Industry-Wide Survey Reveals 67% of Professional Photographers Are Affected by Unauthorized Use of Photos — “According to a recent industry survey by Professional Photographers of America (PPA) on the prevalence and impact of copyright infringement among professional photographers, 67% of the nearly 2,000 respondents said they have had photographs used without their permission. Of that group, more than half estimate unauthorized uses of their images totaled five or more in the past five years.”

The Hunger Games: Mockingjay – Part 2‘s Production Designer on Creating the Capitol — A look at the efforts that went into translating the scenes from the book into physical sets for the final installment of the Hunger Games series.

Google’s continued do-si-do around its piracy pledge — Ellen Seidler: “Google pretends to be working on its piracy problem, but when you drill down it’s clear that the tech giant is doing everything it can to avoid taking action or responsibility. I hope those House members who sat and listened to Mr. von Lohmann will not take him at his word, but instead, examine actual facts. Google still has a very long way to go when it comes to fighting piracy.”

YouTube to Pay Fees for Some Video Makers to Fight Takedowns — The most powerful company on the planet says it may offer help to as many as four of its users.

‘All You Need to Know About the Music Business’ Author Donald Passman on ‘Freemium’, New Realities — Highlights from the latest edition of the guidebook to the music industry, with thoughts on the vinyl boom, consent decrees, and freemium.

Previously on Copyhype — On Wednesday, both parties in Fox News v. TVEyes told the court they intended to appeal the case to the Second Circuit. Fox News is appealing the court’s September 9, 2014 order, which I wrote about in Fox News v TVEyes: Fair Use Transformed.

Judge Restricts Sharing of Fox News Clips Through Email and Social Media — Following an extraordinarily broad fair use decision last year and a second, narrower fair use decision last summer, Judge Hellerstein this week ordered a somewhat surprisingly broad permanent injunction against news clipping service TVEyes, which had been sued by Fox News for copyright infringement. The injunction prohibits: “Enabling users to download to their own computers video clips of content telecast on the Fox News Channel or Fox Business Network. Enabling users to view FNC or FBN content by searching by date, time and channel. Enabling users from sharing video clips of FNC or FBN content on social media websites rather than by personally directed emails, with further limitations.”

FilmOn Can’t Use Compulsory Copyright License, Judge Says — The Aereo clone won a victory in a California court last July when a judge ruled that it could qualify for a cable compulsory license under the Copyright Act. But this week, in parallel litigation, a DC court judge ruled the opposite. The sealed ruling sets up a potential circuit split on the interpretation of 17 USC § 111.

Music piracy, copyrights and royalties in Ivory Coast — Music Africa reports: “Piracy does not only stifle distribution houses and producers. The entire chain of the music industry is affected. Recording studios no longer generate income, since there are very few albums produced. Musicians are given no contracts to sign. Graphic designers who make the covers of CDs and especially the Ivorian Office for Copyright (BURIDA) are all experiencing the downfall. Since 2006, for example, according to BURIDA figures, the number of musical registrations fell from 870 000 to 320 000.”

Google-chaired think tank says Google’s No.1 for digital rights — Orlowski: “Just fancy that! A Washington think tank chaired by Eric Schmidt, Alphabet Inc’s executive chairman, has given Alphabet Inc. an award for ‘protecting your digital rights’.”

YouTube is a hosting provider, but one with extensive duties of care, say two German Courts — The German word for “take down, stay down” is “Stoererhaftung”. “Stoererhaftung requires that YouTube has breached its duty of care after having been notified of an infringement. This duty of care (arising with notification) does not only include a mere takedown of the infringement notified, but also a stay down and the prevention of other infringements of the same kind which are also obvious. This concept applies to YouTube according to the Hamburg court.”

The Peanuts Movie‘s Animation Supervisor on Getting the Gangs into 3 Dimensions — I admit to being a bit skeptical after seeing trailers for the new Peanuts Movie, but this sounds very interesting. “We obviously started out just by studying Schulz’s wobbly pen line, his cartoon line, and the four panel strip. We definitely looked at the Christmas and Halloween specials as the Hallmark classics of the Peanuts. We studied the movies as well. We had access to every single comic, movie, special, even the commercials that they did way back before they did the specials. We studied Bill Melendez [Schulz’s trusted animator on the televised specials] and Bill Littlejohn [the lead animator with Melendez].”

Using intellectual property system to harness African creativity — “Also included are the copyright systems that reward writers, artists, musicians and other creators and allow them to market their work around the world. IP helps ensure that the product of your mind belongs to you, so that you and your family will benefit. But governments need to put in place legal, regulatory and other frameworks to maximise human creativity and assure it can be shared across boundaries.”

Will Buckley works to unite artists and fix a broken DMCA — Ellen Seidler sits down with Fareplay founder Will Buckley about his efforts advocating on behalf of artists and creators. “Artists groups: authors, filmmakers, musicians, photographers and other creators will really need to step up their game in terms of individual participation to prevail. And while there are far more creators speaking out than ever before, in the scheme of things, it is far fewer than one percent. If that doesn’t change the creative community may come away empty handed from the proceedings.”

Previously on Copyhype —This week, the final text of the Trans-Pacific Partnership, which includes a chapter on intellectual property, was publicly released. For background on how copyright came to be included in trade agreements, see Copyright and Trade.

Copyright for Blockheads: An Empirical Study of Market Incentive and Intrinsic Motivation — Jiarui Liu:

Even though musicians seem to primarily create music for music’s sake, copyright law could still supply powerful incentives for music production in a way that not only caters to market demand, but also allows for broader artistic freedom. Copyright piracy that does not necessarily affect musicians’ intrinsic motivations could nevertheless affect music creation in terms of the time spent on music creation, the volume of investment in music creation and, ultimately, the quality of music creation. Most importantly, copyright incentives do not function as a reward that musicians consciously bargain for and chase after, but as a mechanism that preserves market conditions for gifted musicians to prosper, including a decent standard of living, sufficient income to cover production costs and maximum artistic autonomy during the creative process.

Wil Wheaton is right: Stop expecting artists to work for free — or worse, for “exposure” — After Huffington Post asked actor Wil Wheaton to republish an article he had written for free, Wheaton went public with the story and an exhortation to fellow writers, artists, and creators to value their work and think twice about offers to work for free, even when “free exposure” is promised. As Scott Timberg observes here, “when ‘free’ becomes the way creative work gets assessed, it undercuts the market for everyone, famous and obscure alike. We end up with a race to the bottom.”

Google Books and Fair Use: From Implausible to Inevitable? — Eminent copyright scholar Jane Ginsburg on the Second Circuit’s recent decision in Authors Guild v. Google. She asks, “How did the fair use doctrine go from a safety valve to enable second authors to create new works that productively incorporate reasonable portions of prior works, to a free (in both senses of the word) pass for mass commercial digitization – at least so long as the outputs from the commercial database communicate no expression or insufficient expression to infringe?”

New Tech Plans Aim to Take Copyright Office out of the 1970s — “According to the document, the office plans to revamp its website,, by improving the site’s organization and boosting its interface to make it easier to use. This overhaul would also include enhancing the public records search engine to allow users to save their queries and receive unlimited results. The office is also looking to finish digitizing its pre-1978 copyright records, according to the document.”

Protecting Authors and Artists by Closing the Streaming Loophole — “Congress has a long history of modernizing copyright law to account for ever-changing technologies. Now that the internet has advanced to where streaming is a dominant method of illicitly disseminating copyrighted works, the time has come to close the streaming loophole and to harmonize the remedies for criminal copyright infringement.”

Can economic and historical analyses end copyright law’s property/monopoly disputes? — Tom Sydnor: “We can now resolve 300-year-old debates about whether copyrights are monopoly rights or property rights. Modern law and economics provide no basis for distinguishing copyrights from other private property rights that also tend to promote imperfect competition by innovation among producers of differentiated goods, services, and works.”

95% of YouTube Views Come from Just 5% of Videos — “Of [YouTube’s] 1.1 billion videos, just 5.3 percent (roughly 58.6 million) of videos on YouTube have 10,000 views or more. These videos have generated a cumulative 7.4 trillion views, or about 95% of all views.”

Three More Reasons Why the Supreme Court Needs to Clean up the Mess of Transformative Use — Those three reasons, according to Stephen Carlisle, are the recent decisions in Author’s Guild v. Google, Inc., Katz v. Google, and Galvin v. Illinois Republican Party.

Is Google Books leading researchers astray? — “By not taking into account the relative popularity of texts, Google Books leaves itself open to disproportionate influence from less widely recognized sources. ‘It’s as if you’re giving every work in a library the same weight,’ Dodds said. When an author publishes numerous books about a single character, for example, that character’s name may appear to be far more central to an era’s discourse than it actually was. Dodds pointed me to the example of Star Trek novelizations, which made names like Spock appear with improbable frequency. By contrast, Dodds noted, a long-standing best-seller like A Tale of Two Cities has trouble making a dent at all, even in eras when everyone was reading it.”

CPIP 2015 Fall Conference — The Center for Protection of Intellectual Property has now posted videos of all the panels from its recent fall conference, The IP Platform: Supporting Invention and Inspiration. A must watch!

Oops, DNS blocking did not break the Internet — “[O]pponents of stronger digital copyright enforcement have staked their reputations on predictions that have clearly not come true. Policymakers, therefore, should not accept the falsehood that blocking a website or taking other actions to shut down infringing sites equates to an assault on the security and reliability of the Internet as a whole. Instead, they should recognize that selective targeting of websites dedicated to infringement is an effective strategy to combat piracy.”

Think tank: Take Copyright Office out of Library of Congress — “In a report, the think tank called for lawmakers to remove the Copyright Office from the Library of Congress — where it is one of a mere handful of agencies in the legislative branch. The report outlines constitutional arguments for a restructuring while underscoring ongoing problems with the office’s dated information technology systems as another driver. The Copyright Office currently falls under the umbrella of the Library of Congress, upon which it must depend for its IT — as well as for human resources, budget requests and other functions.”

Bear McCreary on The Walking Dead Season 6 — The composer of the AMC series discusses scoring the latest season, which premiered this past Sunday. “The creative model for this series has been to reinvent itself every eight episodes, with each run taking on a unique tone, and following our characters on a specific arc. Of course there are larger macro narrative arcs that span the entire series as well. This richly layered drama creates a unique challenge for me as a composer. With each season I strive to integrate elements from my previous seasons’ work into new themes, sounds and styles. My task is always to tell the immediate story at hand, but to also help thread the entire series together, to remind viewers they are taking part in a story that goes all the way back to the first episode.”

RIAA Obtains Restraining Order Against Aurous — On Saturday, the developer of Aurous publicly launched the unlicensed music service. On Tuesday, the major labels sued the developers. And yesterday, the Florida court granted a temporary restraining order against operation of the site, with a hearing on a motion for preliminary injunction scheduled for October 28.

The magic depends on us all, creators and audiences alike — “Art cannot be created on an automated assembly line. It is not a matter of plugging some numbers into a spreadsheet. The people in front of the camera and behind it – who write, light, film, act, cater, edit, costume, and create scenery – are the lifeblood of the business. We are the workers who craft these productions… And we, the behind-the-scenes magicians, are dependent on so many others to keep those opportunities flowing. We are dependent not only on the studios and networks but also on the audience who come to our movies or watch our TV shows on any number of screens and platforms. And we too are affected by the rampant theft of our work. When someone accesses our movies or shows on a pirate site, they steal our ability to make a living.”

Court’s docket shuns bankruptcy and IP cases — The US Supreme Court has started its new Term, but, as SCOTUSBlog reports, with 65% of its docket already filled, there is not a single IP case to look forward to.

Copyright Doesn’t Restrain Culture – Part II — Newhoff: “…because building upon what has come before is a well-established part of the creative process—because artists themselves throughout history admit to knowing how to steal—the argument is often made that modern copyright tips the scale too far toward a presumption of ‘originality,’ supposedly resulting in a kind of intellectual land grab whereby a minority of creators and corporations now own and charge rents for too much of the fertile ground necessary for creative endeavor. Nevertheless, by some miracle, literally millions of creators can simultaneously and independently produce new works while only very occasionally create conflicts of copyright.”

Rothman’s Roadmap to the Right of Publicity (via Rebecca Tushnet’s 43(B)log) — An incredibly useful guide to laws protecting the right of publicity in each of the fifty states.

Does Piracy Cost Content Creators a Fistful of Dollars? — “Copious research has countered claims that piracy is de facto publicity that spurs sales for individual recording artists or that increases in merchandising opportunities offsets the lost revenue from pirated films. While the literature is still open to new contributions, current research and analysis is demonstrating more and more that piracy has a measurable, negative impact on content creation and profits, which shouldn’t be a surprise to anyone.”

The problem is the music-streaming companies — Paul Williams: “Bottom line: the problem is neither transparency nor what is being paid out to songwriters and other copyright holders by PROs… the real problem is how little is being paid into the system by streaming companies”

As Batman so sagely told Robin, “In our well-ordered society, protection of private property is essential.”

Ninth Circuit, holding that Batmobile is protected as a copyrighted character. 1DC Comics v. Towle, No. 13-55484 (9th Cir. 2015).

Kim Dotcom case is ’simple fraud’, court told — “Gordon said Megaupload, the now-defunct site at the heart of Dotcom’s online empire, was part of a scheme to steal copyright-protected material. ‘The respondents took part in a conspiracy,’ she said. ‘They deliberately introduced copyright-infringing material to their website, they deliberately preserved that material, they deliberately took steps to profit from that material and made vast sums of money.'” See also Let’s Get Real about Kim Dotcom: The Indictment Clearly Alleges Felony Copyright Infringement.

Behind the Authors Guild’s New Proactive Approach — “Since Mary Rasenberger took over as executive director of the Authors Guild last November, the writers’ group has undertaken two significant projects: its Fair Contract Initiative and the first survey of guild membership in six years. Both efforts, Rasenberger said, are designed to help the organization better represent the interests of its 9,000 members, not just with publishers, but with government officials and other groups that can affect the livelihood of all authors.”

Valuing Music in a Digital World — Cary Sherman: “Compounding the harm is that some major online music distributors are taking advantage of this flawed system. Record companies are presented with a Hobson’s choice: Accept below-market deals or play that game of whack-a-mole. The notice and takedown system—intended as a reasonable enforcement mechanism—has instead been subverted into a discount licensing system where copyright owners and artists are paid far less than their creativity is worth.”

This free online encyclopedia has achieved what Wikipedia can only dream of — Spoiler: It’s the Stanford Encyclopedia of Philosophy, which predates Wikipedia by six years. Unlike Wikipedia, the Stanford Encyclopedia manages to be authoritative, comprehensive, and up-to-date, and does so by relying on a hierarchy of editors and expert authors rather than “the wisdom of the crowd.”

USTR Releases Detailed Summary of TPP Objectives — Included are the objectives of the free trade agreement’s copyright chapter.

GroupM And TAG Partner To Fight Piracy, The “Seed That Grows Into Ad Fraud” — “’The people who create pirate sites are the same ones who perpetrate clickbot fraud – they’re the ones who spread malware and create the armies of bots that generate most of the automated clicks in the business,’ said John Montgomery, chairman of GroupM Connect, North America , and co-chair of the Trustworthy Accountability Group’s (TAG) antipiracy working group.”

The Fake Traffic Schemes that are Rotting the Internet — “’I can think of nothing that has done more harm to the Internet than ad tech,’” says Bob Hoffman, a veteran ad executive, industry critic, and author of the blog the Ad Contrarian. ‘It interferes with everything we try to do on the Web. It has cheapened and debased advertising and spawned criminal empires.’ Most ridiculous of all, he adds, is that advertisers are further away than ever from solving the old which-part-of-my-budget-is-working problem. ‘Nobody knows the exact number,’ Hoffman says, ‘but probably about 50 percent of what you’re spending online is being stolen from you.'”

References   [ + ]

1. DC Comics v. Towle, No. 13-55484 (9th Cir. 2015).

The Flux Capacitor and the Copyright Office — “American businesses and consumers deserve a Copyright Office that is suited to the modern era and the future.  Last weeks’ outage is yet more evidence that the Copyright Office needs authority over its own systems to make that happen.  And we hope Congress gives this the attention it deserves.”

Ninth Circuit Gets Fair Use Wrong to the Detriment of Creators — To reach its conclusion that fair use is a right, the Ninth Circuit selectively quotes an Eleventh Circuit decision to make it sound like there is support for that position, when in fact, the Eleventh Circuit is saying the opposite. Stunning.

Priest on Market-Pressure Based Enforcement of Global Copyright — A new article from Univ. of Oregon Law School professor Eric Priest “proposes a framework for evaluating and improving market-pressure strategies aimed at redressing copyright infringement in markets where enforcement is lacking.”

Full of Schmidt — “…it turns out the demagogues of Silicon Valley are themselves inveterate elitists who slyly and consistently employ populist rhetoric for their own profit-hungry purposes. They elevate the quantitative formulations of Big Data into unalloyed truth, conveniently overlooking the helplessness of quantity alone to identify quality (nowhere in the history of humanity have we ever seen sheer numbers equate with human value), and also conveniently overlooking the subjectivity that will always embed itself into algorithmic selection, because (hey, how about that!) algorithms are at some point in the process created and overseen by human beings and will ever more reflect subjectivity even when posing as immutably objective.”

MPA Reveals 500+ Instances of Pirate Site Blocking in Europe — That’s a lot of broken internets.

“We Own You” – Confessions of an Anonymous Free to Play Producer — “Every time you play a free to play game, you just build this giant online database of who you are, who your friends are and what you like and don’t like. This data is sold, bought and traded between large companies I have worked for. You want to put a stop to this? Stop playing free games. Buy a game for 4.99 or 9.99. We don’t want to be making games like this, and we don’t want another meeting about retention, cohorts or churn.”

Three Quasi-Fallacies in the Conventional Understanding of Intellectual Property — In this forthcoming article, Jonathan Barnett argues that, contrary to the prevailing IP skepticism in academia, “reducing IP rights can increase costs for users while raising entry barriers for firms that adopt weakly integrated and other unbundled business models for implementing the innovation and commercialization process. The result is perverse: weaker IP rights raise entry costs, increase concentration and ultimately raise prices, limit output or otherwise distort innovation investments.”

If You Don’t Click on This Story, I Don’t Get Paid — A thought-provoking look at freelance writing in 2015. “’The people who make money off the internet are Facebook, Google, and Twitter and their billionaire executives,’ David Samuels, a contributing editor at Harper’s and frequent contributor to the New Yorker, said. ‘They are fantastically rich because they ate this whole world. Everybody in this world of internet publications is essentially providing content for them one way or another for free. If that’s your job, you’re very very nervous every day about the one little misstep that’s completely meaningless to Facebook, Google, or Twitter but might be the difference between life and death for you and for your publication.'”

How Unethical Hosts Fake DMCA Compliance — Jonathan Bailey has a practical guide for dealing with sites using tactics to make it seem like they are complying with DMCA notices without actually removing infringing material.

Recorded Music is the MOST Valuable — David Newhoff has a fascinating piece on the importance of recorded music and how the public loses out if artists are told to stick to live performances because the market for recorded music has eroded. “When recorded works themselves cease to be a commodity (i.e. they’re made for the purpose of selling something else), they cease to be the basis for investment, and this can limit the range of creators’ options to collaborate and produce a richer universe of sounds.”