1709 Blog: for all the copyright community

Tuesday, 12 July 2016

The abyss that stared back: Vantablack’s copyright conundrum

A few months ago our friend Alberto Bellan at the IPKat discussed the very question whether it is possible to own a colour, especially when this is Vantablack, ie the "blackest black ever existed".

Today The 1709 Blog is delighted to host a guest contribution by Divya Mirlay (Christ College, Bangalore) on the specific copyright implications surrounding Vantablack.

Here's what Divya writes:

"Oscar Wilde in his inimitable fashion once said, “mere color, unspoiled by meaning, and unallied with definite form, can speak to the soul in a thousand different ways.” Ironically, Wilde’s eloquent description of color resonates with the British art maestro Anish Kapoor’s description of the complete absence of color, which goes by the name Vantablack. 

A unique material composed of millions of incredibly small nanotubes grown on a metal surface, Vantablack is recognized by the Guiness World Records as the World’s Darkest man-made substance. In an interview, Mr Kapoor describes the unique qualities of Vantablack’s use in art and the powerful responses it evokes. 

This unique material has recently surfaced in the context of a potential copyright row. According to Surrey NanoSystems, a British company that developed the material, Mr. Kapoor alone possesses the exclusive license to use Vantanblack in artistic creations. 

Appalled by the apparent monopolization of a colour, several in the creative world have vehemently opposed it. The protection afforded to colours under the intellectual property regime has been hoarsely advocated by several MNCs in the past- be it Cadburys purple or T-Mobiles magenta. 

The exclusive ownership of colours by individuals, particularly in the context of artistic works, though rare, is not unheard of. What is still in a state of flux however, is the copyright protection of colour.

The man that ‘bought’ blue

The oft-touted precedent for the ownership of color is that of International Klein Blue (IKB), a hue mixed by the French artist Yves Klein in 1960. IKB was developed by suspending dry pigments in synthetic resins, resulting in the individual particles of the pigment retaining their brightness and intensity over time. 

In this regard, Klein received the Soleanu envelope from the French Patent office, ie a system peculiar to the French patent system. Whats interesting is that Klein’s patent did not extend to the colour or the binding medium, but was limited to its chemical concoction. Vantablack, on the other hand, is licensed exclusively to Kapoor Studios UK for its use in the field of art.

Gold and Vantablack
The norms of owning colour

Some sources claim that Mr Kapoor now owns a copyright in respect of Vantablack.  The copyright protection of a colour has not surfaced yet. As stated above, Klein’s rights over IKB pertained to a patent, not copyright. 

Other instances of ownership of colors are largely in the domain of trade marks. US courts have seen a plethora such cases-the first being In Re Owens-corning FiberglassCorporation, where the Court of Appeals for the Federal Circuit ruled that in limited circumstances, a color that has become associated with a specific manufacturer can qualify as a registrable mark. The appellants in this case were given the right to prevent competitors from using the color pink in their insulation products. This marked the first time a company in the US was granted a trade mark for a particular colour. 

Nearly a decade later, the US Supreme Court in Qualitex Co v Jacobson Products Co, Inc, held that there existed no objection to the use of color alone as a trade mark, when the colour has attained a secondary meaning and therefore identifies and distinguishes a particular brand.  

Ever since, the courts have dealt with several cases pertaining to the protection of colours as trade marks, especially in the context of pharmaceutical trade dress. Vantablack, however, cannott be protected by trade mark as the question of any secondary meaning identifying it with any particular brand does not arise.

Just black and white
A colourful dichotomy?

The idea-expression dichotomy forms the foremost axiom of copyright law. In this regard, “ideas, sentiments or creations of the imagination” are often contrasted with "the language, idiom, style, or the outward semblance and exhibition" of such creation.  However, the boundary between an idea and an expression is at times unclear, and as posited by Judge Learned Hand, “nobody has been able to fix the boundary, and nobody ever can.” 

The question in this case is whether a colour forms an idea or an expression. What is to happen if colours are considered as expressions of ideas? Say, red for danger, white for peace, white and gold/blue and black for consternation, etc. These colours, much like words, form common property to the human race, and are therefore as susceptible to private appropriation as air or sunlight. [(Holmes v. Hurst, 174 U.S. 86 (1899)] The purpose of limiting copyrights to expressions, and not ideas is to prevent the monopolization of the latter. Only when arranged in an original form, can they merit copyright protection. As held in an Indian landmark ruling, every expression does not ipso facto become protectable, and must pass the test of originality, which requires the exercise of skill, labour and judgment in creating the work.  A colour alone is lacking in originality, and its protection would arguably result in monopolization of an idea which would strike at the foundations of copyright law.

Additionally, certain countries (US for instance) require fixation of the work in a tangible medium as a prerequisite for copyright protection. Therefore, ideas, plots, themes, and, arguably in the same vein, color cannot be copyrighted on this ground alone. 

As the requirement of tangible fixation is optional under the Berne Convention, certain countries have opted not to include this requirement in their domestic laws. The Indian Copyright Act, 1957 (Act) for instance, makes no such mention. Section 13 of the Act lists the classes of original work over which a copyright subsists, which includes artistic works, defined under section 2( c ) as: (i) a painting, sculpture, drawing (including a diagram, map, chart or plan), engraving or photograph; (ii) work of architecture; (iii) any other work of artistic craftsmanship.

A colour by itself would not form an artistic work under the aforementioned section. Only when used in a painting, sculpture, drawing, etc, can a copyright be claimed. Section 16 of the Act further prevents the entitlement of copyrights or any similar rights except in accordance with the provisions of the Act. It therefore would not be plausible to categorize Vantablack as an ‘artistic work', thereby making it unfit for copyright protection.

Like Klein, SurreyNanoSystems could patent the material. The company’s FAQ portal states that Vantablack is not a paint or pigment, but comprises of a functionalized forest of millions upon millions of nanotubules, grown at 750 degrees centigrade. 

Vantablack has diverse industrial applications in aerospace technology, touch screens, ultra light wiring, etc. The material appears to check the boxes of novelty, non-obviousness and utility, thereby making it patentable. Thus, if Vantablack was to be monopolized in any manner, it would be more palatable as a patent, rather than copyright."

Tuesday, 5 July 2016

The CopyKat

U.S. Internet provider Windstream is asking a New York federal court to shield the company from broad piracy accusations. The ISP filed a complaint against BMG and Rightscorp after it was accused of direct and contributory copyright infringement. The lawsuit follows on the heels of a similar complaint by fellow Internet provider RCN, which also seeks legal clarity in the wake of several conflicting decisions on whether or not Internet provider can be held liable for subscribers who share pirated file - but clearly prompted by the decision of a Virginia federal jury - in a case brought by BMG Rights Management against Cox Communications - who answered in the affirmative. 

PRS for Music has won the Copyright Tribunal reference brought against it by ‎ITV in July 2014 - a final hearing took place for two weeks in November 2015. The decision concerns, amongst other things, the annual sum ITV must pay to PRS for Music to use musical works in its programmes and broadcasts. In August 2015, PRS wrote to its members to announce it would be temporarily increasing the admin fees it charges on royalties collected from TV companies in order to fund the legal costs of the Copyright Tribunal hearing. The Tribunal decided that the base royalty (beginning in 2010) would be some £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). Michael Simkins LLP (now Simkins), who acted for the PRS, said the Tribunal's decision "is the most significant decision relating to such rights for almost 20 years, since the 1997 BSkyB case."

PRS for Music has also written to its members saying that from the end of June the BBC will need to seek prior approval from publishers for use of North American repertoire. Why? well it seems the BBC’s blanket licence with PRS for Music and a number of BBC Worldwide’s MCPS licences are due to expire on 30 June 2016 and whilst negotiations with the BBC to agree new licences continues, and the PRS have agreed that the existing licences will be extended for a 6 month period from 1 July 2016 to 31 December 2016, as a condition of extending BBC Worldwide’s TV Programme Sales licence, the MCPS Board has asked that the BBC seek prior approval from publishers for uses of North American repertoire in programmes which are sold into the US and Canada on a trial basis, although if approved any licence will be at MCPS rates. See more on use rates here and existing approvals here

New copyright legislation has come into effect in Cayman to provide greater legal protection for Cayman’s musicians, visual artists and others in the creative fields, and is the first step in modernising intellectual property legislation. Commerce Minister Wayne Panton said government had plans to present more bills in September to update existing trade mark legislation for local registration and design rights. 

Asparagus - yes - and copyright: A New Zealand company, Oraka Technologies has been awarded $4.1 million in damages in a copyright case involving an automatic asparagus grading machine. Tired of grading asparagus by hand, Oraka Technologies owner Michael Schwarz developed the first automatic asparagus sorter, known as the Oraka Grader, in the early 1980s and asked Napier Tool & Die to prepare drawings for a cup that transported the asparagus for the Oraka Grader, and Napier began manufacturing it for Oraka Technologies. But a rival company Geostel Vision used Napier to manufacture their own cup assembly that was alleged to be substantially copy of Oraka's design and in 2013 the Court of Appeal found that Geostel and Napier Tool & Die copied part of the machine. 

And staying "down under", Australia’s Full Federal Court has confirmed digital data streams are not protected by the Copyright Act. The court upheld Justice Annabelle Bennett’s December 2014 ruling that held that copyright did not subsist in digitally streamed broadcasts. The case is actually a taxation case (Commissioner of Taxation v Seven Network Limited), which revolved around whether payments made to the International Olympic Committee for broadcasting rights by Seven were royalties and therefore taxable. The court found that “a cinematograph film in which copyright subsisted under the Copyright Act is not made until the first copy is made” and that there was no way for the broadcast to be reproduced without an external receiving device. More on IPPro here and the judgment can be found hereSeven Network Limited v Commissioner of Taxation [2014] FCA 1411

Wednesday, 29 June 2016

The CopyKat

Video-sharing website Vimeo LLC cannot be held liable for copyright infringement for unknowingly hosting older music uploaded by its users, a U.S. appeals court ruled, dealing a blow to record labels seeking broader protections. In a victory for internet service providers, the 2nd U.S. Circuit Court of Appeals in New York also held that the mere fact that Vimeo employees had viewed videos with copyrighted sound recordings was not enough to prove the company ignored red flags of infringement. The case, pursued by Capitol Records and Sony Corp units, was closely watched in Silicon Valley, with Vimeo's appeal drawing support from Facebook Inc, Twitter Inc, Alphabet Inc's Google, and other companies.

A new letter, signed by a host of recording stars including Lady Gaga, Sir Paul McCartney, Ryan Adams, Cher, Sir Elton John, Fall Out Boy, Yoko Ono Lennon, Bette Midler, Queens Of the Stone Age, Pink, Maroon 5, Mark Ronson, Elton John, Bon Jovi, Rod Stewart, Lionel Richie, Aerosmith's Steve Tyler (pictured) Pusha-T, Sade, Gwen Stefani, Sting and Beck has been sent to Congress asking lawmakers to "please protect" future artists and songwriters by enacting "sensible reform" of DMCA - adding that the current version of the YouTube-shielding ' safe harbor' law "simply doesn't work" and has allowed tech companies to generate “huge profits” while the earnings of artists and songwriters “has plummeted”

Pirate Bay co-founder Peter Sunde has been ordered by the Helsinki District Court to pay E350,000 ($395,000) to record labels including Sony, Universal, Warner and EMI, after their content was shared illegally via the platform and costs of around $62,000 (55,000 euros) - the payment has to me mad to the local branch of IFPI. Sunde also faces a fine of one million euros if the content continues to be shared via The Pirate Bay but - as he says he is now unconnected to the site - how he is supposed to do anything about that isn’t clear.

A building design firm is suing Lion Enterprises, Inc., Bastian Homes Ltd. and Eugene J. Bastian, citing alleged copyright infringement. Design Basics LLC filed a complaint on in the U.S. District Court for the Middle District of Pennsylvania against the defendants, alleging that they violated Copyright Act and the Architectural Works Copyright Protection Act by publishing, distributing, marketing, and advertising certain architectural designs for residential homes similar to the plaintiff's Plan No. 2316 – Franklin – and Plan No. 6715 – Sycamore. The defendants allegedly violated and continue to violate the plaintiff's exclusive rights in each of the copyrighted works. Design Basics is asking for a jury trial and and injunction prohibiting the defendants from further infringing on its copyrighted works, an order directing the U.S. Marshals Service to impound all copies of the copyrighted works in possession of defendants, and an award for all damages, costs and reasonable attorney’s fees and for such other relief as it may show itself to be entitled.  U.S. District Court for the Middle District of Pennsylvania Case number 1:16-cv-00922]

TechDirt reports on two more decisions from the US Courts that confirm "legal threats against alleged infringers, based on nothing more than IP addresses" will not succeed in the courts.  In the first case, New Jersey Judge Kevin McNulty disagreed with Malibu Media's request for default judgment, pointing out that the limited info it was working with could not rule out a successful defense being raised by the accused infringer. In the second case brought against defendant Thomas Gonzales, Oregon Magistrate Judge Stacie Beckerman said The only facts Plaintiff pleads in support of its allegation that Gonzales is the infringer  is that he is the subscriber of the IP address used to download or distribute the movie, and that he was sent notices of infringing activity to which he did not respond. That is not enough. Plaintiff has not alleged any specific facts tying Gonzales to the infringing conduct. While it is possible that the subscriber is also the person who downloaded the movie, it is also possible that a family member, a resident of the household, or an unknown person engaged in the infringing conduct."

And finally, the Walt Disney Company is taken legal action against three Chinese companies over the animated film “The Autobots” which Disney claims infringes the Disney copyright in the hit animated movie “Cars”. According to Reuters, the three defendants are the production firm Blue MTV, media firm Beijing G-Point and online content platform PPLive Inc. A notice on the Shanghai Pudong New Area People’s Court website states that Disney are suing for copyright infringement and unfair competition.

Two 'Talking Copyright' sessions at Brtish Black Music Month

Talking Copyright Conference: From A Left & Global South Perspective July 13, 6-8pm @ Houses Of Parliamentwww.bit.ly/REIMILaunch

This conference aims to highlight perspectives that go beyond the concept of Copyright being a Eurocentric construct very much predicated on the creation by the romantic solitary author and providing a monopoly for his and his agents' financial recompense. A panel hosted by Anne McLaughlin MP at the Houses Of Parliament and chaired by Kwaku (convenor), consisting of Dr Enrico Bonadio (senior law lecturer and reggaephile), Awula Serwah (barrister and community activist) - more to be confirmedwill explore Copyright and related conventions and how it works in relation to African/black music, African culture and artefacts from a global South and left focus. Click here to book.

This extra Talking Copyright offer is part of the Vinyl Memories: Talking Classic BBM Albums programme, which ends with City University London Law School senior lecturer Dr Enrico Bonadio, a vinyl and reggaephile, providing a short presentation entitled 'The History of Phonograms and Its Impact on Copyright Law'. So if you're interested in Copyright/legal issues, you'll want to attend this presentation. And you are welcome to participate in the Vinyl Memories session. Oh, and you have a favourite British Black Music album cover or two, why not submit it in our Top 20 poll?

Wednesday, 22 June 2016

CREATe Festival in London this week

Our friends at CREATe, the UK Centre for Copyright and New Business Models in the Creative Economy, wish to let 1709 Blog readers know about the forthcoming CREATe Festival 2016, taking place on Friday in London.

More specifically:

"The Royal Society of Arts in London is showcasing on 24 June (this Friday) research findings by CREATe. There will be policy debates and expert panels that explore the future of the creative economy, the interface of digital innovation and legal regulation, and in particular the role of copyright law. You can take part in behavioural experiments, attend a workshop on fashion IP, learn more about art forgery, or interact with fellow online video creators in a meet-up. There will a hackathon video presentation as well as the launch of CREATe’s very own tartan!

The Festival has partnered with London Technology Week, a series of events taking place throughout London that celebrates and connects innovators from leading R&D centres, tech businesses, universities and specialist hubs.

Martin Kretschmer, Professor of IP Law at the University of Glasgow, and Director of CREATe, says: “The creative industries (which include very diverse sectors, such as music, publishing, news, games, film, TV and radio) face a radical challenge. All online behaviour is potentially observable, and whoever controls this data infrastructure will have a stake in the creative economy that is very different from the role of earlier cultural intermediaries.”
“CREATe's core concern is the future of creative production, and in particular the relationship between law and digital innovation. What is the role of copyright, among alternative modes of identification, appropriation and finance? Some see copyright as salvation, some as the enemy of innovation. CREATe’s research programme addresses this faultline.”

You can find the full schedule of the Festival here and can register here.

Wednesday, 15 June 2016

The CopyKat

There is yet another copyright lawsuit against the appropriation artist Richard Prince, after Dennis Morris LLC, the London-based photographer’s corporation, filed a complaint on the 3rd June in a Californian federal court seeking unspecified damages and any profits the artist and his dealer Gagosian Gallery made from Prince’s alleged use of three photographs of the 1970s punk rock band the Sex Pistols. According to the complaint, Prince used the images in work included in the 2011 exhibition Untitled (Covering Pollock) at Guild Hall in East Hampton. The claim says that Prince made "derivative works” and accuses the defendants of “producing and distributing large scale reproductions incorporating those derivative works” based on Morris’s photos of Sex Pistols bass player Sid Vicious. Morris is seeking a jury trial and demanding, among other damages, all of Prince and Gagosian’s profits from sales of the disputed works. The complaint also alleges that Prince used Instagram to promote the work for sale and includes a screenshot of a post (since deleted but pictured, left) on Prince’s Instagram account, featuring one of Morris’s best known photos of Vicious who died in 1979 from a drugs overdose.

Arts Technica reports that the lawyers behind the Prenda Law "copyright trolling" enterprise have lost their key appeal and will have to pay more than $230,000 in sanctions. The US Court of Appeals for the 9th Circuit issued a 12-page ruling upholding the sanction order that began Prenda's downfall, issued by US District Judge Otis Wright in 2013. The ruling wholly supports Wright's sanction and dismisses John Steele and Paul Hansmeier claims that due process rights were violated: "These consolidated cases began as minor copyright infringement suits, until courts nationwide started catching on to the plaintiffs' real business of copyright trolling," the ruling states. "Prenda Principals were found contradicting themselves, evading questioning, and possibly committing identity theft and fraud on the courts" and "The Prenda Principals have engaged in abusive litigation, fraud on courts across the country, and willful violation of court orders," the opinion states. "They have lied to other courts about their ability to pay sanctions. They also failed to pay their own attorney’s fees in this case." The third appellant, Paul Duffy, died last year.

All three major record labels, along with 50 other rights owners and platforms, including Spotify, Pandora, SACEM and YouTube, have committed to creating a new system to “dramatically simplify the way that music creators and rights owners are identified and compensated”. The new initiative will hopefully replace and surpass the stalled Global Repertoire Database - and provide a 'one stop' centre for users who want to use songs and sound recordings. The Open Music Initiative (OMI) has been founded by Berklee College of Music’s Institute for Creative Entrepreneurship (BerkleeICE), and has been publicly backed by Universal, Sony, Warner and many more – although as MBW points out - despite Google's YouTube being on board, Apple’s name is conspicuous by its absence.

The European Commission's public consultation on "neighbouring rights" for publishers  - otherwise known as the 'Google tax on snippets' CLOSES TODAY.  The right could potentially allow publishers to demand payment from search engines and content aggregators where they include short snippets that link to the original text. You must use the questionnaire on the EU website to respond

And the latest battle in what the difference is between 'inspiration' and what is 'appropriation' has kicked off in Los Angeles, where Led Zeppelin stand accused of copying of a song called “Taurus,” written by Randy Wolfe and performed with his band Spirit, into their epic "Stairway to Heaven". Those who have listened to recordings of each of the songs might think there is a strong similarity, but the legal team attorney for Zeppelin’s front man, Robert Plant, and lead guitarist, Jimmy Page, said any similarities were because the two songs both relied on “basic musical devices that are completely commonplace” and found in songs dating back centuries.  "Taurus" was released three years before “Stairway to Heaven” surfaced on Zeppelin’s untitled fourth album, commonly referred to as “Led Zeppelin IV.” In the wake of the jury decision in the "Blurred Lines" case, its unsurprising Plant and Page cancelled sows to attend the trial.   
And finally and this time from Canada, a federal court has ruled that that a number of companies must temporarily stop selling TV boxes that allow consumers to access content via streaming sites as they face a court battle over alleged copyright infringement. The plaintiffs, who include Bell and Groupe TVA, allege the TV boxes come with pre-loaded software that allows consumers to view copyrighted programming from illegal streaming sites . MTLFreeTV, one of the defendants, argued the boxes are similar to a tablet or computer, and the company does not develop, produce, service or maintain the software that comes with the boxes. Justice Danièle Tremblay-Lamer ruled that the companies must stop selling pre-loaded products until a the result of a trail in the matter.

Friday, 10 June 2016

Does Axl's photograph claim carry any weight?

Guns N Roses and now AC/DC frontman Axl Rose has filed six DCMA take down notices in what is seen as an attempt remove an unflattering photo of him from a 2010 Canadian concert from the web. The requests were filed on behalf of Rose by anti-piracy firm Web Sheriff, and all target examples of the same picture hosted on Blogspot and GoogleUserContent domains which have has spawned a series of 'Fat Axl' memes relating to the singer's increased weight with labels such as 'Sweet Pie of Mine', 'Take Me Down To the Bakery City' and 'Welcome to McDonalds'.

The original image was taken by Winnipeg Free Press photojournalist Boris Minkevich, who was initially unaware that any action was being taken over the image he snapped - and who is reported byTorrentFreak to have said that the only copyright being infringed is his: "The photo was stolen off our website with no permission granted by the Winnipeg Free Press".

However Web Sheriff told TorrentFreak that all photographers at the concert were said to have been required to sign an agreement passing copyright ownership of images taken to Rose's company, The photographer cannot remember whether he signed the agreeement or not. Web Sheriff's stateent reads "

“We can gladly confirm that all official / accredited photographers at [Axl Rose] shows sign-off on ‘Photography Permission’ contracts / ‘Photographic Release’ agreements which A. specify and limit the manner in which the photos can be exploited and B. transfer copyright ownership in such photos to AR’s relevant service company.” 

When pressed by TorrentFreak on whether or not Minkevich had signed a release, Web reportedly Sherriff responded

“[If a photographer] was there and taking shots without permission or authority, then other considerations / factors would come-into-play as to what such individuals can and cannot do in terms of attempting to commercially exploit the resultant images of someone else’s show,” 

In August 2015 George Chin wrote for Music Law Updates on this topic in the wake of Irish Times  refusal to publish photographs of Taylor Swift's sold out arena show in Dublin and a later Washington City Paper (USA) article headlined  “Why we’re not photographing the Foo Fighters” - with both publications critical of "Artist Photography Release Agreements" - which the latter opined were the “exploitation of photographers, pure and simple. If a streaming music service tried to use the band’s music for free, they’d have none of it.”

You can see the image here https://torrentfreak.com/axl-rose-sends-dmca-notices-to-google-targeting-fat-photo-160605/

Bring fairness to music licensing - a politcian's view

Jim Sensenbrenner
ARTICLE LINK: "Intellectual property rights are critical to our nation’s unsurpassed creativity and cultural development. I’ve long been an advocate for intellectual property rights because individuals deserve to be compensated for their work. However, the process in which these artists receive payment has become opaque. This is largely due to performing rights organizations (PROs), which operate in a convoluted fashion. The music licensing system in which artists are compensated must be clear and transparent for the good of artists, consumers and bar and restaurant owners.

Fairness in music licensing was brought to my attention in the early 1990s, when Wisconsin bar and restaurant owners from my district contacted me about being harassed in their places of business by representatives from the American Society of Composers, Authors and Publishers (ASCAP) — one of the three PROs in the U.S. While seeking payments from the small-business owners, ASCAP representatives were unnecessarily aggressive and combative."

More from this thought provoking and interesting blog article from Rep. Jim Sensenbrenner (R-Wis.) on the Congress Blog