Friday’s Endnotes – 05/08/20

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 Court — Bloomberg 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?

Friday’s Endnotes – 05/01/20

By , May 01, 2020.

Opinion analysis: Sharply divided bench rejects Georgia’s copyright in annotations of Georgia statutes — Writing for SCOTUSBlog, Ronald Mann looks at Monday’s Supreme Court decision in Georgia v. Public.Resource.org, which considered when works by government officials are precluded from copyright protection. Read the full opinion here.

Appeals Court Reviews ‘Star Trek’/Dr. Seuss Mashup — Later that same day, the Ninth Circuit heard oral arguments in Dr. Seuss Enterprises v. ComicMix. Eriq Gardner takes a look at what went down. View a recording of the arguments yourself here.

Preparing for 2021 — January 1, 2021, is the date the new blanket license created by the Music Modernization Act becomes available. The Mechanical Licensing Collective, which was designated to administer the unprecedented license, has been hard at work gearing up for the launch. Here, they provide some essential steps songwriters and publishers can start taking now to ensure they are getting the royalties they are entitled to when the license becomes available. Be sure to also check out the Copyright Office’s own update on developments regarding the MMA, including a set of notices soliciting public comment that were recently published and an entire page of printed and video materials to explain the MMA and what it means for musicians.

Infogroup $21.2 mln judgment against DatabaseUSA and ousted founder is upheld — Reuters reports on a recent decision from the Eighth Circuit regarding the copyrightability of databases. Read the full decision in Infogroup v. DatabaseLLC here.

Friday’s Endnotes – 04/17/20

By , April 17, 2020.

Court Rules Photographer Gave Up Exclusive Licensing Rights by Posting on Instagram — This week, the Southern District Court of New York dismissed a copyright infringement claim brought by a professional photographer against Mashable. The Hollywood Reporter writes that Judge “Wood comes to this conclusion by discussing how Sinclair agreed to Instagram’s Terms of Use when creating her account. Those terms granted to Instagram ‘a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content.’ Wood writes that because Sinclair ‘uploaded the Photograph to Instagram and designated it as ‘public,’ she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website.'” [Note that Instagram’s terms of service are not unique—most sites that allow users to upload content have similar terms.]

The Breakdown: What Songwriters Need to Know about the Music Modernization Act and Royalty Payments — The U.S. Copyright Office introduces the landmark legislation to songwriters and composers, and points to its more comprehensive page of educational resources on the MMA, including print and video materials.

COVID-19 Relief for Music Industry Workers — MSK attorneys Eleanor Lackman and Craig Bradley provide helpful information regarding unemployment compensation and PPP loans under the CARES Act for bands and musicians.

DSM Directive: French Competition Authority orders Google to negotiate Remuneration with Press Publishers — IPKat reviews the decision from the French antitrust agency regarding Google’s actions following France’s implementation of Article 15 of the Digital Single Market Directive, recently adopted by the EU, which provided a press publishers right. Among other conclusions, “The FCA held that Google’s likely dominant position in the market was the reason why Google was able to impose such conditions on the press publishers. As the traffic generated by Google is crucial and non-replaceable for press publishers and news agencies, they have no choice but to comply with the policy and to accept conditions that are even more unfavourable them than the ones that existed before the transposition of the DSM Directive.”

Supreme Court to hear cases on Trump’s financial docs, religious freedom and Electoral College via telephone — Finally, after postponing all oral arguments in light of COVID-19, this week the Supreme Court announced it will resume hearing arguments in a number of cases by telephone. Unfortunately for copyright fans, arguments in Google v. Oracle, which had originally been scheduled for March 26, will not be heard this term; instead, they will be rescheduled for some time after the Court reconvenes for its new term starting in October.

Friday’s Endnotes – 04/10/20

By , April 10, 2020.

Artist Relief — “To support artists during the COVID-19 crisis, a coalition of national arts grantmakers have come together to create an emergency initiative to offer financial and informational resources to artists across the United States. Artist Relief will distribute $5,000 grants to artists facing dire financial emergencies due to COVID-19; serve as an ongoing informational resource; and co-launch the COVID-19 Impact Survey for Artists and Creative Workers, designed by Americans for the Arts, to better identify and address the needs of artists.”

Google’s AI can replicate your photos in the style of iconic paintings — When we talk about the intersection of artificial intelligence and copyright, we discuss applications like this. “Art Transfer is a new feature in the Google Arts & Culture app that lets you apply the characteristics of well-known paintings to your photos, from the bold swirls of Vincent van Gogh to the surreal brushstrokes of Frida Kahlo. It’s powered by an algorithmic model that doesn’t just blend images or overlay your photo, but instead produces a unique recreation of the image inspired by the specific art style chosen. And it all happens right on your device—no cloud involved.”

Coronavirus turned these costumers into Hollywood’s ‘mask crusaders’ — “The motion picture industry has been decimated by the coronavirus crisis, which has halted film and television productions worldwide. More than 100,000 cast and crew have lost work and are turning to relief packages set up by unions, independent Go Fund Me efforts and various Hollywood foundations. With no end in sight to the crisis, costumers — whose job is to create and fit costumes for actors on sets — are plying their sewing and design skills to help address the very real shortages of face masks and other protective clothing among medical workers.”

Movie & TV Giants Sue ‘Pirate’ Nitro IPTV For ‘Massive’ Copyright Infringement — TorrentFreak reports, “Late Friday a coalition of entertainment industry companies filed a lawsuit against Alejandro Galindo, the supposed operator of Nitro TV, plus an additional 20 ‘Doe’ defendants. Filed in a California district court by companies owned by Columbia, Amazon, Disney, Paramount, Warner, and Universal, the lawsuit alleges that Nitro TV offers subscription packages consisting of thousands of ‘live and title-curated television channels’ available twenty-four hours a day, seven days a week, throughout the United States and abroad.”

Friday’s Endnotes – 04/03/20

By , April 03, 2020.

U.S. Copyright Office Operations Updates During the COVID-19 Pandemic — The Copyright Office has created a dedicated page that continually updates with COVID-19 related Office news, such as temporary changes to timing provisions for certain copyright registrations and notices of termination.

An Exhaustive Guide to Coronavirus-Relief Resources for the Music Community — Variety has compiled a set of resources for musicians and songwriters to help them through the pandemic. One of the biggest is Music Covid Relief, a resource supported by over 50 U.S. music organizations.

Hollywood’s Army of Craftspeople Take on COVID-19: ‘We’re the MacGyvers of This Industry’ — “Like virtually everyone in the motion picture industry, costumers and set designers cannot work due to social distancing. As infection counts climbed and news of shortages of personal protective equipment (PPE) began to surface, people wanted to help. ‘Members started reaching out to me about these desperate pleas for PPE for medical professionals,’ recalls Brown. Though it surely feels longer, that started in the middle of last week. ‘I put a post on Facebook, a call to arms.’ Following an email solicitation to the #705 membership, about 130 people had enlisted.”

‘Emergency’ Online Library Draws Ire of Some Authors — The New York Times reports, “Some early positive coverage of the project noted that it was filling a void, making books accessible at a time when many libraries and bookstores across the country have closed. But authors quickly began criticizing the effort, calling it piracy masquerading as public service. Some argued that the free online library would deprive authors and publishers of royalty payments — at a moment when sales are declining and many writers are struggling.”

Friday’s Endnotes – 03/27/20

By , March 27, 2020.

Opinion analysis: Congress cannot subject states to suit for pirating and plundering copyrighted material — Writing at SCOTUSBlog, Howard Wasserman breaks down Monday’s decision in Allen v. Cooper, which considered whether states (and state entities) could be sued for copyright infringement. In a unanimous decision (though only a majority opinion), the Court held they could not. Opinion here.

Real-life ‘Glee’ choir wins song-stealing lawsuit — The Ninth Circuit published a decision in Tresona Multimedia, LLC, v. Burbank High School Vocal Music Association holding that, contrary to decades of industry expectations, there is no market for licensing music to be used as part of medleys.

National Recording Registry Class Produces Ultimate ‘Stay at Home’ Playlist — “Librarian of Congress Carla Hayden today named these and 20 other recordings as aural treasures worthy of preservation because of their cultural, historical and aesthetic importance to the nation’s recorded sound heritage. ‘The National Recording Registry is the evolving playlist of the American soundscape. It reflects moments in history captured through the voices and sounds of the time,’ said Hayden.”

Copyright Office Updated Fee Schedule Takes Effect Today — On March 20, new fees for Copyright Office services, including registration, went into effect. Check out the link for the new fee schedule to make sure you’re submitting the proper fee and avoid delays in processing.

Update on Friday’s Campaign to Support Artists During the Covid-19 Pandemic — Last week, I noted that indie music platform Bandcamp was waiving its cut of artist sales for 24 hours as a way to provide aid during this pandemic. Here, Bandcamp reports on the results of that waiver: over fifteen times in daily sales, for a total of $4.3 million in music and merch sold.

Friday’s Endnotes – 03/20/20

By , March 20, 2020.

The world is a lot different than it was a week ago, and that won’t change anytime soon. I hope everyone stays healthy, safe, and secure.

Resources for artists and creators — Media, organizations, and individuals have been compiling lists of resources for the creative community, who along with the general challenges a pandemic brings, face their own set of specific challenges. Just a few: COVID-19 & Freelance Artists is a comprehensive collection that started as a crowd-sourced Google Doc. Billboard compiled a State-by-state Resource Guide for Music Professionals Who Need Help During Coronavirus Crisis. Recording Academy regional chapters have compiled lists of resources for musicians by region: East (Chicago, NY, Philly, DC), South (Memphis, Nashville, Florida, Atlanta), and West (LA, San Francisco, Pacific Northwest, and Texas). The British Journal of Photography has a similar list for photographers. The National Endowment of the Arts has a compilation of compilations of Resources for Artists and Artist Organizations.

The mail must go through — Government can’t stop during a pandemic, though it must adapt to the challenges social distancing brings just as any other organization must. The Copyright Office has a dedicated page for Operations Updates During the COVID-19 Pandemic. The US Patent and Trademark Office also set up a page collecting USPTO Notices Regarding COVID-19. Federal Courts make individual decisions regarding modification of their operations, the Administrative Office of the U.S. Courts has a page dedicated to collecting links to all Court Orders and Updates During COVID-19 Pandemic. For general information, visit the Center for Disease Control’s dedicated page at Coronavirus.gov. For other federal government initiatives, see USA.gov/coronavirus (and Spanish language version). For general state and local government updates, your best bet is to start with your local Congressional representative website, many of which have compiled lists of updates and links as a constituent service.

Friday’s Endnotes – 03/13/20

By , March 13, 2020.

Led Zeppelin Wins “Stairway to Heaven” Copyright Fight Upon Appellate Replay — On Monday, an en banc Ninth Circuit panel excised the “inverse ratio” rule from copyright analysis, affirmed that the scope of copyright claims for works registered under the 1909 Copyright Act is limited to what is in the deposit copy, and provided plenty else to chew on for the copyright world.

Senate IP Subcommittee Examines Foreign Approaches to Digital Piracy in Second Hearing on U.S. Copyright Reform — On Tuesday, the Subcommittee continued its work looking at the Digital Millennium Copyright Act and how it is working after two years in place. This hearing examined approaches to online piracy outside the U.S., with particular emphasis on the recent EU copyright directive.

SCOTUS rejects pair of copyright and design patent suits — The Supreme Court will not be reviewing Gold Value v. Sanctuary Clothing, a Ninth Circuit decision that invalidated a copyright registration due to inaccurate information on the application.

Inside the Strange, Insular World of Cheerleading Music — Vice profiles the thriving but niche industry providing the soundtrack to cheerleading competitions, along with the copyright and licensing issues that arise.

Library of Congress Announces Limited Access to Facilities until April 1 — The Library of Congress buildings and facilities will be closed to the public for the rest of the month of March due to the coronavirus pandemic. That includes the U.S. Copyright Office. “If you are a user of the U.S. Copyright Office’s services, submit your applications online, browse FAQs, and submit emails with questions through copyright.gov. You may also reach the Copyright Office by phone at (202) 707-3000.”

Friday’s Endnotes – 03/06/20

By , March 06, 2020.

Welcome to the Era of Fake Products — “The rise of counterfeit goods and other phony products sold on the Internet has been swift—and it has largely gone unnoticed by many shoppers. But make no mistake: The problem is extensive. Most people don’t realize this, but the majority of listings on Amazon aren’t actually for items sold by Amazon—they’re run by third-party sellers. And even though many, many third-party sellers are upstanding merchants, an awful lot of them are peddling fakes.”

Plugging Another Analog Hole in Music Royalties — Bill Rosenblatt takes a look at one company’s efforts to automate setlist reporting for musicians to provide more accurate data to performing rights organizations like ASCAP and BMI.

Citation Data Gets Richer — The free, open source legal research platform CourtListener announced this week that it has introduced citation depth analysis to indicate how many times every opinion cites another. Pretty cool.

Singapore’s Daren Tang to Succeed Gurry as Next WIPO Director General — Tang prevailed over a number of other candidates, including one from China, to take the helm at the World Intellectual Property Organization. IPWatchdog has more.

Gold Value International Textile v. Sanctuary Clothing — The Supreme Court currently has three copyright cases on its docket this term. Will it add a fourth? The Court will consider the cert petition in Gold Value today, with orders from its conference published early next week. The case involves when a court can invalidate a copyright registration for containing inaccurate information. Cert petition available here, and analysis of the Ninth Circuit decision being appealed here.

Friday’s Endnotes – 02/28/20

By , February 28, 2020.

Supreme Court’s case Oracle v. Google shows polarised views on copyright and fair use — Emmanuel Legrand surveys the over thirty amicus briefs filed in support of Oracle on the 19th. The Supreme Court will hear oral arguments in the case on March 24th to aid them in determining whether what Google copied was copyrightable, and if so, whether that copying is excused by fair use.

Peloton and NMPA Agree to Settle Copyright Infringement Lawsuit — This week, music publishers and the computer bike company announced they had reached an agreement in the lawsuit filed by music publishers alleging copyright infringement. In its statement, Peloton’s Head of Music said, “Music is an important part of the Peloton experience, and we are very proud to have pioneered a new revenue stream for recording artists and songwriters. We’re equally proud to partner with David and the NMPA to ensure that songwriters are, and continue to be, fairly compensated.”

Smithsonian Releases 2.8 Million Images Into Public Domain — The Institution this week announced the launch of a new open access platform that brings part of its vast collection—”data and material from all 19 Smithsonian museums, nine research centers, libraries, archives and the National Zoo”—online, and in high-resolution. In case you’re wondering, the FAQ states that the collection does not include works still protected by copyright.

DMCA Notices Took Down 14,320 Github Projects in 2019 — Torrentfreak reports that Github, an online repository for collaborative software development projects, released its annual transparency report, which revealed statistics on takedown requests for 2019. “The reasons for these claims are varied but most commonly on TF we cover copyright infringement issues. Recent examples can be found in a notice filed by the MPA which targeted the repository of ‘pirate’ app TeaTV or when Instagram requested code to be removed, ostensibly to protect its users’ copyrights.”

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