1709 Blog: for all the copyright community

Friday, 31 July 2015

The CopyKat's Baked Cake Social

It seems Twitter is removing 'recycled' jokes which have been re-tweeted. First spotted by @PlagiarismBad, The Verge tell us that at least five separate tweets have been deleted by Twitter for copying this joke: "saw someone spill their high end juice cleanse all over the sidewalk and now I know god is on my side"  Olga Lexell, who, according to her Twitter bio, is a freelance writer in LA, appears to be the first person to publish the joke on Twitter. In a tweet she confirmed that she did file a request to have the tweet that copied her 'joke' removed. Eleonora has posted her thoughts on the IPKat here

The MPAA has sued MovieTube, owners of some two-dozen-plus streaming sites, alleging copyright infringement, according to a story from The Hollywood Reporter. MPAA members 20th Century Fox, Columbia Pictures, Disney, Universal, and Warner Bros. jointly filed a lawsuit in New York against a number of MovieTube-owned streaming sites. The group is asserting both copyright and trademark claims, and the complaint is filed against both John and Jane Does, and XYZ Corporations, as the MPAA is uncertain of exactly whom they are suing. In total, the MPAA lawsuit names 29 websites. The complaint asserts that the defendants are both willingly and openly breaking copyright laws, and that they are deliberately hiding their identities while doing so. More here.

This from Arts Technica: It's been two years since filmmakers making a documentary about the song "Happy Birthday" filed a lawsuit claiming that the song shouldn't be under copyright. Now, they have filed what they say is "proverbial smoking-gun evidence" that should cause the judge to rule in their favour. The "smoking gun" is a 1922 version of the "Happy Birthday" lyrics, predating Warner/Chappell's 1935 copyright by thirteen years and making the work public domain. That 1922 songbook, along with other versions located through the plaintiffs' investigations, "conclusively prove that any copyright that may have existed for the song itself... expired decades ago."   The original melody for "Happy Birthday to You" was composed in the late 1800s by school teacher Mildred Hill in Louisville, Kentucky. The song was a variation on a composition called "Good Morning to All," with lyrics penned by her sister, Patty Hill. Warner/Chappell said that there was no evidence that the Hills' successor - their sister Jessica Hill - had given up the sisters' copyright to the work. More here on the 1709 Blog and more on Above The Law here.

Librarians across Australia are cooking up a campaign to change the country's copyright laws. However, they want people to bake biscuits and cakes rather than picket Parliament. Social media users are being encouraged to cook a vintage recipe and share a photo of the result. The aim is to encourage the Attorney-General to look at changing the law so that unpublished (orphan) works are treated the same way as published ones. Executive director of the Australian Library and Information Association (ALIA) Sue McKerracher said the nation had "some rather strange copyright laws".

Thursday, 30 July 2015

Old Money, Old Navy, Fabric Copyright Infringement Suit, Oh Dear!

Sugartown Worldwide LLC, the owner of the trademark Lilly Pulitzer and the distributor of the famous fashion brand, is suing Old Navy and its parent company Gap, claiming that the retailer infringed its copyright when it sold several models of clothes and fashion accessories bearing prints which Plaintiff claims were copied from two of its original designs. The case is Sugartown Worldwide LLC v. Old Navy (Apparel), LLC et al, 1:15-cv-02633.
Lilly Pulitzer was a Palm Beach socialite who married a member of the Pulitzer family (as in Pulitzer Prize). She started designing dresses, somewhat by accident, in the late Fifties. As the story goes, she opened a citrus juice stand and needed a dress which would hide stains. The result was a simple shift cut in bright fabrics. The designs often featured animals, beach themes and sunshine, and used a colorful palette evoking life under the sun, at least for the well-heeled and well-moneyed.

The company enjoyed great success in the Sixties and Seventies. After an eclipse, the brand came back in the Nineties, and is still going strong: the complaint states that there are some one hundred Lilly Pulitzer stores in the U.S. selling clothes and accessories, which are also sold in some department stores and online. A Lilly Pulitzer collaboration with discount retailer Target recently sold out the first day of its release.
According to the complaint, Plaintiff’s design team created in 2011, as a work for hire, the “High Tide Design,“ which features the image of a beach, complete with waves and parasols, in blue tones, with some green and yellow accents. Plaintiff registered this design with the U.S. Copyright Office. The “High Tide Design” was incorporated in 2012 in several Lilly Pulitzer models of clothes and accessories.
The Lilly Pulitzer design team also created in 2013 a “Sparks Fly Design,” featuring red sailing boats over a dark blue sea, illuminated by yellow fireworks (see p. 7 of the complaint). Plaintiff also registered this design with the U.S. Copyright Office and used it on some on its models. Some of the products, however, depicted the “Sparks Fly Design” in different color schemes than the original one, such as dark blue boats over a white background.
U.S. copyright law does not protect clothes or even accessories, because they are useful articles, described by the Copyright Act as articles “having an intrinsic utilitarian function” and which are not copyrightable. However, fabric designs, if they are original enough, can be protected by copyright.
The complaint alleges that, in 2015, Old Navy manufactured and sold clothes and accessories “bearing a design copied from and substantially similar to the High Tide Design” and provides images of some of these allegedly infringing goods (see p. 10 of the complaint). The complaint also shows a side-by-side comparison of a pair of printed women’s shorts with a Old Navy pair of women’s printed shorts, which the Plaintiff claims copied the original Lilly Pulitzer design.
The complaint further alleges that Old Navy copied in 2015 the Sparks Fly Design and manufactured clothes and accessories bearing the firework print. The complaint provides a side-by-side comparison of a Sparks Fly Design Lilly Pulitzer model and an Old Navy pair of shorts featuring a firework print.
A plaintiff alleging copyright infringement must convince the court his protected work was copied by proving that defendant had access to the protected work. Access is the opportunity to view or to copy plaintiff's work. A plaintiff must also prove that the original and the allegedly infringing work are substantially similar.

There is no doubt in our case that Plaintiff could prove access to its designs, as they were sold to the public in 2011 and 2012. By showing its original designs side by side with some of the Old Navy models, Plaintiff is attempting to convince the court that the designs are substantially similar. The suit was filed in the Northern District of Georgia, which is part of the Eleventh Circuit, where the courts consider that there is a "substantial similarity" between two works if "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work” (see SunTrust Bank v. Houghton Mifflin Co. at 1266).
This is probably the reason this suit was filed in Georgia, and not in Pennsylvania which is where Plaintiff has its headquarter, and is within the Third Circuit, where substantial similarity must be first assessed by experts before the court may determine “whether a "lay-observer" would believe that the copying was of protectible aspects of the copyrighted work (see Dam Things from Denmark at 562).
There is no need for experts in the Eleventh Circuit, and only the opinion of average lay observers is necessary. The Complaint alleges that the Old Navy models “are so striking that consumers and commentators have remarked upon them, referring to the infringing designs as Lilly Pulitzer “copies”, “dupes”, or “knock offs” and provides as evidence comments posted on Instagram personal blogs, and Poshmark, a site allowing users to sell pieces of their wardrobe, marveling about how similar the Old Navy models are to the original Lilly Pulitzer fabric designs (see here for 30 pages of such evidence.)

As “an average lay observer” is, in the Eleventh Circuit, “an individual who, without any vested interest in the governing issue, is sufficiently informed and alert to identify precisely the differences in the competing designs, yet sufficiently informed and independent to fairly identify and assess the similarities; that is, at a minimum, neither an engaged expert nor an oblivious passerby” (see John Alden Homes, Inc. v. Kangas at 1344), Plaintiff may have found online a trove of evidence in the chatter of consumers, who obliviously know the brand, yet are not fashion experts or professionals. Lilly is not pulling the Web 2.0 punches.

Image of fabrics is courtesy of Flickr user heather under a CC BY-NC-ND 2.0 license
Image of tag is courtesy of Flickr user vintinspiration under a CC BY-NC-ND 2.0 license

Of catapults and caterpillars: hubbub over the Hub

Waiting for the Champagne ...
Once upon a time, launches involved ships and smashing bottles of Champagne against their sides as they slid gracefully into the water. Launches nowadays seem to involve mainly websites and online services; the Champagne is then consumed at an appropriate reception and the guests slide off as gracefully as they can manage under the circumstances.  This blogpost brings news of a launch and also information about the UK's Copyright Hub, for which we have been waiting for development for what seems like the time it takes Harper Lee to publish her sequels. The news, embargoed until the very moment that this blogpost went live, reads like this, in relevant part:
New UK copyright system launched by IP Minister Baroness Neville-Rolfe [this is a bit of an overstatement: most of the UK copyright system remains regrettably much the same today as it was yesterday. Never mind ...]

* First public use of The Copyright Hub and Digital Catapult’s ground-breaking technology [this itself is a great British invention: catapults have previously only been used for hurling objects through the air. Ground-breaking is normally done by caterpillars, not catapults]

* Agreement to use new system in Australia announced

* Launch of the public information website copyrightdoneright.org

Intellectual Property Minister Baroness Neville-Rolfe became the first public user of The Copyright Hub and the Digital Catapult’s innovative new copyright technology at an event in London today. Using a single mouse-click, the Minister was able to secure permission to use a copyrighted [we don't normally use this word in the UK, since there is no verb "to copyright": the word "copyright" can happily used an adjective, as in "a copyright image"] image provided by project partner 4Corners Images (www.4cornersimages.com).

The event marked the first time that The Copyright Hub’s technology – a platform developed and supported by the Digital Catapult - has gone live. The technology, which will be extended to other forms of media over the next few months, has been developed to enable creators to give permission for their work to be used both commercially and by members of the public.

Richard Hooper, Chairman of The Copyright Hub, commented: 
“This is a proud moment for The Copyright Hub team. The government has supported us since the whole process began with the Hargreaves Report in 2011, and now we are beginning to see a new era for copyright put in place. Given continuing support from industry and government, this could be a world-leading initiative on a par with the creation of the web itself.” 
There are now nearly 100 Copyright Hub applications planned, with ten under active development, including photo/picture library Mary Evans and the British Film Institute (BFI). In addition, i-publishing goes live with its first Hub application today and in the next few weeks Capture will have incorporated Hub services in their application, reaching many more picture libraries.

The international potential of the new technology was confirmed by the news that The Copyright Hub has agreed a new partnership with Australian licensing organisation the Copyright Agency. As part of this agreement, The Copyright Agency will be contributing to The Copyright Hub’s core funding.

The technology is expected to eventually be rolled out in Australia across all of the content licensed by the Copyright Agency – text, images, art, and survey plans. It continues the successful international work of The Copyright Hub, which is also working in the U.S. with the Copyright Clearance Centre and the Motion Picture Association of America and with an increasing number of other public and private partners across Europe and the world.

The Copyright Hub has also announced that it has launched a new website, copyrightdoneright.org to generate support for its activities. It highlights the support already received from over 45 organisations and many individuals, and invites others to get involved by contributing funding, time, Hub Applications and code [it's a lovely, friendly website but is it keeping its teeth well hidden? Key Supporters include Getty Images and Bridgeman Images ...].
It's good to find out what has been happening -- and it's even better to see some constructive efforts being made to facilitate the licensing of copyright rather than its infringement. We shall be watching with interest to see what the Hub can deliver and how greatly the copyright-consuming public takes to it.

Tuesday, 28 July 2015

Photographer Claims Harley Davidson Used Photograph without Authorization

Lisa Michael, a North Carolina professional photographer, filed a complaint on July 21 against Harley-Davidson and three of its dealers, alleging that their use of one of her photographs in an advertising brochure had not been authorized and thus infringed her copyright. The case is Michael v. Harley-Davidson, Inc. et al, 5:2015cv00346.
In September 2014, Plaintiff took a picture of a man sitting on a Harley-Davidson motorcycle and licensed it to a local Harley Davidson dealer, for limited use only in online advertising. The photographer included a digital watermark on the photograph to indicate that the picture came from her personal website.

Plaintiff later discovered that this photograph had been used as part of an “Iron Elite” advertising campaign, celebrating African-American Harley-Davidson riders. Plaintiff applied to register the copyright with the Copyright Office on July 6 before filing her suit in the Eastern District of North Carolina. The original licensee of the photograph has not been named as defendant to the suit.
Plaintiff claims that Harley-Davidson and several Harley-Davidson dealers are jointly and severally liable for damages, and she is demanding a jury trial.
The complaint alleges that Harley-Davidson created the “Iron Elite” campaign and offered a fabric patch featuring the silhouette of the rider in the original photograph. The silhouette was drawn in black and white over a black background surrounded by orange, using thus the colors of the Harley-Davidson trademark. The”Iron Elite” site explained that the patch had been created as a “special, limited edition” to pay tribute to famous African-American Harley-Davison users, and informed the public that it could be obtained at several Harley Davidson locations, which are the other Defendants to this suit.
Neither the online campaign site, nor the patch, indicated that Plaintiff was the author of the original work used to create the patch. This article states that Plaintiff had posted to her followers on Twitter that “My image chosen to represent HARLEY DAVIDSON USA IRONELITE 2015! © lisamichael.com", but that the tweet was later deleted. I could not verify this information, as Plaintiff’s Twitter account is now private.
The photographer filed a copyright infringement suit, and also claimed that the unauthorized use of her photograph amounts to false designation of origin and unfair and deceptive trade practices. The Complaint states that Plaintiff’s “label,” that is, the digital watermark on the photograph, “identified Plaintiff as the source of that work” and that removing it constitutes unfair and deceptive trade practice and false designation of origin.
This is an attempt to use trademark law to palliate the absence of moral rights in U.S. law. However, the court is likely to consider the patch to be reverse passing off, which is the misrepresentation of someone else’s goods or service as one’s own. In 2003, the U.S. Supreme Court held in Dastar that the phrase “origin of goods” in Section 43(a) of the Lanham Act “refers to the producer of the tangible goods that are offered for sale, and not the author of any idea, concept, or communication embodied in those goods” and thus closed the door to litigants wishing to use the Lanham Act as a way to protect their right to attribution.
The complaint alleges that the campaign featuring the infringing photograph has been reproduced and distributed on social media by third parties, but, unlike this recent case, Plaintiff did not attempt to sue these social media users for contributory infringement.
[Here is a video of Brigitte Bardot singing Je ne reconnais plus personne en Harley-Davidson, a song written by Serge Gainsbourg.

Image is courtesy of Flickr user lePhotography user under a CC BY-NC-ND 2.0 licence.

International Copyright Law: text and cases reviewed

International Copyright Law: U.S. and E.U. Perspectives Texts and Cases is the title of a handsome tome compiled by Jane C. Ginsburg (Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia University, School of Law, New York) US and Edouard Treppoz (Professor, University Jean Moulin Lyon 3, France), published by Edward Elgar Publishing a little earlier this year.

According to the publisher's web-blurb:
International copyright law is a complex and evolving field, of manifest and increasing economic significance. Its intellectual challenges derive from the interlocking relationships of multiple international instruments and national or regional laws and judgments.

This ground-breaking casebook provides a comprehensive and comprehensible account of international copyright and neighbouring rights law, from the cornerstone of the 1886 Berne Convention and the Rome Convention of 1961, through to the 1994 TRIPS Agreement and the 1996 and later WIPO Copyright Treaties. It examines how national laws have implemented the international norms, and explores the issues these sources have left ambiguous or unresolved.

Ginsburg and Treppoz, two of the leading lights in international copyright law, bring their expert commentary and provocative questions to judiciously selected extracts from cases, analytical texts, and the texts of the treaties themselves, to develop a deeply nuanced understanding of this field. The approach centres on comprehending the international law and international treaties and, rather than analyzing the treaties in turn and in abstract, offers a concrete issue-by-issue treatment of the subject.
The authors focus principally on WIPO-administered treaties and TRIPS for their international material, thus leaving the Universal Copyright Convention out in the cold -- which is where it is. Included however is the little-known Austro-Sardinian Convention of 1840. The chapters adopt a methodology of addressing first the international source materials, then focusing on relevant provisions of US and European Union law, making allowances where necessary for the fact that there is not always a one-to-one correspondence between the materials contrasted. The authors also supply questions that demand a fairly acute understanding by readers of the issues highlighted in the primary materials (asking for example why a party should wish to bring proceedings in one jurisdiction rather than another). The contents are highly current and include, for example, the 22 January ruling of the Court of Justice of the European Union in Case C-419/13 Art & Allposters.

This blogger has never studied or taught international copyright law, either on its own or as a medium for a comparative study of US and EU approaches, though the subject is one that he has encountered on a one-off basis, leaving him with that uncomfortable feeling of having been slightly ambushed, on more times than he cares to recall. This book looks like just the thing he could have done with -- not merely for the content but for the direction of the questions posed.

The paperback version is a pretty hefty volume at xxviii + 849 pages. It's a good deal cheaper than the hardback (full price £45 as against £155 -- would you pay more than £100 for hard covers? -- and available with the publisher's online discount at £36 as against £139.50). The respective hard and soft soft cover ISBNs are 978 1 78347 797 5 and 978 1 78347 799 9. The book's web-page is here.

Monday, 27 July 2015

Digitised out-of-print books and authors' rights: a new question for the CJEU

Case C-301/15 Soulier et Doke is on its way from France to Luxembourg for a ruling by the Court of Justice of the European Union (CJEU). The topic involves collecting societies and the right to authorise the reproduction and the representation in digital form of out-of-print books. The court asks:
Do the provisions ... of Directive 2001/29 [the InfoSoc Directive] preclude legislation… that gives approved collecting societies the right to authorise the reproduction and the representation in digital form of ‘out-of-print books’, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that it lays down?
As usual, the UK Intellectual Property Office has to take a position on whether the government should be advised to enter the fray or not. Your opinion may therefore be helpful. If you would like to comment on this case, just email policy@ipo.gov.uk by no later than Friday 7 August 2015.

The Lee Rigby portrait: a copyright dispute without any heroes

"Fury as Lee Rigby picture is removed from military memorial amid copyright row between MoD and photographer" is the lengthy title of this piece by Mail Online's Defence Correspondent Mark Nicol. In relevant part, this article reads as follows:
The disputed image reached as far as New York
"The picture used to pay tribute to murdered Fusilier Lee Rigby has been removed from an official Roll of Honour to fallen troops after the photographer who took it started legal proceedings against the Government. The image, which shows the 25-year-old wearing his ceremonial uniform, has been seen by millions since it emerged in the wake of his death at the hands of Michael Adebolajo and Michael Adebowale outside Woolwich Barracks in 2013 [you can see the image on the Mail Online website here].

Now the picture has been removed from the Ministry of Defence’s commemorative website after photographer Sam Szymanski claimed defence officials distributed the image without his permission. The photo will not be reinstated unless a settlement is agreed. The row has also led to eight pictures taken by Szymanski of British soldiers killed in Afghanistan – including Victoria Cross winner Lance Corporal James Ashworth – being removed from the Government site, in a move that has shocked bereaved relatives.

Szymanski, 62, said he regretted the emotional impact of his legal action but insisted he had tried to settle the dispute amicably before instructing lawyers to contact the MoD on his behalf. [He] said: 
‘I tried many times to get this sorted out before taking this step but officials I spoke to were dismissive. As a former soldier, I appreciate it must be awful for the families to go online and discover pictures of their sons have been removed. But the MoD took liberties and I got ripped off. I’ve made £8,000 from worldwide usage of the Lee Rigby image, that’s all. I’m not cashing in on anyone’s grief but I am entitled to make a living. My action against the MoD is about principle, not money. 
Lee liked the picture and ordered a set for his family. My understanding is, after he was murdered, defence officials obtained a copy of my photo from Rigby’s family. They then distributed it through a press agency and it went around the world. It’s been used thousands of times, most of the time without anyone bothering to credit me".
A MoD spokesman said: ‘The MoD has been approached by solicitors acting on behalf of an independent photographer regarding the use of a portrait of Fusilier Lee Rigby, which appeared on official websites. The MoD has removed this photo from official websites, pending resolution of the issues'".
The Copyright, Designs and Patents Act 1988 (CDPA), despite its length and sometimes obsessive attention to detail, contains no provision that permits the unauthorised use of an image on account of public sentiment, nor one that protects against the effects of private grief.  The Ministry of Defence in the UK has a budget that is £38 billion for 2014-5, which suggests that it could pay the sum requested -- but that massive amount represents the outcome of several years' financial stringency and the Ministry remains under pressure to reduce it further.  The payment of copyright royalties, and presumably damages where rights are infringed, may thus not be one of its highest priorities -- but maybe a bit of in-house copyright law training now could save further unnecessary expense in the future.

One can only feel sympathy for the widow of Fusilier Lee Rigby, an innocent bystander in a copyright dispute which she innocently initiated by letting the Ministry have a copy -- an act which itself falls not so far from being an infringement itself through 'authorisation' under section 16(2) of the CDPA.

Thanks to Chris Torrero for supplying the lead.

Saturday, 25 July 2015

Annotated state laws of Georgia on my Mind

An interesting legal scuffle has emerged in the US State of Georgia concerning the copyright claimed in the annotated version of the Georgia State Code, published on behalf of the State by LexisNexis.

The State of Georgia is suing Carl Malamud for re-publishing the Official Code of Georgia Annotated (OCGA) without permission. The State claims that unlike the underlying state law which is in the public domain thanks to §105 of the US Copyright Act 1976, the annotations and aggregation of the relevant caselaw by LexisNexis which, along with the statute law, comprise the OCGA, constitute an original work which is subject to copyright. Indeed according to the State's complaint (pdf) to the District Court for the District of North Georgia, the copyright has been registered with the US Copyright Office.

As LexisNexis, through its subsidiary company Matthew Bender and Co, Inc, was contracted to produce the OCGA, the claimant says it is a work-for-hire, and therefore the State is first owner of the copyright and thus has standing to bring the claim. Carl Malamud is being sued through his corporation Public Resource.Org.

In a somewhat ironic turn of events LexisNexis was itself sued back in 2012 for copyright infringement when it included legal submissions from a lawyer called Edward White in its 'Briefs, Pleadings and Motions' database. (Edward L White v Westlaw and LexisNexis SDNY 12 Civ 1340 (JSR)). On that occasion the use of the attorney's work by Westlaw and LexisNexis in this manner was found to be transformative and therefore fair use.

We don't yet know how Carl Malamud will defend this action. One has to hope he (or more likely his attorney) will do a rather more legally cogent job than the strident argument put forward by Mike Masnick on the TechDirt website. Masnick's comments largely follow those of Malamud himself (see link below) and centre on his assertion that the law should be freely available to the citizens of the State of Georgia (and others) and this move to protect the annotated version of the code somehow violates that principle. However a more considered view shows that the State of Georgia's case has some merit.

Firstly it is settled law that 17 USC §105 (Subject matter of copyright: United States Government works) which denies copyright protection to government works, includes both the statutes and the judicial opinion and rulings of the courts at Federal and State level. This follows a number of landmark cases including Wheaton v Peters 33 US (8 Pet) 591, 668 (1834), Banks & Bros v West Publishing Co 27 F 50 (CCD) Minn, 1886, right up to the case of the State of Georgia v The Harrison Company 548 F Supp 110 (N d Ga 1982). Indeed the last cited case involves many of the same factors as in the current case. Perhaps the best summary of the situation concerning the so-called Edicts of Government can be found in the US Copyright Office's Compendium Section 206.01:
206.01 Edicts of government.

Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.
It should be noted that although edicts of government include state legislation and court judgments etc, the overall purpose of §105 applies only to the Federal government and not to the States. Thus if the annotations, as opposed to the state code itself, are held to copyrightable in their own right, the State of Georgia is not legally bound to release them into the public domain. §101 of the Copyright Act says this about derivative works:
A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. (my added emphasis)

So far Carl Malamud has not filed his response to the claim with the court, but from a letter he wrote to a number of Georgian politicians about the case, it appears that unless he can come up with a compelling argument that his is fair use, it would seem that all the court needs to decide is whether the annotations provided by LexisNexis amount to an original work of authorship. Given that users need to pay to access the annotated version they publish*, we have to assume that LexisNexis think it is.

* Westlaw also produce their own annotated version of the Georgia State Code which retails at $1,753 for the hardback 3 volume set, in which they claim copyright.