failed to license mechanical reproductions of musical compositions embodied in the sound recordings it distributed to download and streaming services.

YouTuber Wins Attorneys’ Fees in Clinton Party Copyright Case — “YouTube personality Carl Benjamin—known on the platform as Sargon of Akkad—won attorneys’ fees in Manhattan federal court on Wednesday after successfully defending a copyright suit over his mocking of a video taken at Hillary Clinton’s election night party. Comedian Akilah Hughes’ lawsuit was objectively unreasonable and meant to ‘inflict financial harm on Benjamin and to raise her own profile in the process,’ the U.S. District Court for the Southern District of New York said.”

By , July 31, 2020.

Internet Archive Answers Publishers’ Copyright Lawsuit — The nonprofit filed its response to a complaint alleging that its reproduction and distribution of copyrighted books is not infringing. Andrew Albanese of Publishers Weekly reports, “‘The Internet Archive does what libraries have always done: buy, collect, preserve, and share our common culture,’ reads the IA’s preliminary statement to its answer, contending that its collection of roughly 1.3 million scans of mostly 20th century books, many of which are out of print, is a good faith and legal effort to ‘mirror traditional library lending online’ via a process called Controlled Digital Lending (CDL).”

What’s Fair? Senate IP Subcommittee Contemplates Problems with Copyright Fair Use Regime — This week, the US Senate IP Subcommittee held a hearing to explore the intersection of the DMCA safe harbors and notice-and-takedown system with fair use. IPWatchdog recaps the discussion.

The AG Opinion in YouTube/Cyando: a regressive interpretation of the right of communication to the public — Eleonara Rosati analyzes the recent Advocate General opinion in a case involving copyright and user-uploaded content currently in front of the Court of Justice of the European Union.

Music Consent Decrees Give Unfair Boost to Tech Giants, DOJ Told — “The DOJ’s antitrust division Tuesday brought together Rimes and the heads of the nation’s top music publishing rights organizations to discuss whether the government should consider undoing nearly 80-year-old consent decrees with the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music Inc. (BMI). The decrees require them to license music to public venues on equal terms, set by a federal court.”

Blocking Piracy Websites — Analysis of a recent Canadian decision where “the Federal Court granted an injunction, demanding various ISPs (Internet Service Providers) in Canada block access to pirate subscription sites that stream the content of the plaintiffs – Bell Media Inc, Group TVA Inc and Rogers Media Inc.”

By , July 10, 2020.

Grammy Winner Maria Schneider Files Class Action Copyright Piracy Lawsuit Against YouTube, LLC Over Content IDJustia reports, “The lawsuit concerns copyright piracy on YouTube and alleges that YouTube’s copyright management tool, Content ID, ‘actually insulates the vast majority of known and repeated copyright infringers from YouTube’s repeat infringer policy’ and leaves plaintiffs in the class with ‘no meaningful ability to police the extensive infringement of their copyrighted work.'”

Authors Guild, Amazon, PRH File Suit Against E-book Pirate Site — It’s notable to see Authors Guild and Amazon on the same side in a copyright infringement case, but their interests happen to align in this lawsuit against what Authors Guild Executive Director Mary Rasenberger calls a “particularly egregious criminal enterprise” that “sells highly commercial books and passes itself off as a legitimate site.”

Tuned in: Music Modernization Act Updates and Related News — The US Copyright Office has a newsletter that provides updates on implementation of the MMA’s blanket license. Subscribe at the link or check out the archive of past issues, including the latest issue.

The MLC Announces Tools to Help Self-Administered Songwriters and Publishers “Play Their Part” — Speaking of the MMA, The MLC, which is charged with administering the blanket license, announced this week a set of tools for self-administered songwriters and publishers to help them get ready for the new license and make sure they are getting the royalties they are entitled to.

U.S. Copyright Office: Disconnecting Persistent Pirates is Not Always Preferred — Ernesto Van der Sar of Torrentfreak reports on a US Copyright Office response to a Senate IP Subcommittee letter asking follow-up questions about the Office’s recent Section 512 report, noting in particular, “The Copyright Office is clearly mindful of individual user rights.”

By , June 26, 2020.

Shampooing Baby Elephants, Buddha’s Tooth, and the World Intellectual Property Organization — Longtime copyright attorney Michael Remington recollects, “Almost three decades ago, the World Intellectual Property Organization (WIPO) invited Ralph Oman (then the U.S. Register of Copyrights), and me (at the time, a counsel to the House Judiciary Committee, specializing in intellectual property matters) to travel to Sri Lanka and participate in a ‘regional training course on intellectual property for developing countries of Asia and the Pacific.’ The setting was Colombo, the country’s capital; the timing, late July 1991. Our rough assignment was to discuss U.S. copyright law through oral presentations, interaction with trainees, and answers to questions. . . .”

South Africa President sends controversial copyright bill back to Parliament — Emmanuel Legrand reports, “South African President Cyril Ramaphosa has decided on June 16 to refer back to Parliament the controversial Copyright Amendment Bill and Performers’ Protection Amendment Bill for reconsideration. The President’s office said questions of constitutionality have been raised regarding certain provisions in the text.”

Court Reconsiders Mashable’s Win in Embedding Suit — Eriq Gardner of The Hollywood Reporter writes about an about face in a case that caught the attention of copyright fans (and includes a copy of the actual decision in the article). “In April, U.S. District Court Judge Kimba Wood granted a motion to dismiss with a provocative opinion that leaned on how Sinclair had signed up for Instagram service and had posted some of her work there. ‘Here, [Sinclair] granted Instagram the right to sublicense the Photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the Photograph,’ ruled Wood at the time. . . . In Sinclair’s suit against Mashable, Wood is now backing off her original conclusion just a bit. The judge maintains that by agreeing to Instagram’s terms, Sinclair authorized the social media service to grant users a sublicense to embed. But there’s a difference between having power and using power. ‘The Court does, however, revise the Opinion by finding that the pleadings contain insufficient evidence that Instagram exercised its right to grant a sublicense to Mashable,’ writes Wood in granting a motion for reconsideration.”

WIPO Releases Secure Content Timestamping Service — Bill Rosenblatt takes a look at an interesting new service from the World Intellectual Property Organization: “For a nominal price of CHF 20 ($21), you can obtain a token–a small file–from WIPO that contains a tamper-proof timestamp with a cryptographic hash of the file’s contents, evidence that you had possession of the digital file at a certain point in time.” As Rosenblatt correctly points out, such a service has no value in the United States due to the copyright registration requirement, but it may provide some value in countries where registration is not a prerequisite for litigation.

U.S. Copyright Office Announces Start of Eighth Triennial Rulemaking Proceeding under Section 1201 — “Section 1201 provides that the Librarian of Congress, upon the recommendation of the Register of Copyrights, may adopt temporary exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. The ultimate goal of the proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be in the next three years, adversely affected in their ability to make noninfringing uses due to the prohibition on circumventing access controls.”

By , June 19, 2020.

What You Need to Know About the Copyright Office’s Section 1201 Rulemaking — The US Copyright Office is holding a webinar on June 23 to provide an overview of section 1201 and the upcoming rulemaking proceeding. It will discuss the governing legal standards, the exemptions established by the last rulemaking, the Office’s streamlined procedure to renew existing exemptions, and the process for seeking new or expanded exemptions.

World Trade Organization: Saudis facilitated sports piracy — The WTO ruled in a long-running dispute over the beoutQ broadcasting network. ABCNews reports, “Saudi Arabia failed to take action to stop beoutQ’s operations and protect the intellectual property of rights holders, the WTO dispute panel concluded. The panel highlighted how beIN was prevented from hiring lawyers in Saudi Arabia to take action in the courts against the piracy.”

The Dutch DSM copyright transposition bill: safety first (up to a point) – Part 1 — Remy Chavannes at the Kluwer Copyright Blog takes a deep dive into the first bill transposing the EU’s DSM copyright directive into national law. Also check out Part 2 and Part 3.

Internet Archive to End ‘National Emergency Library’ Initiative — “Citing a copyright infringement lawsuit filed by publishers, Internet Archive founder Brewster Kahle announced this week that the IA’s National Emergency Library initiative will cease operating on June 16, two weeks earlier than its previously announced June 30 closing date.”

Photographer Selling Copyright to Nirvana’s First Major Magazine Cover Shoot — “Watermann says he has decided to sell the shoot because of the economic devastation brought on by the COVID-19 pandemic. ‘I shoot live music, and music is gone,’ he says. ‘More specifically, I’m a tour photographer. I travel around the world with my clients and document them performing every night… Because of the virus, big concerts were the first thing to be canceled this year and they aren’t coming back until next summer. Meaning I’ll have no real income for the next 12 months. So, I’m flipping an asset in order to keep my business running.'”

By , June 05, 2020.

Black lives matter.

How to Help Like Artists and the Music Industry Are Doing in the Wake of George Floyd’s DeathBillboard compiles a list of efforts from the music community to support protests and calls for reform in policing and racial justice. Many other sectors of the creative community—like publishing, video games, photographers, theatre, libraries, and others—have also responded and called for far greater efforts to address the long history of denying equal respect and dignity to black Americans.

U.S. Copyright Office roundup — my colleagues at the Office are certainly keeping themselves busy. This week, among other things, the Office announced it is soliciting public comments on best practices for the mechanical licensing collective to identify owners of unclaimed royalties under the MMA (the announcement was accompanied by a report on collective rights management practices around the world, which could help inform those best practices); it is also seeking public comments on copyright infringement by states and state entities, following the Supreme Court’s sovereign immunity decision in Allen v. Cooper; and it will be holding its ninth webinar on Copyright Office modernization, focusing this time on “the development of the online Copyright Public Record with a prototype that demonstrates simple keyword search, advanced search, filters, and the new design language of the Enterprise Copyright System.”

AFM & SAG-AFTRA Owes Session Musicians and Background Vocalists $46 Million — Here’s How Eligible Performers Can Get Paid — Under the statutory license for digital performance of sound recordings by noninteractive services like internet radio, “nonfeatured” performers, i.e., session musicians and background vocalists, are entitled to a percentage of royalties collected. A recent settlement has initiated a process to distribute accrued royalties to those performers who are entitled to those royalties but have until now not been identified or locatable. Digital Music News provides information here on how to claim those royalties.

Instagram just threw users of its embedding API under the bus — But at the same time, potentially good news for visual artists. Ars Technica reports, “Instagram tells Ars that it’s exploring the possibility of giving users more control over photograph embedding. Right now, Instagram users can block embedding of their posts by switching their Instagram account to private. But that will also prevent users on the Instagram platform from seeing their content, too, which can be a career liability for professional photographers. Right now, Instagram offers no option to make content public inside the Instagram app while disabling embedding on external websites.”

By , May 22, 2020.

Copyright Office Releases Report on Section 512 — The report is the culmination of nearly five years of public consultation and study and the first comprehensive study of the 1998 law providing online service providers with safe harbors from liability for copyright infringement by a U.S. government agency.

Ice Cube Says Mister Rogers Once Sued Him For His 1990 Song ‘A Gangsta’s Fairytale’ — The interesting copyright-related anecdote was revealed by the musician during a digital listening party for the 30th anniversary of his album AmeriKKKa’s Most Wanted.

Virtual Music Events Directory [Google Docs] — A highly useful living doc collecting both tools for musicians and speakers to use to hold virtual events during the pandemic as well as calendar and virtual event listings for promoting and finding those events.

Kris Ahrend (The MLC): “We will be ready to deliver on January 1, 2021.” — Emmanuel Legrand speaks with Kris Ahrend, CEO of The MLC, on the progress being made by the startup in preparing for the MMA’s license availability date next January.

Scientists Discover That Visitors to Oslo’s Munch Museum Are Destroying ‘The Scream’ by Breathing on It Way Too Much — They could also be screaming on it.

By , May 15, 2020.

Feel Like Screaming? Google Has a New Smartphone Filter That Turns You Into Munch’s ‘Scream’ and Other Famous Artworks — Last year’s AI and copyright hypotheticals are today’s apps. (Though the works in this particular app appear to all be in the public domain, so no actual copyright issues here).

Minister’s Widow Can Get Attorneys’ Fees in Ninth Circuit Copyright Case — An issue of first impression for the Ninth Circuit: whether the Copyright Act’s attorney’s fees provision applies to declaratory judgment actions. The court held it does, and remanded to determine whether the copyright owner here can get attorneys fees after defeating a claim of copyright abandonment.

Carnegie Mellon University Libraries Create Remote Book Delivery — “CMU Libraries’ Technical Services team collaborated with the Research and Academic Services department to implement the new service, delivering books to faculty and graduate students. The staff built workflows to check the availability of print material online from approved vendors and to order and process the material, then worked to ensure that patrons’ information is securely acquired so that books can be delivered to their home addresses. Finally, the Technical Services staff developed a checklist for each order to track the book from the original request to the delivery date. Only vendors, including Amazon and ABEBooks, that are willing to ship directly to students can be considered.”

Movie & TV Giants Obtain Court Injunction to Shut Down Nitro TVTorrentfreak reports, “A coalition of entertainment companies headed up by Universal, Paramount, Columbia, Disney and Amazon has obtained an injunction to shut down ‘pirate’ IPTV service Nitro TV. A court in California has ordered all individuals acting in concert or participation with the service to stop infringing the companies’ copyrights, including by disabling its domains.” From the court decision: “the court must pay particular regard for the public consequences in employing the extraordinary remedy of injunction. The public has a significant interest in the lawful enforcement of United States copyright laws. Conversely, Defendant’s alleged copyright infringement does not offer any lawful benefit to the public. Defendant has offered no lawful personal interest for the Court to consider. Thus, the public interest is best served by an injunction of Nitro TV.” (Internal citations and quotations omitted).

Sohm v. Scholastic, Inc. (2d Cir) [PDF] — In a decision published Tuesday, the Second Circuit joined the Ninth Circuit in holding that the registration of a compilation of photographs by someone who holds the rights to the individual works also effectively registers the underlying individual photos where the compilation does not list the individual authors of the individual photos.

By , May 08, 2020.

Symposium: Exploring Copyrightability and Scope of Protection — The Columbia Journal of Law & the Arts has published its issue dedicated to Columbia Law School’s Kernochan Center for Law, Media and the Arts annual symposium, held last October. The symposium covered such topics as “whether and how copyright attaches to new and emerging forms of creative expression, as well as doctrines, such as merger and scènes à faire, which may render unprotectable key elements of an otherwise copyrightable work.”

Places a Seuss-Trek Mashup Will Go May Include Back to CourtBloomberg Law‘s Kyle Jahner covers the recent Ninth Circuit oral arguments in Dr. Seuss Enterprises v. ComicMix. The court is reviewing the lower court’s decision holding defendants’ mashup of Dr. Seuss and Star Trek to be a fair use.

21 and illegal in all states? The German Pelham court confirms when sampling is illegal — In a sad bit of irony, the decision finding the use of a two-second sample of Kraftwerk’s “Metall auf Metall” (Metal on Metal) infringing came out just days before the world lost Kraftwerk co-founder Florian Schneider.

Copyright in the Age of Artificial Intelligence — The U.S. Copyright Office has posted videos from an all day symposium it co-sponsored with the World Intellectual Property Organization. Tune in to hear discussions regarding “the relationship between AI and copyright; what level of human input is sufficient for the resulting work to be eligible for copyright protection; the challenges and considerations for using copyright-protected works to train a machine or to examine large data sets; and the future of AI and copyright policy.”

YouTube Rippers and Record Labels Clash in US Appeals Court — The question of when U.S. courts have personal jurisdiction over operators of foreign websites took center stage as the Fourth Circuit heard oral arguments in UMG v. Kurbanov.

Finally, a copyright hypo: A Webcam Company Is Demanding Payment From an Artist Who Used Screenshots From Its Feeds to Document Italy’s Deserted Streets. Are these images protected by copyright?